Dept Of Justice Investigating SpaceX For Not Hiring Non-US Citizens

[whitelancer64]

Just a reminder that sensitive technology is subject to many more restrictions than just ITAR. For instance, EAR which defines “U.S. Person” differently than the DoJ does for ITAR.

For reference:

U.S. Person.

(a) For purposes of §§ 732.3(j), 736.2(b)(7), 740.21(e)(1), 744.6, 744.10, 744.11, 744.12, 744.13, 744.14, and 745.2(a)(1) of the EAR, the term U.S. person includes:

(1) Any individual who is a citizen of the United States, a permanent resident alien of the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3);

(2) Any juridical person organized under the laws of the United States or any jurisdiction within the United States, including foreign branches; and

(3) Any person in the United States.

(b) See also §§ 740.9, 740.14, and 740.21(f)(2) and parts 746 and 760 of the EAR for definitions of “U.S. person” that are specific to those sections and parts.

[Robotbeat]

Yeah, but EAR is not a SINGLE statute or executive order but in fact is authorized by a series of such statutes and executive orders, some of which use a different definition of US person. The only safe option, then, would be to use the definition which works in all those definitions, ie permanent resident or citizen.

[Barley]

Yeah, but EAR is not a SINGLE statute or executive order but in fact is authorized by a series of such statutes and executive orders, some of which use a different definition of US person. The only safe option, then, would be to use the definition which works in all those definitions, ie permanent resident or citizen.

The scopes of different definitions are usually explicit and clear.  The safe thing to do is to assume they mean what they say and apply the different definitions in the defined scopes.

[Zed_Noir]

Yeah, but EAR is not a SINGLE statute or executive order but in fact is authorized by a series of such statutes and executive orders, some of which use a different definition of US person. The only safe option, then, would be to use the definition which works in all those definitions, ie permanent resident or citizen.

The scopes of different definitions are usually explicit and clear.  The safe thing to do is to assume they mean what they say and apply the different definitions in the defined scopes.

Would you bet your career and likely taking a judicial penalty that you interpreted the many statures and executive orders correctly?

[envy887]

Maybe someone who reads legalese can correct me, but by my reading of the ITAR definition, everyone who isn't both an "LPR" and a "protected person" is a "foreign person".

"§ 120.63 Foreign person.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). ..."

That seems to disprove the claim that non-LPR can work ITAR.

When reading legalese you need to realize that "and", "or", and "not" do not mean "and", "or", and "not" at least in that order.   Also De Morgans laws are mere suggestions and don't apply much of the time.  The precedence and order of evaluation of operators are not well defined so they make it up as they go along, often with different results for apparently identical phrasing.

In the above lawyers will almost certainly read "or" as "and".

The immediately preceding section, 120.62, uses an identical structure to form almost the exact same sentence:

"U.S. person means a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3)."

The "or" in 120.62 is definitely a logical "or", but I don't understand why the "or" here would mean "or", while in the very next section in an identical construct it would mean "and".

[mn]

Maybe someone who reads legalese can correct me, but by my reading of the ITAR definition, everyone who isn't both an "LPR" and a "protected person" is a "foreign person".

"§ 120.63 Foreign person.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). ..."

That seems to disprove the claim that non-LPR can work ITAR.

When reading legalese you need to realize that "and", "or", and "not" do not mean "and", "or", and "not" at least in that order.   Also De Morgans laws are mere suggestions and don't apply much of the time.  The precedence and order of evaluation of operators are not well defined so they make it up as they go along, often with different results for apparently identical phrasing.

In the above lawyers will almost certainly read "or" as "and".

The immediately preceding section, 120.62, uses an identical structure to form almost the exact same sentence:

"U.S. person means a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3)."

The "or" in 120.62 is definitely a logical "or", but I don't understand why the "or" here would mean "or", while in the very next section in an identical construct it would mean "and".

The first section describes a 'US person' which satisfies condition A or B

The next paragraph describes a foreign person,  now there's lots of ways to express that:

'not A or B' to be interpreted as 'neither A nor B'.

'not A and B', to be interpreted as 'not A and not B'

Or the precise programming construct of 'not (A or B)'

If they were real programmers they would have written 'anyone who is not a US person as described in section...'

All these sentences ultimately mean the same thing. But the writers are not programmers so what they actually wrote is fairly clear and obvious IMHO (obviously not a lawyer)

[Barley]

Maybe someone who reads legalese can correct me, but by my reading of the ITAR definition, everyone who isn't both an "LPR" and a "protected person" is a "foreign person".

"§ 120.63 Foreign person.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). ..."

That seems to disprove the claim that non-LPR can work ITAR.

When reading legalese you need to realize that "and", "or", and "not" do not mean "and", "or", and "not" at least in that order.   Also De Morgans laws are mere suggestions and don't apply much of the time.  The precedence and order of evaluation of operators are not well defined so they make it up as they go along, often with different results for apparently identical phrasing.

In the above lawyers will almost certainly read "or" as "and".

The immediately preceding section, 120.62, uses an identical structure to form almost the exact same sentence:

"U.S. person means a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3)."

The "or" in 120.62 is definitely a logical "or", but I don't understand why the "or" here would mean "or", while in the very next section in an identical construct it would mean "and".

The first section describes a 'US person' which satisfies condition A or B

The next paragraph describes a foreign person,  now there's lots of ways to express that:

'not A or B' to be interpreted as 'neither A nor B'.

'not A and B', to be interpreted as 'not A and not B'

Or the precise programming construct of 'not (A or B)'

All these sentences ultimately mean the same thing. But the writers are not programmers so what they actually wrote is fairly clear and obvious IMHO (obviously not a lawyer)

What they actually wrote was
'not A or not B' to be interpreted as 'not A and not B'

This may be clear (on the basis that they could not have meant what they said) but it is neither standard logic nor standard English, hence my snide comment about lawyers. It doesn't help that A and B are not clearly distinct because of  8 U.S.C. 1324b(a)(3)(B)

IMHO if they wanted to define a foreign person as person who is not a US person, they should have just said that.  Or forego defining "foreign person" altogether and use 'not a US person' (with grammar adjustments) where needed.

Maybe Shakespeare was right.

[M.E.T.]

Legalese aside, what’s the logic behind this law?

Does the process of granting asylum automatically clear a person of being a foreign spy? Seems an easy loophole to exploit for a determined and well resourced foreign adversary.

[whitelancer64]

Legalese aside, what’s the logic behind this law?

Does the process of granting asylum automatically clear a person of being a foreign spy? Seems an easy loophole to exploit for a determined and well resourced foreign adversary.

Asylee and refugee claims are vetted by the US Dept. of State with a mandatory security screening, so I guess in their eyes, basically yeah.

[Robotbeat]

Then why not just give them permanent residence?

[whitelancer64]

Then why not just give them permanent residence?

The process can differ a bit depending on an individual's circumstances, but people can only seek asylum once they are already at a port of entry to the USA, and refugees need to apply for refugee status before they can enter the USA. There is lots of paperwork, an international background check, interviews, and other bureaucratic processes for all of this. Refugees go through an extensive security process, health screenings, and etc. before they can be accepted into the USA. Asylees go through a similar process, but they have to wait in the US while it happens. These processes can take up to a year or more.

Once an asylee / refugee is accepted into the USA as an asylee or refugee, they must wait one year to file for permanent residency. During this time they are legally permitted to live and work in the USA. Once they have filed for permanent residency, the process for obtaining it is pretty vigorous and includes a mandatory security screening through the State and other US government departments. This process usually takes years.

My understanding of all the above is that asylees or refugees who have filed for permanent residency can be hired for ITAR controlled jobs, but can't access ITAR controlled stuff until after they have obtained permanent residency.

[king1999]

Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex, and national origin. This includes discrimination based on pregnancy, sexual orientation, and gender identity.

I don't see immigration status as a base for discrimination. A good lawyer may be able to argue in SpaceX's favor.

[Robotbeat]

Maybe, but I can see this being settled.

[Zed_Noir]

Maybe, but I can see this being settled.

Maybe not. Musk and probably others in the aerospace industry would like some clarity on who can be hired and do ITAR work. The DoJ picked the wrong fight with someone who can afford to keep this in the courts for a very long time, IMO.

[whitelancer64]

Maybe, but I can see this being settled.

Maybe not. Musk and probably others in the aerospace industry would like some clarity on who can be hired and do ITAR work. The DoJ picked the wrong fight with someone who can afford to keep this in the courts for a very long time, IMO.

I don't think it'll be in the courts for a very long time, one way or the other. It's in everyone's best interests to settle things quickly.

[M.E.T.]

Better for Elon to invest his money in changing who runs the DoJ.

[abaddon]

Better for Elon to invest his money in changing who runs the DoJ.

I think this is verging on Space Policy and... yikes.

Or, you know, Elon could work with the system like he does with all the other government agencies and figure out a resolution that is acceptable to all parties.  Rather than, say, launching when the FAA is telling him he's not licensed to launch and having to ask for forgiveness later.

[Robotbeat]

Yeah, this thread could potentially belong in that section.

[edzieba]

For reference, a case against AJR for the same issue (rejection of a US Person for an ITAR role due to immigration status) was settled in favour of the DoJ. The DoJ has also previously provided advisories on this issue in April 2023, in May 2016, in February 2013, etc.

::EDIT:: It's not just SpaceX and AJR who have run afoul of an overly broad interpretation of ITAR restrictions, and it even occurs outside of aerospace.

[Robotbeat]

The 2023 advisory I think was written specifically with this case in mind. It is the DoJ’s opinion, not something Established in a court of law

The AJR case was about a permanent resident (greencard holder), which is far more cut and dried than this case. And it was settled, not decided by a court.