               Constitutionality of Proposed Revisions of
                the Export Administration Regulations

Proposed revisions of the Export Administration Regulations dealing with the export of
  technical data to foreign nationals apply a prior restraint, in the form of a licensing
  requirement, to a wide variety o f speech protected by the First Amendment. There is
  thus a considerable likelihood that in their current form the regulations would be
  invalidated as unconstitutionally overbroad. T he regulations would also be vulnerable
  to constitutional attack on grounds of vagueness. If the regulations were cast not as a
  licensing scheme but as a form o f subsequent punishment, they could cover a far
  broader range o f conduct.
A licensing system is likely to be held constitutional only if it applies narrowly to exports
  which are likely to produce grave harm under the test set forth in New York Times Co.
  v. United Stales, 403, U.S. 713 (1971).

                                                                            July 28, 1981
        M EM ORANDUM O PIN IO N FO R T H E DIRECTOR,
   C A P IT A L GOODS PR O D U C T IO N M A TERIA LS DIVISION,
                  D E PA R TM EN T O F CO M M ERCE

   This will respond to your request for the views of this Office on the
constitutional issues raised by your draft revision of Part 379 of the
Export Administration Regulations. Those regulations clarify the cir­
cumstances in which a license is required for the export of technical
data to foreign nationals. W e believe that the regulations, as currently
drafted, have a number o f unconstitutional applications, and that they
should therefore be substantially revised in order to meet the constitu­
tional objections. In the discussion below, we offer a general statement
of our reasoning, together with some suggestions for possible revision.

                                     I. Background

  T he general purpose of the regulations is to require a license before
the “export” of “technical data,” subject to tw o exceptions discussed
below. U nder the regulations, technical data is defined as “information
and know-how o f any kind that can be used, or adapted for use, in the
design, production, manufacture, repair, overhaul, processing, engineer­
ing, development, operation, maintenance, or reconstruction of com­
modities.” The term “commodity” encompasses a wide range of articles
com piled on the Commodities Control List. Many of the articles fall
generally in the broad category of “high technology” items, including,

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but not limited to, items subject to direct use for military purposes.
However, the definition of commodities also embraces items with only
indirect military application. An “export” is defined as an actual ship­
ment or transmission of technical data out of the United States; any
release of technical data in the United States with knowledge or intent
that the data will be shipped or transmitted from the United States to a
foreign country; and any release of technical data of United States
origin in a foreign country.
   Under the regulations, a critical distinction is made between “basic
research”—research “directed toward ah increase in knowledge”—and
“applied research”—research “directed toward the practical application
of knowledge.” In addition, “development” is defined as the systematic
use of knowledge directed toward the design and production o f useful
prototypes, materials, devices, systems, methods, or processes.
   The regulations grant a general license for two broad categories of
technical data. The first category provides a general license applicable
to all destinations and includes three subcategories, of which the first
consists of data “made generally available to the public” through re­
lease at conferences that are open to the public in the sense that the
general public or a range of qualified participants is eligible to attend.
This license appears designed to cover conferences in which the infor­
mation will not be closely held because of the generally open nature of
the proceedings. The second subcategory consists of exports resulting
from “basic [scientific] research,” but “applied research” is specifically
excluded from this license. The third consists of data “released through
formalized classroom instruction . . . at commercial, academic, govern­
ment or private institutions,” provided that the instruction does not
give access to applied research or development activities.
   The second broad category provides a general license to a limited
number of countries for two subcategories of technical data. The first
consists of data in such forms as manuals or instruction books, provided
that they are sent as part of a transaction directly related to commod­
ities licensed for export and that they are not directly related to the
production of commodities wholly or in part. The second subcategory
includes technical data supporting a bid, lease, or offer to sell.
   For all other exports of technical data, a license is required.
                              II. Discussion
   The Export Administration Regulations represent an effort to serve
the legitimate interests of the United States in controlling the dissemina­
tion of information to foreign countries, especially when the result of
such dissemination may be the development of military equipment. The
courts, however, have been almost invariably' unwilling to uphold li­
censing schemes that require government approval before particular
information may be disclosed. Such schemes amount to “prior re­

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 straints,” which are presumed invalid and subject to an exceptional
burden o f justification. See New York Times Co. v. United States, 403
U.S. 713 (1971). The courts have never held that the technical and
scientific materials involved here—which, to be sure, do not contain
political speech—are entitled to less than full protection under the First
Amendment. In order to ensure that the regulations at issue here will
survive judicial scrutiny under the First Amendment, we believe that it
will be necessary to revise them and thus to guarantee that the legiti­
mate interests that they attem pt to promote will in fact be served if the
regulations are challenged in court.
    In a recent memorandum, this Office commented on the constitu­
tional issues raised by a revision of the “technical data” provisions of
the International Traffic in Arms Regulations (ITAR). See Memoran­
dum Opinion of July 1, 1981, from Theodore B. Olson, Assistant
A ttorney General, Office of Legal Counsel, for the Office of Munitions
Control, Department of State.0 In that memorandum, we divided the
technical data provisions of the IT A R into three general categories,
applying a separate First Amendment analysis to each. The first cate­
gory included transactions involving arrangements entered into by ex­
porters to assist foreign enterprises in the acquisition or use of technol­
ogy. Follow ing the decision in United States v. Edler Industries, Inc.,
579 F.2d 516 (9th Cir. 1978), we concluded that technical data exported
during the course of such transactions fell into the same general cate­
gory as communications made during the course of a criminal conspir­
acy. The courts treat such communications not as speech protected
from prior restraint, but as an integral part o f conduct that the govern­
m ent has a right to prevent. See Ohralik v. Ohio State Bar Ass’n, 436
U.S. 447, 456 (1978), and cases cited. We concluded, therefore, that
technical data transmitted during the course o f such transactions could
constitutionally be subjected to a licensing requirement.
   The second category consisted o f technical data divulged for the
purpose o f promoting o r proposing the sale o f technical data or items
on the munitions list. W e concluded that this form of “commercial
speech” would probably not be held subject to the prior restraint
doctrine in light of the low er level o f protection sometimes accorded to
that speech and the substantial government interests at stake. See
Central Hudson Gas & Elec. v. Public Service Com m ’n, 447 U.S. 557
(1980).
   The third category consisted of technical data disseminated by an
exporter who is unconnected with any foreign enterprise, but who
knows o r has reason to know that the data may be taken abroad and
used there in the manufacture or use of arms. Speech in this category,
we concluded, would generally be protected from prior restraint. The

  0 Note: T he July 1, 1981, Memorandum Opinion is reprinted in this volume, at p. 206, supra. Ed.

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Court has made clear that the First Amendment protects the right o f
Americans to communicate with foreigners, even if the foreigners are
citizens of adversaries of the United States. See Lamont v. Postmaster
General, 381 U.S. 301 (1965); see also Kleindienst v. Mandel, 408 U.S.
753 (1972).1 The Court has also made clear that a prior restraint can be
imposed only in the most compelling circumstances. See New York
 Times Co. v. United States, 403 U.S. 713 (1971). In the absence of such
circumstances—such as a grave and immediate threat to national secu­
rity, as where important military information is being communicated to
an adversary for current use against the United States—speech falling
in this category is protected from prior restraint. See id.
   We believe that this general framework is the proper one from which
to analyze the restrictions at issue here. Applying that framework, it is
apparent that the revised regulations apply a prior restraint, in the form
of a licensing requirement, to a wide variety o f protected speech falling
in the third category described in our memorandum on the ITAR. F o r
example, scientists and researchers must obtain a license for exports o f
technical data resulting from applied research. The results of such
research are, however, entitled to full protection under the First
Amendment. Similarly, the regulations subject university instruction to
a licensing requirement if the instruction includes applied research o r
development activities. This requirement applies a prior restraint to
protected speech and is thus impermissible except in the most compel­
ling circumstances. For example, we do not believe that the courts
would uphold a requirement that a professor obtain a license before
“releasing” information to foreign students simply because the informa­
tion may be used in the overhaul of certain kinds of computer chips.
The same considerations suggest that an American scientist could not
be barred in advance from informing his colleagues, some o f whom are
foreign nationals, of the results of an experiment that could help
produce some other high technology item. Other examples could read­
ily be imagined. In more general terms, the regulations cover a wide
variety of speech that is constitutionally protected. We believe that
they should therefore be substantially narrowed. Indeed, the range o f
impermissible applications is sufficiently great, and the number of per­
missible applications so comparatively small, that there is a considerable
likelihood that in their currrent form the regulations would be invali­
dated as substantially overbroad under Broaderick v. Oklahoma, 413
U.S. 601 (1973).
   We note in addition that the regulations are vulnerable to claims o f
vagueness in two critical respects. First, the distinction between “ap­
plied research” and “basic research” seems to be too thin to support the

   ‘The Court has apparently not authoritatively determined whether and to what extent Americans
have First Amendment rights while travelling abroad. See Haig v Agee, 453 U.S. 280 (1981) (assuming
such rights arguendo).

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conclusion that “applied research” can in all contexts be subjected to
the licensing requirement. Second, the definition of an export as a
“release o f technical data . . . with knowledge or intent that the data
will be . . . transmitted from the United States to a foreign country” is
highly ambiguous. In order to be subject to the licensing requirement,
must the speaker know w ith a high degree o f certainty that the data
will be so transmitted? O r, as we have been told informally, is it
sufficient if he knows that foreign nationals are among his audience? If
the first interpretation is adopted, the regulations will of course be
substantially more narrow.
   W hile we are not at this stage prepared to describe in detail what
materials may, consistent w ith the First Amendment, be covered by the
regulations, we would like to conclude with some general observations.
First, the legal difficulties in this context arise largely because of the
profound constitutional hostility to prior restraints. If the regulations
w ere cast, not as a licensing scheme, but as a form of subsequent
punishment, they could cover a far broader range of conduct. Under
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the government may
punish speech that is both “ directed to inciting or producing imminent
lawless action” and “likely to . . . produce such action” (footnote
omitted). Similar considerations may justify subsequent punishment for
the export of technical data in circumstances in which the exporter
knows or intends that the result will likely be harmful to the national
security interests of the United States. In order to implement such a
scheme of subsequent punishment, persons planning to “export” might
be given an opportunity, but not required, to seek advice from the
Secretary o f Commerce as to whether the particular disclosure is pro­
hibited by law.
   Second, if a licensing system is to be retained, the constitutional
prohibition against prior restraint suggests that it may be applied only
to exports that are very likely to produce grave harm. See New York
Times Co. v. United States, supra. Under this rationale it may be permis­
sible to require a license before a person may disclose (with the requi­
site scienter) technical data having direct military applications to an
adversary of the United States. Apart from this limited category, we
believe that the prior restraint doctrine bars a licensing requirement.
   As noted above, these comments are directed to the current version
o f your regulations. We will be pleased to provide further comments or
assistance with respect to any future revisions.

                                          T   heodore   B. O l s o n
                                         Assistant Attorney General
                                          Office o f Legal Counsel


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