Are Books and Brains Weapons? The U.S. Government Thinks So.

Oleg Tishchenko logged onto the Digital Combat Simulator fan forum in 2011 and posted an innocuous request: “Help needed with eBay item shipping.” Tishchenko was the lead avionics programmer for Eagle Dynamics, which produces the simulation game, and he had found an old F-16 fighter jet flight manual for sale. But the seller wasn’t shipping outside of the United States, so Tishchenko needed someone to pick up the book and mail it to Russia.

It made sense. Tishchenko’s job at Eagle Dynamics was “to make a picture that looks like what you’d see in real life,” he told the Russian opposition magazine Meduza. “If a certain device displays velocity in real life, it should display velocity in our games too.” He had ordered dozens of flight manuals before without any problem, but a few forum users warned Tishchenko the book might be covered by U.S. weapons laws.

“I thought they were being overly cautious, that it was some kind of super law-abiding American thing,” he later told Meduza. “I knew it wasn’t just eBay where these things were being sold. There are websites selling the same exact manuals that just keep on going without a problem.”

The post, however, had caught some unwanted attention. Tishchenko’s eBay account was banned. An undercover agent approached him online, asking Tishchenko to meet outside Russia to buy more fighter jet manuals. When Tishchenko applied for a visa to visit Germany, an official at the German consulate told him he couldn’t enter Europe due to a weapons-smuggling investigation.

In summer 2018, when Tishchenko was at a concert in the Republic of Georgia, a group of Georgian police burst in and pulled him away from the woman he was dancing with. He was arrested and handed to a pair of U.S. Marshals at the airport in Tbilisi. Tishchenko pleaded guilty to Arms Export Control Act violations and was sentenced to time served. The U.S. government, which had gone through all the trouble of taking Tishchenko in, flew him back to Russia a few months later.

Sharing weapon manuals illegally has become something of a running joke among video game fans ever since. Players of War Thunder, a Hungarian competitor to Digital Combat Simulator, have taken to posting military documents on the fan forum every few months. No doubt wary of facing the same fate as Tishchenko, War Thunder founder Anton Yudintsev went to The Washington Post in 2022 to beg fans to knock it off.

For the most part, user manuals shouldn’t be seen as legally sensitive. They’re not blueprints for manufacturing weapons; they are merely guides for using them, meant for ordinary troops to read. Neither the book that Tishchenko bought nor most of the PDFs being posted to the War Thunder forum are classified; any American can own one of these manuals, legally.

Despite all that, weapons manuals are considered “munitions” under the International Traffic in Arms Regulations (ITAR) set by the U.S. State Department. Thus, “exporting” one or even showing it to a foreigner is legally equivalent to exporting a bomb. And the federal government’s overly capacious vision of information as ammunition goes far beyond fighter jet manuals.

Weaponized Algorithms

Until the late 1990s, encryption algorithms were also on the U.S. Munitions List, making it illegal for foreigners to download certain American-made web browsers.

Beyond ITAR, the U.S. Commerce Department’s Export Administration Regulations (EAR) strictly control “dual-use” technologies that could be used in war or weapons manufacturing. Space satellites, carbon fiber materials, underwater rebreathers, high-end night-vision goggles, lasers, supercomputers, and even certain types of medical equipment are all covered by these regulations. In some cases, people who clearly had no intent of doing anything of a military nature with certain objects have been treated by the U.S. government as potential weapons smugglers.

Earlier this year, the U.S. government announced it would tighten its enforcement of these rules even further. “There are going to have to be some penalties that get everyone’s attention,” Matthew Axelrod, assistant secretary for export control at the Department of Commerce, told a group of law students in January 2024, according to Reuters. “I think we’re on the cusp of that.” He cited a $300 million fine against California electronics company Seagate Technology for selling hard drives to Chinese telecom giant Huawei.

Arms export laws might seem in theory a sensible use of government power. The weapons industry is not really a free market, since all the customers are other governments or governmentlike forces. And private companies in the U.S. probably shouldn’t be arming potential foreign aggressors, let alone wartime enemies.

The U.S. arms control system, however, has grown into something quite different from a ban on gunrunning. Since the Cold War, these export control laws have been used as a tool for slowing down the development of peacetime competitors. For example, the Department of Commerce has been tightening the rules on exporting semiconductors to China for any purpose, claiming that artificial intelligence could be used by the Chinese military.

These restrictions have done a lot of collateral damage, bringing down the full force of the national security state on everyone from scuba suppliers to cancer researchers. They’ve blocked scientists from sharing lifesaving data with foreign colleagues.

For most of U.S. history, the government was concerned with taxing and regulating imports coming into the country, not exports leaving U.S. soil. But the age of industrial warfare brought new concerns that exports could be dangerous, either by empowering enemies or by dragging the United States into conflicts the country wanted no part in. Congress passed the Trading with the Enemy Act in 1917 (which gave the president new powers to impose economic sanctions) and the Neutrality Acts in the 1930s (a series of laws banning weapons exports to countries engaged in a war, even conflicts the U.S. was not a party to).

The export control system was overhauled several times after World War II. The United States founded the Coordinating Committee for Multilateral Export Controls, or CoCom, a coalition of capitalist nations that agreed to keep strategic technologies out of Communist hands. CoCom was abolished after the Soviet Union collapsed, but our own domestic export controls—ITAR and EAR—stayed.

Cryptography was the first time the public policy problems with these export controls made big news. Before the advent of personal computers and electronic banking, encrypted communications were almost always a military technology. Then, in 1976, a scientist drank too much at a Passover ceremony. In a fit of wine-drunk genius, Ron Rivest devised the Rivest–Shamir–Adleman (RSA) algorithm, which would allow two people to share encrypted messages without exchanging a secret key beforehand, a feat mathematicians had thought impossible.

For the first time in history, complete strangers could encrypt their communications without special equipment or a codebook. In 1991, another scientist named Phil Zimmermann used RSA to create Pretty Good Privacy, the first encrypted email software for consumers, and allowed a friend to post the software for free online.

“If privacy is outlawed, only outlaws will have privacy. Intelligence agencies have access to good cryptographic technology. So do the big arms and drug traffickers. So do defense contractors, oil companies, and other corporate giants,” Zimmermann wrote in a 1995 essay. “But ordinary people and grassroots political organizations mostly have not had access to affordable military grade public-key cryptographic technology. Until now.”

Zimmermann received volumes of mail from people around the world thanking him for keeping their communications safe from governments. His software was being used by everyone from human rights defenders in the former Soviet Union to rebels in Burma, according to The Code Book, a 1999 history of cryptography by Simon Singh. The U.S. government, though, was not a fan of Zimmermann’s privacy-protecting product.

The Department of Justice opened a grand jury investigation into Zimmermann, alleging that he was, in essence, smuggling a weapon through the internet. After a massive outcry from both the software industry and First Amendment advocates, the prosecutors dropped the case. His lawyer Philip Dubois speculated that, facing such a loud backlash from civil libertarians, “the government did not want to get into a public argument about some important policy issues.”

Meanwhile, the tech company Netscape used the same RSA algorithm to create Secure Sockets Layer, a system for encrypting logins and credit card transactions on the web. (Any website that starts with https is protected that way.) In order to avoid being prosecuted, Netscape created two different versions of its browser, a “U.S. edition” with strong encryption and an “international edition” with weaker, Washington-approved encryption that could easily be broken.

Export control laws were becoming a laughingstock. A popular T-shirt among computer scientists featured the RSA algorithm, along with the label “WARNING: This shirt is classified as a munition and may not be exported from the United States, or shown to a foreign national.” Years later, in 2008, when Congress and telecom providers were discussing mandatory internet filtering, the webcomic xkcd joked that “we should’ve lobbied to keep [encryption] counted as weaponry. Once they get complacent, we break out the Second Amendment.”

Then-President Bill Clinton finally gave in, moving cryptographic software from the Munitions List to the dual-use list in 1996. The U.S. Department of Commerce still requires tech companies to notify them before publishing new encryption software, though.

Weaponized Proteins

Cryptographers are not the only civilian scientists the U.S. government has tried to punish for international collaboration. During the Trump administration, an Iranian medical researcher’s attempts to explore potential stem cell innovations led to a bizarre international criminal case.

In 2016, medical professor Masoud Soleimani asked for a favor from a former student, Mahboobe Ghaedi, who then worked at AstraZeneca in Maryland. Soleimani—no relation to the now-dead general—needed some protein samples for his research, which strove to find ways to use stem cells to treat diseases such as cancer, liver cirrhosis, and diabetes. The samples would cost $40,000 in Iran but only $8,000 in America, so he wanted to order them to Ghaedi’s address and have her bring them to Iran next time she visited.

The professor made similar requests of Maryam Jazayeri, another former student of his in America, and Matteo Taerri, a Florida doctor whose nephew had studied under Soleimani. Unfortunately for all of them, airport security did not like the look of Ghaedi’s protein samples. U.S. Customs and Border Protection confiscated the materials and let Ghaedi go on her merry way. Unbeknownst to her, the feds began secretly building a case—and won sealed grand jury indictments for export violations against all of the scientists.

Then they laid a trap. The government granted Soleimani a visa to attend a Mayo Clinic research program in Minnesota but revoked his visa and had him arrested at the airport. Federal agents pounced on Ghaedi, Jazayeri, and Taerri soon after. Department of Commerce official Ariel Leinwand accused the scientists of “a very large conspiracy” to export items that could be used “for chemical and biological warfare purposes.”

Iran? Weapons of mass destruction? Sounds terrifying—if it were anything more than a tall tale. In reality, the materials were going toward research into tissue regeneration. Lawyers for Ghaedi argued that the samples had “no potential nefarious use that would jeopardize the United States or its people.” U.S. Attorney Greg Pizzo came close to conceding as much, arguing that it is “frankly irrelevant” under export law whether there was “an innocent use for these items.”

The Trump administration wasn’t really interested in bringing these scientists to justice for failing to do their paperwork, it turns out. Instead, they were bargaining chips in a hostage exchange. Iran had jailed Princeton University historian Xiyue Wang on even more egregiously trumped-up charges while he was doing work at an Iranian archive. The Trump administration sent Soleimani back to Iran in exchange for Wang’s freedom and later let Taerri go as part of an exchange for an American tourist jailed in Iran.

“Thank you to Iran on a very fair negotiation,” President Donald Trump stated after the Wang-Soleimani exchange. “See, we can make a deal together!” Once the exchange was concluded, prosecutors quietly dropped the charges against Ghaedi and Jazayeri. Export control laws had been just vague enough to use as a political tool—one effective at grabbing hostages.

Weaponized Breathing

The U.S. government has made clear over and over again that, even as it throws around vague insinuations that exporters are threatening national security, it doesn’t actually have to prove a nefarious use for the goods.

In 2016, Libyan-American businessman Osama Bensadik told Peter Sotis, a scuba equipment supplier in Florida, that he wanted rebreathers for a shipwreck dive in the Mediterranean Sea. Sotis agreed to sell the equipment and teach Bensadik how to dive but found out that he couldn’t ship the rebreathers to Libya due to export restrictions. Sotis told Bensadik that he was free to pick up the equipment from the warehouse in Florida.

A week after Sotis handed over the rebreathers to Bensadik, the U.S. Department of Commerce called Sotis, asking about the shipment. Sotis played dumb. Soon after, customs officials in a European country confiscated the rebreathers at the border, and the U.S. government indicted Sotis for violating the EAR, even though he wasn’t even the person who shipped them out of the country.Prosecutors noted that rebreathers are better suited for stealthy military operations than are other types of scuba gear, because they do not leave behind a trail of bubbles.

“If someone wants to pick something up from us and ship it overseas, it’s none of our business,” Sotis later told the Miami Herald. “How do I stop a shipment from a company I didn’t hire?” In a separate interview with the FlKeysNews, he called it “just ridiculous” to say that his customers were “terrorists.”

While diving off the coast of Libya may sound like a strange hobby—and Bensadik had driven an ambulance during the Libyan civil war—the feds never proved the scuba gear was meant for anything other than shipwreck exploration. In fact, they never even tried. Rather than putting Bensadik on trial for whatever allegedly dangerous activities they thought he was planning, prosecutors focused entirely on Sotis and his store manager Emilie Voissem. Both of them were convicted and imprisoned—Sotis for 57 months, Voissem for five months—solely for disobeying the Department of Commerce.

Weaponized Accident Data

Not only does the long arm of U.S. export regulations reach into the depths of the sea and the human body, it also extends into outer space. Many types of spacecraft, both rockets and satellites, are on the Munitions List, meaning that they fall under ITAR. Given that information about weapons is regulated like the weapons themselves, that makes it hard for Americans to collaborate with or even hire foreigners in the space industry.

In the late 1990s, the Clinton administration decided to move satellites from the Munitions List to the less-restrictive EAR controls. Under the watchful eye of U.S. officials, American telecom companies began paying to launch their satellites on China’s Long March rockets. When that experiment went wrong, it led to regulations that kneecapped the American space industry for over a decade.

The problem was that Chinese launch vehicles just weren’t up to snuff. In December 1995, a Long March rocket carrying a Hughes Electronics satellite exploded in midair, killing at least six people on the ground. While the Chinese space program blamed the Hughes satellite, Hughes engineers determined the problem was the rocket’s fairing, or nose cone.

Company lawyers debated what they were allowed to put in the accident report, both because rocket design was still covered by ITAR and because the Chinese government would be offended by the implication that its rockets were shoddy. They decided to wink and nudge the Chinese scientists toward a solution. “Politically we could not write down on paper that the fairing had failed,” Hughes official John Perkins later testified. “This document was trying to say, ‘We are not going to say that. Now, go fix the fairing.’”

Then, in February 1996, another Long March rocket carrying a Space Systems/Loral satellite exploded, destroying the hotel where foreign engineers were staying and burning to death between 56 and 200 Chinese bystanders. Several American companies joined an independent review board to figure out what was causing these deadly accidents. A Loral engineer sent the Chinese space program the committee’s final report, which determined that the Long March rocket had a faulty measurement system. He redacted sensitive technical data before faxing it over.

The space industry thought it was providing helpful (and lifesaving) safety information to China. But the U.S. government treated the report as an illegal export of weapons technology. The Defense Department alleged in 1997 that the accident investigations would help China build up its ballistic missile program. Hughes had to pay a $32 million fine, and Loral had to pay another $14 million. All commercial satellites were moved back onto the Munitions List.

A University of Colorado Law Review article called it the “overreaction that destroyed an industry.” The U.S. share of the global satellite market fell by 21 percent between 1996 and 2006. When the company Bigelow Aerospace wanted to test an inflatable space habitat called Genesis I, the U.S. government initially refused to allow Bigelow to “export” the metal frame and Kevlar sheeting to the launchpad in Russia unless the items were kept under 24/7 guard. After all, any satellite was legally a weapon.

“If the Genesis I stand were placed upside down, covered with a nice checkered tablecloth, and you put a couple of plates on it, one would be hard pressed to distinguish the stand from any other table already commonly available at Moscow’s local IKEA outlet,” a Bigelow executive complained. The feds eventually backed down on the guard requirement.

Finally, in 2013, the Obama administration and congressional Republicans moved (some) commercial satellites back from ITAR to the EAR, albeit with a ban on exports to China, North Korea, and countries accused of sponsoring terrorism. Nevertheless, export controls cast a long shadow over the space industry, especially since the rockets themselves are still considered weapons.

Weaponized Hiring

Probably the biggest day-to-day hurdle that ITAR creates for the space industry regards staffing. Any company that hires a “foreign person”—that is, someone without U.S. citizenship, a green card, or asylum status—needs a State Department license for that person to work on ITAR-controlled technology. The employer has to strictly document what information is given to the employee, including through casual conversations. Remember, sharing information about a “weapon” with a foreigner is seen by the government as the same as exporting the weapon itself.

Paired with civil rights law, export controls create a confusing situation for employers. After General Motors was fined $20 million for giving ITAR-controlled data to foreign employees in 2005, the company imposed strict ITAR compliance requirements. But those requirements were too strict, forcing green card holders to provide the company with their foreign passports. That policy caused the government to fine General Motors another $365,000 for discrimination in 2023.

When SpaceX announced that it would only hire U.S. citizens or green card holders to make ITAR compliance easier,the Justice Department sued SpaceX for discrimination based on immigration status. The case is currently held up due to procedural issues.

“The key is that companies are prohibited from restricting both hiring and staffing practices based on citizenship or national origin,” attorney Lisa Mays told Bloomberg Law. “So even where a company would require an export license to employ a non-U.S. person in a position, the company must pick the best candidate and then apply for the required export license as necessary.”

Mays accidentally captured the contradiction at the heart of the system. America wants to be a meritocracy, an engine of innovation where talent and know-how flow in freely. But it also wants to strictly control the knowledge that flows out.

The only way to do that is to construct and enforce an absurd view of the world—where books are fighter jets, lines of code are bullets, cancer researchers are potential bioterrorists, and an accident report is a blueprint to destroy the world.

The post Are Books and Brains Weapons? The U.S. Government Thinks So. appeared first on Reason.com.

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Source: https://freedombunker.com/2024/10/27/are-books-and-brains-weapons-the-u-s-government-thinks-so/