Honorable Clement J. Zablocki, Chairman, Committee on Foreign Affairs United States House of Representatives Washington, D.C. 20515 Dear Mr. Chairman: Pursuant to your request, we have reviewed H.R. 40, a bill "[t]o amend the Arms Export Control Act (formerly Foreign Military Sales Act) to authorize the President to prescribe regulations for protecting arms information from the risk of indiscriminate export." The Department of Justice opposes enactment of H.R. 40. The broad authority provided in the bill for imposition of prior restraints on the dissemination of technical information raises substantial First Amendment concerns. While these concerns could possibly be alleviated if the implementing regulations were narrowly drafted to avoid unconstitutional applications, we believe the bill would create burdensome and unnecessary difficulties in implementation that would far outweigh the possibly beneficial effect of providing explicit statutory authority in this area. H.R. 40 would amend the Arms Export Control Act, 22 U.S.C. s. 2778, to authorize the Secretary of Defense, after consultation with the Secretaries of State and Energy, to prescribe regulations to prohibit the disclosure of "information pertaining to items listed in the United States Munitions list" in order "to preclude the possibility of unauthorized export." The bill would prohibit the publishing or disclosure of such information "unless the Secretary of Defense, in consultation with the [Secretaries] of State and . . . Energy, determines that withholding thereto is contrary to the national interest." The bill would specifically authorize the Secretary of Defense to establish by regulation a system of prior restraints governing the publication or other disclosure of information relating to items on the Munitions list. In view of the Supreme Court's well established attitude-towards prior restraints, [n.1] we believe that in general any legislation authorizing such restraints should be drafted as narrowly as possible to achieve the desired purpose within constitutional constraints. In that regard, this Department has previously reviewed constitutional questions raised by the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 6 121 et seq., which currently impose some licensing requirements on exports of technical information relating to the manufacture or use of items on the Munitions list. Since it appears that the primary effect of H.R. 40 would be to provide explicit statutory authorization for imposition of such controls, [n.2] our analysis of the constitutional issues raised by the ITAR is particularly pertinent to our consideration of H.R. 40. ========= [n.1] See, e.g., New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity'") (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 557-60 (1976) (prior restraint is "the most serious and least tolerable infringement on First Amendment rights"). [n.2] The ITAR have been promulgated pursuant to ¤ 38 of the Arms Control Act of 1976, 22 U.S.C. s. 2778, which authorizes the President "to control the import and export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services" and to "designate those items which shall be considered as defense articles and defense services . . . and to promulgate regulations for the import and export of such articles and services." s. 2778(b). We believe the language of the Act is broad enough to allow regulation of the export of information or technical data, at least in a commercial context. There is some room for debate on that point, however, because the statute does not expressly include "information" as a "defense article," and the legislative history is not entirely clear with respect to the treatment of technical information. We assume therefore that one purpose of H.R. 40 would be to provide explicit legislative authority for the regulation of exports of technical information relating to items on the Munitions list. ========= The permissible constitutional scope of licensing or other prior restraint systems imposed on the export of technical information, such as those imposed by the ITAR or that would be authorized by H.R. 40, is extremely narrow. We believe such restraints may withstand a First Amendment challenge in two limited categories of transactions: (1) transactions involving arrangements entered into by exporters to assist foreign enterprises in their acquisition or use of technology; [n.3] and (2) transactions involving the dissemination of technical data for the purpose of promoting or proposing the sale of technical data or items on the Munitions list. [n.4] Broader ========== [n.3] The most common example of such a transaction would be a commercial agreement by an American firm to provide technical information or advice to a foreign firm engaged in the manufacture of an item or items on the munitions list. We believe that in such circumstances the courts would view the exchange of information as an integral part of a larger transaction involving conduct that the Government is otherwise empowered to prohibit or regulate. See generally Ohralik v. Ohio, 436 U.S. 447, 456 (1978), and cases cited therein. The Ninth Circuit has held, in the leading case involving the constitutionality of the ITAR, that the ITAR could be applied constitutionally to an exporter who had agreed to assist a foreign firm in the development of a new technology, having reason to know that the foreign firm intended to use the technology to manufacture items on the Munitions list. United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978). [n.4] We believe the export of promotional information would be considered by the courts to be "commercial speech," which the Supreme Court has suggested may in some circumstances be entitled to a "lower level" of protection than that accorded to other forms of protected speech. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 506-07 (1981); Central Hudson Gas v. Public Service Comm'n, 447 U.S. 532, 564 n.6 (1980); Freedman v. Rogers, 440 U.S. 1, 13, 15- 16 (1979) Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 388 (1973); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772 n.24 (1976). Without determining whether the prior restraint doctrine is inapplicable to all commercial speech in all circumstances, we believe a licensing requirement for promotional speech that contains technical data would probably be held constitutional, given the Government's substantial interest in suppressing the technical data and the qualified nature of the First Amendment protection that is accorded to promotional materials. ========= applications of a licensing requirement or other prior restraint -- e.g., to restrict the dissemination of technical data by persons who are not directly connected or involved in any way with any foreign conduct that may have dangerous potential for the United States -- raise serious constitutional problems. Such speech is arguably protected by the First Amendment, and any prior restraint would therefore be presumptively unconstitutional. See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, supra. [n.5] We believe that a licensing requirement or other prior restraint system would probably be subject to successful constitutional challenge if it were applied to the dissemination of technical data by persons having no direct connection with foreign conduct in settings in which there is no more than a reasonable basis for believing (1) that a foreign national may take the technical data abroad and (2) that the data could be used by someone there in the manufacture or use of items on the Munitions list. The language of H.R. 40 is extremely broad, and provides only limited and general guidance for the imposition of a prior restraint against the release of particular information or types of information. The authority granted by the bill could cover a range of prior restraints, many of which might well be unconstitutional. We are particularly concerned that the language of the bill is broad enough to authorize prior restraints on the domestic dissemination of privately-generated information. Thus, on its face, the bill could have both constitutional and unconstitutional applications. If the bill were enacted, we believe it likely that it would be challenged in the courts as overly broad. See, e.g., Gooding v. Wilson, 405 U.S. 518 (1972), Keyishian v. Board of Regents, 385 U.S. 589 (1967). The success of such a challenge would depend on whether the implementing regulations adequately confine the exercise of authority to prior restraints that fall within constitutional limits, or whether a court were willing to construe ========== [n.5] Prior restraints against publication or disclosure in those circumstances would be justified only by extraordinary circumstances, e.g., a grave and immediate threat to national security posed by communication of important military information to an adversary for current use against the United States. See New York Times Co. v. United States, 402 U.S. 713 (1971) (per curiam). ========= that authority narrowly to avoid unconstitutional applications. [n.6] In the Edler case, for example, the Ninth Circuit construed the ITAR narrowly precisely to avoid invalidation of the entire regulatory scheme on constitutional grounds. See United States v. Edler Industries, Inc., supra, 579 F.2d at 520. Therefore we cannot conclude that H.R. would be constitutionally indefensible if it were enacted. At a minimum, however, the broad language and potential scope of H.R. 40 would engender considerable difficulties and debate in implementation and could well lead to unnecessary, burdensome, and nonproductive litigation over its effect and scope. While the Department of Justice would not necessarily oppose narrowly drawn legislation granting specific authority for imposition of some export controls in particular, constitutionally acceptable circumstances, [n.7] we cannot support H.R. 40 on its current form. Finally, we note a practical problem with H.R. 40. At present, ITAR is administered by the State Department. H.R. 40 would alter this system by placing the regulatory authority in the Defense Department. we suggest that this change would cause more disruption to the regulatory process than it would be worth. ========= [n.6] This construction would include not only a narrowing of circumstances in which a prior restraint could be imposed, but also provision of procedural protections that would be required if a prior restraint were to be imposed on speech that is subject to the full panoply of First Amendment protection. If it were enacted, H.R. 40 would have to be construed consistently with the result reached by the Supreme Court in New York Times Co. v. United States, supra, at least insofar as it would authorize prior restraints of fully protected speech. This would include, for example, placing the burden on the Government of showing that the prior restraint would be justified on a particular set of facts, providing for judicial review of the restraint, and providing for prompt action by the administrator on any matter subject to the prior restraint-scheme. See Freedman v. Maryland, supra, 380 U.S. at 58-59. [n.7] To the extent there is some doubt about the scope of the President's authority to implement restrictions governing exports of technical information, see n.2 supra, such legislation could provide useful clarification. ========= For the foregoing reasons, the Department of Justice opposes enactment of H.R. 40. Sincerely, Robert A. McConnell Assistant Attorney General