354 F. Supp. 3d 448
S.D. Ill.2019Background
- Plaintiff Stagg P.C., a law firm that advises on export controls and publishes educational materials, seeks to republish and present technical data that it contends is "public domain" but was not authorized into the public domain by the State Department.
- The ITAR (22 C.F.R. pts. 120–130) requires licenses for exports of "technical data" related to defense articles, but excludes "information in the public domain" defined by eight specific categories (22 C.F.R. §120.11(a)).
- The State Department issued a proposed 2015 rule and other statements suggesting that information made public without government authorization or aggregated from public sources might not qualify for the public-domain exclusion; those proposals were not adopted.
- Plaintiff alleged the ITAR (as interpreted) effects an unconstitutional prior restraint and is unconstitutionally vague/overbroad; it sought injunctions and ultimately cross-moved for summary judgment after appeals denied preliminary relief.
- The court framed key interpretive disputes: whether (1) public-domain status requires prior government authorization, (2) aggregation/modification removes public-domain status, (3) the Internet counts as a public "library," and (4) uploading to the public Internet constitutes a "deemed export."
- The Court concluded the ITAR text is unambiguous on core points, rejected plaintiff's facial constitutional claims, denied plaintiff's summary judgment, and granted the government's cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does public-domain status require prior government authorization? | Stagg: ITAR as interpreted requires ex ante authorization to republish material that entered public domain without approval. | State: Public-domain exclusion does not require prior government authorization; materials in enumerated sources are exempt. | Held: ITAR text does not require prior authorization; no basis to read such a prerequisite into §120.11(a). |
| Does aggregation/modification of public-domain material remove exclusion? | Stagg: Aggregating/modifying public-domain data creates new technical data subject to ITAR licensing. | State: Aggregation only creates new technical data in limited circumstances; aggregation alone does not strip public-domain status. | Held: Text does not disqualify material solely for aggregation/modification; aggregation may matter only if it produces new characteristics that trigger ITAR. |
| Does the Internet qualify as a public "library" or otherwise make material public-domain? | Stagg: Internet should be treated like a public library; online materials can qualify for the exclusion. | State: The enumerated list is exclusive and does not broadly include the entire Internet; online-only materials may not qualify. | Held: "Library" can include digital libraries, but the ITAR's eight-category list is an exclusive list; the entire Internet is not per se a public-domain source. |
| Is uploading to the public Internet an "export"/"deemed export" under ITAR? | Stagg: Publication should not be treated as an export; treating Internet publication as an export improperly regulates domestic speech. | State: Uploading that makes technical data accessible to foreign persons is a "deemed export" and thus an export requiring authorization. | Held: Uploading to the public Internet can be a "deemed export" (transfer to foreign persons in U.S.); ITAR export rules apply regardless of medium. |
Key Cases Cited
- Stagg P.C. v. U.S. Dep't of State, 158 F. Supp. 3d 203 (S.D.N.Y. 2016) (district court decision on preliminary injunction and standing)
- Stagg P.C. v. U.S. Dep't of State, [citation="673 F. App'x 93"] (2d Cir. 2016) (Second Circuit summary order affirming standing and denial of preliminary relief)
- City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (content-based licensing may be challenged facially where officials have unbridled discretion)
- Riley v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781 (1988) (content-based speech restrictions trigger strict scrutiny)
- Freedman v. Maryland, 380 U.S. 51 (procedural safeguards required for constitutional prior restraints)
- United States v. O'Brien, 391 U.S. 367 (1968) (intermediate scrutiny for content-neutral regulations that incidentally burden speech)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (content-neutrality and intermediate scrutiny standards)
- United States v. Mak, 683 F.3d 1126 (9th Cir. 2012) (upholding AECA/ITAR as content-neutral and valid under O'Brien)
- Defense Distributed v. U.S. Dep't of State, 121 F. Supp. 3d 680 (W.D. Tex. 2015) (consideration of Internet posting as export; preliminary injunction context)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (vagueness/due process principles and as-applied analysis)
- United States v. Williams, 553 U.S. 285 (2008) (void-for-vagueness framework)