Happy 90th Birthday, ITAR!

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 it 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 was a result of the Neutrality Act of 1935, which was signed into law on August 31, 1935, and President Roosevelt’s Proclamation on Arms (September 25, 1935), which was the first version of what would eventually become the United States Munitions List (USML). Although that first proclamation of the “articles which shall be considered arms, ammunition, and implements of war” for purposes of the Neutrality Act contained only six simple categories (read the original ITAR), 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 businesses to protect and equip our troops and provide them with a critical military and intelligence advantage over would-be adversaries. In turn, the government, through ITAR requirements, 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 extends not only to 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 where 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 accessing that kind of sensitive data.

Although the ITAR is now a nonagenarian, its evolution 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 lawyers have vast experience helping companies, from emerging startups to established standouts, navigate the ITAR and expand or improve their regulatory compliance procedures.

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee similar outcomes.