[caf]

It doesn’t matter if I independently invent nuclear weapons, I’m still not currently allowed to open source them for other people, possibly in other countries, to use.

It's funny you mentioned nuclear weapons. Nuclear design information is purportedly "born secret" in the United States (that is, purportedly restricted based on what it is, not where it came from).

However, the one time that this looked like going to trial, when a magazine called The Progressive intended to publish Howard Morland's article describing the operation of thermonuclear weapons in the 1970s and the DoE tried to stop them (United States v. Progressive, Inc.), the Government ended up backing down before a final resolution of the case. The article was published, but whether or not this prior restraint is legal is still undecided.

It is also worth noting that the argument for suppression leaned on the severe consequences up to thermonuclear war, something which the argument for suppressing passive radar technology is going to have a harder time with.

[dahart]

> the argument for suppression leaned on the severe consequences up to thermonuclear war, something which the argument for suppressing passive radar technology is going to have a harder time with.

Why would you assume radar needs the same justification as nuclear weapons, when there are lots of export controlled products and ideas already that aren’t justified by the specific or immediate threat of thermonuclear war, e.g., encryption, weapons, chemicals, software, etc.? That’s what ITAR is…

The Morland/Progressive story is quite fascinating. It’s worth pointing out that it happened more than 30 years after the original designs, after other countries had their own nukes, and the case was dropped due to all of the info Morland shared already being in the public domain. It’s not really an example of free speech winning against the government, and isn’t precedent for how we’re handling defense related technology today.

[caf]

Why would you assume radar needs the same justification as nuclear weapons, when there are lots of export controlled products and ideas already that aren’t justified by the specific or immediate threat of thermonuclear war, e.g., encryption, weapons, chemicals, software, etc.? That’s what ITAR is…

The first amendment arguments in the case (and related cases like the Pentagon Papers) in part hinged on the immediacy and degree of harm to the United States that publication was likely to cause. "Thermonuclear war" is an easier sell in this balancing of concerns than "better radar".

It’s worth pointing out that it happened more than 30 years after the original designs, after other countries had their own nukes, and the case was dropped due to all of the info Morland shared already being in the public domain.

Not exactly. The Teller-Ulam design was about 26 years old at that point - it was first tested at Ivy Mike in 1952. The Soviets and British developed similar staged thermonuclear weapons over later part of the decade, the Chinese and French not until the late 1960s.

Morland and The Progressive argued from the start that the article was based on information in the public domain, when the DoE first came to them. The government on the contrary argued that the article contained still-secret information. The government then did say they were dropping the case because it was mooted by events, but dropping it did also avoid the risk of an adverse ruling - as I said, the legality of these kinds of prior restraints on publishing independently-derived material remains unclear.

[dahart]

> “Thermonuclear war” is an easier sell in this balancing of concerns than “better radar”.

Why? That doesn’t explain the entire rest of everything that is currently export controlled, right? Threat of Thermonuclear war is not the basis for the ITAR program.

[caf]

Why? Because it's a more grave and imminent threat, and the jurisprudence around first amendment vs prior restraint against publishing of classified material is around balancing of concerns, with prior restraint justified in cases of "direct, immediate or irreparable harm to our Nation or its people". It's not a black and white line, the degree of harm matters.

"Everything else that is currently export controlled" has not been litigated (but note that we are only concerned here with limits on the export of expressive text, not for example actual armaments). The one case where restrictions on the export of software by ITAR was litigated - Bernstein v. United States Department of States (District Court of California) (1997) - the District Court ruled the regulations in question were an unconstitutional prior restraint on speech and issued a declaratory judgement preventing the government from enforcing the ITAR in question against DJB or anyone else seeking to use, discuss or publish his encryption code.

[dahart]

> has not been litigated

Oh I see what you mean now, thanks for the explanation. Yes I agree that when challenging in court whether some tech can be classified or not, then nukes are an easier sell than radar. I was more referring to what happens before that, how something becomes classified and/or export controlled by the government. It doesn’t have to be litigated in order to legally limit feee speech, while it does have to be challenged, litigated, and won in order to become free speech.