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

[Jorge]

ITAR makes it the law to only hire citizens.

No. ITAR makes it the law to only disclose ITAR-controlled information to "US Persons".

See:
https://exportcompliancesolutions.com/blog/2018/09/20/u-s-persons-include-just-citizens/

US Persons include more than just citizens. In the above example, Clifford Chance US LLP was fined $132,000 and faced other penalties for excluding non-citizens from ITAR-controlled positions.

Companies (including SpaceX) hiring for ITAR-controlled projects advertise the US Person restriction prominently on their job postings.
https://boards.greenhouse.io/spacex/jobs/5058962002?gh_jid=5058962002

ITAR REQUIREMENTS:

To conform to U.S. Government space technology export regulations, including the International Traffic in Arms Regulations (ITAR) you must be a U.S. citizen, lawful permanent resident of the U.S., protected individual as defined by 8 U.S.C. 1324b(a)(3), or eligible to obtain the required authorizations from the U.S. Department of State. Learn more about the ITAR here.

In this case, the person was denied employment because they weren’t a US person, not just that they weren’t a US citizen. So the original post still works as long as you substitute permanent resident instead of citizen

My mistake, then. Unfortunate that the subject line is wrong. This sounds like a fairly straightforward case, then.

[scientist]

ITAR makes it the law to only hire citizens.

No. ITAR makes it the law to only disclose ITAR-controlled information to "US Persons".

See:
https://exportcompliancesolutions.com/blog/2018/09/20/u-s-persons-include-just-citizens/

US Persons include more than just citizens. In the above example, Clifford Chance US LLP was fined $132,000 and faced other penalties for excluding non-citizens from ITAR-controlled positions.

Companies (including SpaceX) hiring for ITAR-controlled projects advertise the US Person restriction prominently on their job postings.
https://boards.greenhouse.io/spacex/jobs/5058962002?gh_jid=5058962002

ITAR REQUIREMENTS:

To conform to U.S. Government space technology export regulations, including the International Traffic in Arms Regulations (ITAR) you must be a U.S. citizen, lawful permanent resident of the U.S., protected individual as defined by 8 U.S.C. 1324b(a)(3), or eligible to obtain the required authorizations from the U.S. Department of State. Learn more about the ITAR here.

In this case, the person was denied employment because they weren’t a US person, not just that they weren’t a US citizen. So the original post still works as long as you substitute permanent resident instead of citizen

Hi. Sorry but that is still not true. The wording includes this part: "or eligible to obtain the required authorizations from the U.S. Department of State". Therefore being eligible to become a permanent resident should suffice for hiring. In reality they simply do not accept non-US persons at all (as I experienced myself).

[RedLineTrain]

Honestly, I don't know why the DOJ would push this. What is the point, if any, they are trying to make? Don't they have anything better to do than to run up SpaceX's legal bills?

But in any event, if the DOJ continues to pursue it, this broad subpoena probably will go before a judge and it will be narrowed to something with which SpaceX can reasonably comply.

[racevedo88]

Have you guys ever considered , that as a National Security Launches provider , they might have security clearances requirements that require US citizenship? Certain level of clearances require a person to be a us citizen. This is independent of itars.

[Vanspace]

ITAR makes it the law to only hire citizens.

No. ITAR makes it the law to only disclose ITAR-controlled information to "US Persons".

See:
https://exportcompliancesolutions.com/blog/2018/09/20/u-s-persons-include-just-citizens/

US Persons include more than just citizens. In the above example, Clifford Chance US LLP was fined $132,000 and faced other penalties for excluding non-citizens from ITAR-controlled positions.

Companies (including SpaceX) hiring for ITAR-controlled projects advertise the US Person restriction prominently on their job postings.
https://boards.greenhouse.io/spacex/jobs/5058962002?gh_jid=5058962002

ITAR REQUIREMENTS:

To conform to U.S. Government space technology export regulations, including the International Traffic in Arms Regulations (ITAR) you must be a U.S. citizen, lawful permanent resident of the U.S., protected individual as defined by 8 U.S.C. 1324b(a)(3), or eligible to obtain the required authorizations from the U.S. Department of State. Learn more about the ITAR here.

The wording was chosen to reflect actual industry practice. Active ITAR administrators in this thread have noted that the "US Person" in actual practice has always meant US Citizens Only. Courts tend to cut though "magic code words" that somehow make the law not apply( see Literacy Tests, Separate but Equal, Sovereign Citizens, Unfinished Lower Receivers etc). In this case "US Person" seems to function as magic words that serves to make it appear EEOC laws are being followed while they are being violated.

Literacy Tests for Voting is probably the most directly on point example. In theory, the laws provided a way for minorities to pass and vote, in practice it did not. In theory ITAR allows a non-citizen to be hired, in practice it does not. This is likely the central issue of the original employment investigation, given the facts so far. Particularly with the unicorn like rarity of the complainant who is 1)Qualified as a Space Technology Strategist, 2)Not a citizen or permanent resident, 3)Legally permitted to work in the US and 4)Knowledgeable enough about US employment law and secure enough to not care about blacklisting for filing the complaint. That such a person even exists is remarkable.

[Vanspace]

Honestly, I don't know why the DOJ would push this. What is the point, if any, they are trying to make? Don't they have anything better to do than to run up SpaceX's legal bills?

But in any event, if the DOJ continues to pursue it, this broad subpoena probably will go before a judge and it will be narrowed to something with which SpaceX can reasonably comply.

The DoJ HATES anybody being beyond the reach of the law. If ITAR is higher than employment law then simply hiring everybody under ITAR makes the company completely immune most employment law.  If you can't even ask who the employees are it is impossible to prove discrimination. The DoD HATES having secret information getting out. If employment law is higher than ITAR then any secret project can get uncovered. That is the why.

Conflicts between military secrecy and employment law are not new. Famously, the DoD won a workplace injury lawsuit by claiming Area 51 does not exist. With that in mind, how this ends up is pretty far from certain.

[Davidthefat]

US Persons also include persons with permanent residency in the US (Aka Green Card). I think the suit is mentioning that they may have been discriminating against fully US Person status people that weren't citizens (the green card holders). Not non us person status people as that's strictly restricted by ITAR.

TBH, one of the first things I did turning 18 was to apply for a US citizenship even though I was a "US Person" with a Green Card. Worked at several ITAR restricted workplaces in the Aerospace industry with no issues with a US Passport, but I am not sure how much more difficult it is with only a green card (I presume in theory, not any more difficult, but I think the lawsuit may be insinuating it me be).

[Robotbeat]

US Persons also include persons with permanent residency in the US (Aka Green Card). I think the suit is mentioning that they may have been discriminating against fully US Person status people that weren't citizens (the green card holders). Not non us person status people as that's strictly restricted by ITAR.
...

No, the person in the suit doesn’t have a Green Card, either. The headline was misleading.

[Robotbeat]

I (and almost certainly SpaceX) would be more than happy if ITAR gets squashed a bit by this lawsuit. It’s the government who should be being challenged here (for contradictory laws, one of which—ITAR—might be unconstitutional), not SpaceX for trying to follow the strict rules around export control and immigration law.

[Lars-J]

...for contradictory laws, one of which—ITAR—might be unconstitutional...

Posting the same thing over and over does not make it true. Stop beating that silly drum.

[GalacticIntruder]

DOJ makes it clear to me that ITAR and EAR cannot stop employment if qualified. It does say employer needs State and DoD reviews and employee may be barred from projects without it.  Therefore I interpret this is a you must hire the person if qualified but they may not be allowed on a project unless State and DoD agrees.  In Practice, no employer would hire legal status questionable persons since it is a pain, hence this lawsuit.

[matthewkantar]

...for contradictory laws, one of which—ITAR—might be unconstitutional...

Posting the same thing over and over does not make it true. Stop beating that silly drum.

I doesn’t make it not true either. The feds backed down and settled iDefense Distributed v. United States Department of State, rather than letting the courts work it out. I am no legal scholar, but the constitutionality of ITAR seems at least a little sketchy.

[Frogstar_Robot]

I know a defense company that hires people for 'secret' work. It takes 6 months to get new employees vetted by the government, so they sit around for 6 months doing basically nothing. If the clearance comes through, they can be put on a contract project. But if the clearance is refused, they are terminated and escorted off the premises the same day.

Obviously, it is a considerable expense for the company to have people doing nothing, and the refusal rate is significant, but the company factors that in to the cost of any contracts.

[Vanspace]

I (and almost certainly SpaceX) would be more than happy if ITAR gets squashed a bit by this lawsuit. It’s the government who should be being challenged here (for contradictory laws, one of which—ITAR—might be unconstitutional), not SpaceX for trying to follow the strict rules around export control and immigration law.

What if SpaceX set this up to loosen/break some of the ITAR restrictions?

1) It is well known Musk wants the ITAR hiring restrictions lifted.
2) Long term, If ITAR stays, the only people that can go to Mars are US Citizens. Not compatible with the Interplanetary Humanity goal.
3) Long term ITAR will have to recognize Commercial vs Military Rockets just as it recognizes the same distinction in ships, planes, cars, computers etc. Cryogenic Boosters are not a military tech and every "enemy" (China, Russia, Iran, NK) already makes them. When the US is buying boosters from Russia, classifying them as weapons makes no sense.

The judge has only 4 realistic options in his ruling

1) ITAR wins making SpaceX immune to oversight. Not gonna happen
2) DoJ wins IDing secret project employees. Not gonna happen
3) Some mishmash procedure to maintain secrecy is devised.  Most likely to happen but figuring out how to satisfy both the DoJ and DoD at the same time is gonna need King Solomon levels of legal genius. Given the difficulty reconciling the two laws and the absolutist nature of the principles behind them (Military Secrecy vs Equality under the law), any ruling trying to balance them is highly likely to become a major precedence.
4) Moot the problem by declaring that what SpaceX is doing is not covered by ITAR. The clean room for National Security launches needs secrecy but not much else. This is going to be a very attractive option and carve outs of ITAR have happened before with encryption and computer processors.

None of these outcomes are bad for SpaceX and it makes a lot of strategic sense to take the shot. Which brings us back to the unicorn complainant. Such an incredibly rare set of traits making a perfect test case does not just happen randomly.

Wild Conjecture Ahead:
SpaceX specifically recruited the candidate for the purpose of setting up this legal battle. Send him to the DoJ to "force" SpaceX to hire. Given the "perfect" fit for the complaint and the potential benefits, SpaceX has a lot of good reasons to actively encourage this legal battle.

[Robotbeat]

You are wrong about ITAR being easy to cut out. The rockets themselves are all ITARed up the ying yang. Virtually everything SpaceX does it ITAR/EAR (maybe not user terminals for Starlink? But even there...)

I’m telling you, I work in a materials science part of an aeronautics place (non-military), and literally everything we publish has to go through legal review to ensure nothing in there is export control. It’s an insane process that takes forever, but rockets are even more highly controlled than civilian aeronautics. SpaceX had a really hard time even getting some foreign nationals who were customers of theirs on site to see one of their launches. Having an actual employee that would basically need to be 24/7 chaperoned is just not gonna happen. This is not realistic unless ITAR/EA is massively reformed.

[woods170]

ITAR makes it the law to only hire citizens.

No. ITAR makes it the law to only disclose ITAR-controlled information to "US Persons".

See:
https://exportcompliancesolutions.com/blog/2018/09/20/u-s-persons-include-just-citizens/

US Persons include more than just citizens. In the above example, Clifford Chance US LLP was fined $132,000 and faced other penalties for excluding non-citizens from ITAR-controlled positions.

Companies (including SpaceX) hiring for ITAR-controlled projects advertise the US Person restriction prominently on their job postings.
https://boards.greenhouse.io/spacex/jobs/5058962002?gh_jid=5058962002

ITAR REQUIREMENTS:

To conform to U.S. Government space technology export regulations, including the International Traffic in Arms Regulations (ITAR) you must be a U.S. citizen, lawful permanent resident of the U.S., protected individual as defined by 8 U.S.C. 1324b(a)(3), or eligible to obtain the required authorizations from the U.S. Department of State. Learn more about the ITAR here.

In this case, the person was denied employment because they weren’t a US person, not just that they weren’t a US citizen. So the original post still works as long as you substitute permanent resident instead of citizen

Hi. Sorry but that is still not true. The wording includes this part: "or eligible to obtain the required authorizations from the U.S. Department of State". Therefore being eligible to become a permanent resident should suffice for hiring. In reality they simply do not accept non-US persons at all (as I experienced myself).

Just wondering: have you actually contacted the US Department of State to find out if you were 'eligible to obtain the required authorization' from them?

[TGebs15]

Is a company ever forced to hire someone? Like what is the legal standing if during the hiring process it was decided that a person who is qualified was not chosen because they didn’t come across as a good fit to the group hiring? I’m no legal expert but it seems like a manager or team has a right to decide they don’t want to work someone that had a personality they didn’t like. If you are allowed to make hiring decisions beyond just resume qualifications then wouldn’t it be on the person who didn’t get hired to prove that they were discriminated against illegally, rather than just not fitting in?

[steveleach]

Is a company ever forced to hire someone? Like what is the legal standing if during the hiring process it was decided that a person who is qualified was not chosen because they didn’t come across as a good fit to the group hiring? I’m no legal expert but it seems like a manager or team has a right to decide they don’t want to work someone that had a personality they didn’t like. If you are allowed to make hiring decisions beyond just resume qualifications then wouldn’t it be on the person who didn’t get hired to prove that they were discriminated against illegally, rather than just not fitting in?

Isn't that exactly what's happening here? Someone is claiming that they were discriminated against illegally, and the DOJ is looking to see if there is any proof of that being a systematic bias.

[TGebs15]

Is a company ever forced to hire someone? Like what is the legal standing if during the hiring process it was decided that a person who is qualified was not chosen because they didn’t come across as a good fit to the group hiring? I’m no legal expert but it seems like a manager or team has a right to decide they don’t want to work someone that had a personality they didn’t like. If you are allowed to make hiring decisions beyond just resume qualifications then wouldn’t it be on the person who didn’t get hired to prove that they were discriminated against illegally, rather than just not fitting in?

Isn't that exactly what's happening here? Someone is claiming that they were discriminated against illegally, and the DOJ is looking to see if there is any proof of that being a systematic bias.

Suppose so, just seems like there would be more details about specific claims. From what we’ve seen they’ve just been talking eligibility to work at SpaceX. I guess it’s just a waiting game to see what happens.

Update:

So after reading a CNBC article from today, the guy made it past the first round of interviews and was rejected during the technical interview rounds. This seems like a personal vendetta for not being hired and that one incident is being used in order to launch a broad investigation into SpaceX.

https://www.cnbc.com/amp/2021/02/01/spacex-vs-doj-judge-signals-it-will-be-tough-to-block-probe-subpoena.html

[steveleach]

Is a company ever forced to hire someone? Like what is the legal standing if during the hiring process it was decided that a person who is qualified was not chosen because they didn’t come across as a good fit to the group hiring? I’m no legal expert but it seems like a manager or team has a right to decide they don’t want to work someone that had a personality they didn’t like. If you are allowed to make hiring decisions beyond just resume qualifications then wouldn’t it be on the person who didn’t get hired to prove that they were discriminated against illegally, rather than just not fitting in?

Isn't that exactly what's happening here? Someone is claiming that they were discriminated against illegally, and the DOJ is looking to see if there is any proof of that being a systematic bias.

Suppose so, just seems like there would be more details about specific claims. From what we’ve seen they’ve just been talking eligibility to work at SpaceX. I guess it’s just a waiting game to see what happens.

I think its normal in these situations for both sides to keep it low key with minimum information leaked. That way neither side looks bad when they settle.