Starlink - Feb 2023 - Export Controlled?
SpaceX supposedly blocked Ukraine from using Starlink because they didn't want the civilian system to be reclassified as a military system. This would have made the system subject to export restrictions under ITAR, which restricts the export of any military hardware. Starlink is a satellite internet service that some argued may fall under the International Traffic in Arms Regulations (ITAR) if it were modified for military use. ITAR is the US regulatory system that restricts the export of defense and military-related technology. Starlink terminals had been mounted on drones to provide guidance. This seemed to some to make Starlink an active weapons guidance system, which would fall under ITAR restrictions.
In February 2023, Gwynne Shotwell, president of SpaceX, said Starlink was “never intended to be weaponized” and that the company moved to initiate steps to limit Ukraine’s use of the satellite internet network for military purposes. Speaking at the Federal Aviation Administration Commercial Space Transportation Conference 08 February 2023, Shotwell described Ukraine’s use of the Starlink broadband satellite communication system for weapons systems like drones as an “unintentional” effect of donating services and terminals to the country after Russia’s invasion nearly a year ago. “We were really pleased to be able to provide Ukraine connectivity and help them in their fight for freedom,” she said. “It was never intended to be weaponized, but the Ukrainians have leveraged it in ways that were unintentional and not part of any agreement.”
The International Traffic in Arms Regulations (ITAR) are a set of United States regulations that control the manufacture, sale, and distribution of defense and space-related articles and services. The regulations are administered by the U.S. State Department, Directorate of Defense and Trade Controls. The goal of ITAR is to protect defense-related sensitive items, patents, and data to help safeguard the national security of the US. The items subject to the jurisdiction of the ITAR, i.e., “defense articles” and “defense services,” are identified on the ITAR's U.S. Munitions List (USML).
The United States Munitions List (USML) covers certain antennas with specific capabilities. The USML also covers satellites and spacecraft with unique military and intelligence functions, such as nuclear detection, missile tracking, and classified operations. The USML is found in Part 121 of Title 22 of the Code of Federal Regulations. The Directorate of Defense Trade Controls administers the regulations. Items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR 730-774, which includes the Commerce Control List (CCL), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. By definition, technology or software that is publicly available is not subject to the EAR.
The Departments of Defense and State conducted a review as part of the President Obama's Export Control Reform (ECR) Initiative. They identified certain satellites and related items that are not critical to national security, do not contain technologies unique to the United States, and are more appropriately subject to the EAR, which allows for the creation of license exceptions for exports to certain destinations and complete controls for exports to others. This report was provided to the Congress in April 2012.
US commercial communications satellites are no longer considered defense articles subject to the International Traffic in Arms Regulations (ITAR). 10 November 2014 is the effective date for most of the sweeping satellite export rule changes. On May 13, 2014, the Departments of State and Commerce released a set of interim final rules that move many commercial satellites and related items from the U.S. Munitions List to the Commerce Control List. This long awaited rule change ends 15 years of burdensome restrictions on U.S. satellite exports. Spacecraft that have commercial end-use with capabilities above specified thresholds will still be controlled on the USML.
To the greatest extent possible, the Department is revising the USML using the principle of control based on article capability, and not article end-use, believing the former to be the better standard for protecting the technologies of importance to national security. The Department revised the text in paragraph (e)(1) to clarify that antennas on spacecraft are controlled therein, and not ground-based antennas.
ITAR § 120.9 does not capture the case where a foreign person located outside the United States furnishes assistance to another foreign person for the integration of a foreign item into another foreign item. By definition, defense services are only provided by U.S. person to a foreign person. The provision would allow a foreign person to integrate a foreign origin article without providing a “defense service,” because these parts are not under US jurisdiction. The Department removed ITAR § 124.2(a) — the provision of training in the basic operation of a defense article — will not be controlled as a defense service.
On 20 September 2022 the U.S. Treasury Department said some satellite internet equipment can be exported to Iran, suggesting that SpaceX CEO Elon Musk may not need a license to provide the firm's Starlink satellite broadband service in the country. Musk said on Monday the company will ask for an exemption from sanctions against Iran. "Starlink will ask for an exemption to Iranian sanctions in this regard," Musk wrote. The Treasury Department's Office of Foreign Assets Control (OFAC) has a longstanding license that "authorizes certain exports to Iran of hardware, software, and services related to communications over the internet, including certain consumer-grade Internet connectivity services and residential consumer satellite terminals authorized under General License D-1," a department spokesperson said.
Even a simple online four slide brochure of Starlink carried the ominous caveat "U.S. EXPORT CONTROLLED. This document contains technical data covered by the U.S. Munitions List (USML). Pursuant to the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120-130, the approval of the Directorate of Defense Trade Controls, U.S. Department of State, must be obtained prior to: (i) sending or taking these data out of the United States in any manner, except by mere travel outside of the United States by a persons whose personal knowledge includes these data; (ii) disclosing (including oral or visual disclosure) or transferring in the United States these data to an embassy, any agency or subdivision of a foreign government; or (iii) disclosing (including oral or visual disclosure) or transferring these data to a foreign person, whether in the United States or abroad".
The Starlink Terms of Service Agreement warns "8.5 Modifications to Starlink Products & Export Controls. Starlink Kits and Services are commercial communication products. Off-the-shelf, Starlink can provide communication capabilities to a variety of end-users, such as consumers, schools, businesses and other commercial entities, hospitals, humanitarian organizations, non-governmental and governmental organizations in support of critical infrastructure and other services, including during times of crisis. However, Starlink is not designed or intended for use with or in offensive or defensive weaponry or other comparable end-uses. Custom modifications of the Starlink Kits or Services for military end-uses or military end-users may transform the items into products controlled under U.S. export control laws, specifically the International Traffic in Arms Regulations (ITAR) (22 C.F.R. §§ 120-130) or the Export Administration Regulations (EAR) (15 C.F.R. §§ 730-774) requiring authorizations from the United States government for the export, support, or use outside the United States. Starlink aftersales support to customers is limited exclusively to standard commercial service support. At its sole discretion, Starlink may refuse to provide technical support to any modified Starlink products and is grounds for termination of this Agreement."
The US Justice Department filed a lawsuit August 24, 2023 against Space Exploration Technologies Corporation (SpaceX) for discriminating against asylees and refugees in hiring. The lawsuit alleges that, from at least September 2018 to May 2022, SpaceX routinely discouraged asylees and refugees from applying and refused to hire or consider them, because of their citizenship status, in violation of the Immigration and Nationality Act (INA).
In job postings and public statements over several years, SpaceX wrongly claimed that under federal regulations known as “export control laws,” SpaceX could hire only U.S. citizens and lawful permanent residents, sometimes referred to as “green card holders.” Export control laws impose no such hiring restrictions. Moreover, asylees’ and refugees’ permission to live and work in the United States does not expire, and they stand on equal footing with U.S. citizens and lawful permanent residents under export control laws. Under these laws, companies like SpaceX can hire asylees and refugees for the same positions they would hire U.S. citizens and lawful permanent residents. And once hired, asylees and refugees can access export-controlled information and materials without additional government approval, just like U.S. citizens and lawful permanent residents.
Because SpaceX works with certain goods, software, technology and technical data (referred to here as export-controlled items), SpaceX must comply with export control laws and regulations, including the International Traffic in Arms Regulations and the Export Administration Regulations. Under these regulations, asylees, refugees, lawful permanent residents, U.S. citizens and U.S. nationals working at U.S. companies can access export-controlled items without authorization from the U.S. government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than U.S. citizens or green card holders.
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