One of our nation's oldest regulatory regimes, the International Traffic in Arms Regulations (ITAR), turned 90 years old today. A regulatory program to control exports of defense articles issued during the dawn of the radio era, the ITAR still has outsized relevance in today's advanced-technology and digital domains.
The first edition of the ITAR was issued on October 10, 1935 in a small pamphlet, before the start of the Federal Register, and was only available from the administering agency, a store or subscription service run by the Government Printing Office, or a subscribed local library.
The ITAR came about as a result of the Neutrality Act of 1935, which was signed into law on August 31, 1935, and President Roosevelt's resulting proclamation of September 25, 1935, which was the first version of what would eventually become the U.S. Munitions List (USML). Although that first proclamation of "the articles that shall be considered arms, ammunition, and implements of war" for purposes of the Neutrality Act contained only six simple categories (all of the first ITAR may be viewed here), it set the stage for enhanced wartime and modern export controls—predating even the laws pertaining to exports of other items that would set up the Export Administration Regulations under the Department of Commerce.
Today, the ITAR stands at the front line of our nation's foreign policy and national security. Its modern USML describes and controls all manner of advanced technologies from certain aircraft and satellites, to specialized software and electronics. The ITAR enables unrivaled reliance on private business to protect and equip our warfighters, and to provide them with a critical military and intelligence advantage over would-be adversaries. In turn, the government, through requirements in the ITAR, expects private companies to safeguard these technologies and advantages and share them only with foreign persons who have been vetted and authorized.
Importantly, the modern ITAR regulates not only beyond-the-border physical exports but also digital and deemed exports of technical data—an ITAR term of art that includes software, code, algorithms, and other digital information. Providing or allowing access to technical data to foreign persons in the United States, even accidentally, is "deemed" to be an export to all countries in which that person holds or has held citizenship or permanent residency. Consequently, in the digital age, the ITAR requires careful handling and access restrictions designed to prevent unknown and unauthorized foreign persons from receiving or being able to access that kind of sensitive data.
Although it is now a nonagenarian, the evolution of the ITAR shows it can be ageless and adaptive to modern environments and practices. Companies, even young ones, should be aware of this concept of not just physical but also digital borders, and keep up with the ITAR's ask for careful stewardship of sensitive technologies and data.
Goodwin's Global Trade attorneys have vast experience with the ITAR and helping companies, from emerging startups to established standouts, expand or improve their regulatory compliance procedures.
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