DoD Technical Data

Appropriate marking and control of certain unclassified technical data dealing with military or space applications are important because foreign corporations and others acting on behalf of foreign governments may otherwise file requests for this information under the Freedom of Information Act. These requests often seek entire defense contract packages. For example, when a major corporation in a friendly country decided to enter the space industry, it made extensive use of FOIA requests as a means of obtaining information from NASA. By some estimates, the corporation filed over 1,500 FOIA requests in a single year.

Federal law (15 USC 140c) allows the Secretary of Defense to withhold from public disclosure any technical data with military or space applications that is in the possession of -- or under control of -- the Department of Defense and that may not be exported lawfully without an approval, authorization or license under the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR). This does not apply to scientific, education, or other data that qualify for General License GTDA under the EAR. The rationale for this restriction is that public release may constitute an export. DoD Directive 5230.25, "Withholding Unclassified Technical Data from Public Disclosure," implements this law.

Department of Defense Directive 5230.24 establishes a number of procedural requirements intended to identify and control the dissemination of export-controlled technical documents created by DoD-funded research, development, test and evaluation programs. These procedures apply to engineering drawings, standards, specifications, technical manuals, blueprints, drawings, plans, instructions, computer software and documentation, and other technical information that can be used or be adapted for use to design, engineer, produce, manufacture, operate, repair, overhaul, or reproduce any military or space equipment or technology concerning such equipment.

Statutory/Regulatory Responsibilities & Obligations

Marking and Distribution of Technical Data

image  One of seven possible distribution statements must be placed on technical documents, both classified and unclassified. These statements facilitate control, distribution and release of these documents without the need to repeatedly refer questions to the originator of the document. The originating office may make case-by-case exceptions to the distribution limitations imposed by the statements.

For guidance in assigning and marking distribution controls are per DoD Directive 5230.24, see Distribution Statements on Technical Documents.

Access to Technical Data

It is DoD policy to provide technical data governed by these controls to individuals and enterprises that are determined to be currently qualified U.S. government contractors when such data relates to a legitimate business purpose for which the contractor is certified.

Qualified U.S. government contractors who receive technical data governed by these controls may disseminate such data to others for purposes consistent with their certification without the prior permission of the controlling DoD office or when such dissemination is:

  • To any foreign recipient for which the data are approved, authorized, or licensed under the Export Administration Regulations or the International Traffic in Arms Regulations.
  • To another currently qualified U.S. government contractor, but only within the scope of the certified, legitimate business purpose of such recipient.
  • To the Departments of State and Commerce for the purpose of applying for appropriate approvals, authorizations, or licenses under the Export Administration Regulations or the International Traffic in Arms Regulations.

In addition to these need-to-know controls, access is limited to U.S. citizens or a person admitted lawfully into the United States for permanent residence and who is located in the United States.

Safeguarding Technical Data

The possessor of technical data must take reasonable care to deny access to unauthorized persons. Technical data may be put on an Internet web site only if access to the site is limited to a specific target audience and the information is encrypted. See Pre-Publication Review of Web Site Content.

Enforcement

Agencies have authority to impose administrative sanctions for failure to comply with regulations. Title 22 USC 2778 allows a $1,000,000 fine and ten years imprisonment for willful violation of arms control laws.

Legal & Regulatory Authorities
Title 10, United States Code, Section 140c – Withholding of Information from the Public.
DoD Directive 5230.24 - Distribution Statements on Technical Documents.
DoD Directive 5230.25 - Withholding of Unclassified Technical Data from Public Disclosure.

Related Topics: Distribution Statements on Technical Documents, Pre-Publication Review of Web Site Content.

 

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