[Ground-station] Open Research Institute ITAR/EAR policy work - 2019 update

[Michelle Thompson]

Open Research Institute has a significant update to our ongoing amateur
radio satellite communications policy work. This letter describes the work
and includes a request for assistance.

The International Traffic in Arms Regulations (ITAR) and the Export
Administration Regulations (EAR) are two United States export control laws
that affect the manufacturing, sales and distribution of technology.

Open Research Institute (ORI) operates using the public domain carve-outs
in ITAR and EAR.

Our current policy is documented on our website. Here's the direct links:
https://openresearch.institute/itar-and-ear-strategy/ and
https://openresearch.institute/developer-and-participant-policies/

We believe these policies are sufficient.

However,

1) Some potential funding sources want to see a formal legal opinion.

2) Some organizations have made allegations that everything we do is
illegal (and unethical, fattening, stupid, etc.).

Our choices were to continue insisting we are right, or to be effective.

I chose to be effective.

Therefore, in July 2019 Bruce Perens went out and found several law firms
that were aligned with our goals and values. We selected one recommended by
the Electronic Frontier Foundation and began work.

After the first round of conversation in August 2019, we had decided to 1)
pay for a formal legal opinion and 2) apply for EAR certification with the
US Department of Commerce. This would certify that the open source work we
were doing was A-ok with the US government.

There was a delay in beginning this work. I stepped up to lead the effort
and initiated another round of conversation with the law firm.

This second round of conversation refined the goal.

My highest priority is ensuring risk reduction to our amazing volunteers.
The open source and public domain carve outs deliver enormous risk
reduction and offer wonderful international opportunities for meaningful
collaboration. But, just like with proprietary ITAR/EAR work, you have to
know what you're doing in order to unlock all the benefits.

A formal legal opinion was still desired and will be obtained. That has not
changed. But, instead of going for EAR Certification, which we considered
to be an easier application process, we decided we would go for the top
tier, and apply for ITAR Commodity Jurisdiction from the US Department of
State.

If successful, then this finding solves EAR certification and also better
defines a relationship with the Department of Defense, which is the third
major entity involved in regulating the amateur radio satellite work we are
doing. A Commodity Jurisdiction is widely considered to be the gold
standard for work related to ITAR.

ORI is asking that our programs of work be found explicitly *not* subject
to ITAR.

This application is appropriately lengthy and complex. This effort is not
without risk. Instead of just continuing to happily do what we've been
doing, which we believe to be entirely legal and above-board, we are
instead deliberately attracting attention, scrutiny, and judgement.

Why do this? Because others have not. The trinity of fear-uncertainty-doubt
must be confronted and defeated. Open source is the way forward for amateur
radio satellite work.

The cover letter from the law firm has been delivered to us. This cover
letter contains the draft of the source material for the application. We
also have a copy of ITAR Category XV (Spacecraft and Related Articles),
DDTC CJ Determinations list (to study the list of successful applications)
and a copy of the Commerce Control List.

We will review and if necessary revise the cover letter, until it
accurately and completely represents our work. Then we will prepare our
application and then we will file it.

Let's talk about expenses. In August, we estimated the effort would cost
$50,000. Current estimates, to get us up to the point of being able to
apply, are much less than that at $5,000. I can pay for this.

ORI currently has $13,041 in the bank. These funds are intended for
hardware development and boards, and not for legal. If the expenses end up
exceeding my ability to pay, then I will ask for help. ORI hardware funds
will not be diverted to cover legal costs.

What do we need?

There is a section in the application where supporting organizations can
contribute supportive comments.

I ask all AMSAT organizations to seriously consider providing a statement
of strong support for Open Research Institute's Commodity Jurisdiction
request. Describing the work that would be enabled by safe, sane, and legal
legal open source collaboration would be of great benefit to this
application.

I humbly ask ARRL, ARISS, Libre Space Foundation, and any other group that
has an interest in this work to consider formally supporting this effort
with a statement that can be included with the request.

Our law firm can provide some guidance on statements if necessary. We
deeply appreciate any assistance provided.

Thank you all for the support, encouragement, comment, critique, questions,
and motivation.

-Michelle Thompson W5NYV
w5nyv at arrl.net
858 229 3399
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