Broadcast 414 (Special Edition)

15 Nov 2005 Kerry T. Scarlott
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Kerry Scarlott was the guest for this program which focused on a detailed discussion of ITAR and EAR. ITAR is the International Traffic in Arms Regulations and EAR is the Export Administration Regulations. Mr. Scarlott started the discussion with an ITAR primer, making sure we understood the reason for ITAR, its evolutionary history, how it is applied, what is subject to ITAR, and the challenges in following the ITAR regulatory requirements. As Mr. Scarlott explained, much of the problems stem from determining what is in the public domain and we spent some time discussing the public domain, what it is as applied to ITAR, and how to comply with ITAR requirements. For example, were a person at a conference to simply read from or use material in a book, most likely that would be public domain. However, if the presentation contained data and information from multiple books and public sources, the act of combining it all together in one presentation might very well fall into regulated and restricted areas. In response to a listener question, Mr. Scarlott confirmed that the academic issues with ITAR are serious and problematic and said the State Department definitely needs to make some improvements in the regime in this area. Mr. Scarlott was asked about how this regulatory regime fit in with the First Amendment plus many more issues. He also talked about the Deemed Export Rule and what it actually covers, be it face-to-face communications, telephone conversations, e-mail, fax traffic, visual inspections, tours, computer file sharing, even discussing things out in the open on a radio or television show. Mr. Scarlott referenced an important article that you might want to read, "Space-Based Fundamental Research and the ITAR:A Study in Vagueness, Overbreadth, and Prior Restraint" by Rachel Claus, senior counsel at Stanford University and available at http://www.scu.edu/scjil/archive/v2_ClausArticle.shtml . We thank Berin Szoka, Executive Director of Institute for Space Law & Policy at www.islap.org for sending us the article and its URL. The Institute is preparing legal challenges to ITAR and in fact we discussed legally challenging ITAR with Mr. Scarlott, including shopping for the best forum, court, and judge. At the end of the interview, Mr. Scarlott talked about the Dec. 8, 2005 ITAR conference his firm is helping to sponsor. You can hear the details at the end of the program or you can contact Mr. Scarlott. Kerry Scarlott can be contacted with follow up questions, comments, or information at kscarlott@pbl.com. His telephone number is 617 722-4912.

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