In 1936 sociologist Robert K. Merton wrote a paper in the American Sociological Review titled “The Unanticipated Consequences of Purposive Social Action.” In his analysis he discussed a number of possible reasons that undesirable outcomes often result from well-meaning actions. Today we often refer to unintended – rather than unanticipated – consequences of some otherwise well-meaning rule or law. In many ways the International Traffic in Arms Regulations (ITAR) have had unintended consequences in the commercial, civilian and military space programs of the
United States

As is widely known and understood, the U.S. Department of State is responsible for implementing the U.S. Arms Export Control Act, which it does through ITAR. The U.S. Department of Commerce issues licenses for so-called “dual-use” technologies. It is the interpretation of the current ITAR that essentially all spacecraft hardware elements and most flight software are munitions and hence are subject to ITAR restrictions. However, a wide sweep of organizations involved in civil and commercial space programs has argued that the current ITAR (and interpretation of the regulations) do not properly distinguish between widely available commercial technologies and truly sensitive, militarily significant space hardware.

From the point of view of a space scientist, it seems clear that the current implementation of ITAR has produced a plethora of negative effects in the
space program. Among these are: Increases in complexity and administrative costs for space projects; significant decreases in business opportunities, especially for small space industry providers; large increases in restrictions on interactions with foreign colleagues and possible collaborators; and reduced ability to utilize foreign calibration and test facilities. All of these effects have tended to reduce innovation in the
space program as the focus has increasingly been on secrecy and protection.

In recent months, the current presidential administration has moved to try to address some of the perceived problems and issues with ITAR. However, it appears the administration’s actions, while an important step, have only been to try to increase the speed and efficiency of ITAR licensing procedures rather than addressing the perceived fundamental flaws in the current ITAR and implementing policies.

In February a report was released by the Center for Strategic and International Studies (CSIS) titled “Health of the U.S. Space Industrial Base and the Impact of Export Controls.” This study, led by A. Thomas Young, retired former executive vice president of Lockheed Martin, William Ballhaus, retired president and chief executive officer of the Aerospace Corp., and Pierre Chao, senior associate with the Defense Industrial Initiatives Group in the CSIS International Security Program, notes that commercial satellites were placed in their entirety on the U.S. Munitions List by Congress in the 1999 Defense Authorization Act. Since that time, the costs of legal services, administration of regulations, compliance training, consulting services and other expenses associated with ITAR have increased dramatically – presently totaling many tens of millions of dollars per year. The bottom line conclusion of the CSIS study was that many hundreds of millions of dollars of sales have been lost by aerospace companies each year due to ITAR since the beginning of the decade.

In the past, policymakers have recognized that ITAR has increased the complexity of doing business in space and also probably has cost the loss of some international business. However, it has been widely asserted and contended that such costs and losses are a small price to pay for the prevention of proliferation of sensitive arms technologies.

A remarkable conclusion of the CSIS study, however, was that ITAR and broad-brush inclusion of all space technology actually has made the
United States
less secure. For example, because of ITAR restrictions, foreign countries and non-U.S industries have developed much more advanced, and thus more worrisome, technologies for their space systems than they could or would have purchased from U.S. suppliers had ITAR not prevented such sales. The CSIS study urges a careful scrubbing of the U.S. Munitions List and recommends inclusion of only those technology items that are truly sensitive and significant to national security.

An important
fallout of ITAR beyond commercial losses has been the chilling and inhibiting effect that the implementation of ITAR has had on basic space research. Such research – often done at leading
universities – normally involves detector instrumentation that ultimately is intended to fly on civilian spacecraft. A consequence of the current ITAR, and their strict interpretation and implementation, is to make university-built space hardware and flight software subject to the full force of ITAR export control restrictions and to limit foreign science participation.

In the pre-1999 law, university researchers operated under the assumption that university space research was specifically excluded from ITAR control under the “academic exclusion” clause. Since 1999 this practice has been dramatically altered to the great detriment of basic space research in the
United States
and the world.

With the election of a new
administration – of whichever party – that will take power in 2009, it is an appropriate and important time to reassess and re-evaluate ITAR. As urged by the CSIS report, the U.S. Munitions List should certainly be scrubbed and licensing procedures should be greatly streamlined.

However, even deeper and more fundamental actions should be taken. A blue-ribbon commission working closely with the departments of Defense, State and Commerce should put together a large, inclusive panel of experts to review all aspects of the present ITAR. The Office of Science and Technology Policy (OSTP) should fund the work of this review effort and committee, whose goal should be to go through the present regulations literally line by line. This panel, made up of knowledgeable people from the DoD, the commercial sector, other government agencies, such as the National Reconnaissance Office, and academia, should determine what is good about the current ITAR and what is no longer beneficial or proper.

The outcome of such a proposed study would be a succinct, itemized list of elements that would constitute good, effective, beneficent regulations. Such a body of elements should then be provided to Congress and its legal staff early in 2009 to draft new, wholly revamped legislation. By working together, the new Congress, the new executive branch team, and the acutely interested space community could make rapid, efficient and effective changes to a damaging set of regulations that is not accomplishing many of its originally intended purposes.

Daniel Baker is the director of the Laboratory for Atmospheric and Space Physics at the University of Colorado,