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

[Vanspace]

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.

I never said it would be easy, just that it has been done before.

In my analysis it comes down to which of four possibilities is easiest. I think cutting ITAR is only the second most likely with some Frankenstein process to give the DoJ some symbolic oversight being most likely.

Like with microprocessors and encryption before, eventually the Defence Department going to have to decide if keeping booster tech in ITAR is worth the danger of having ITAR rewritten. When millions of people were wearing T-Shirts with encryption code, they were kinda forced to make changes. When trillions of dollars became involved in computer technology, that also forced changes. I don't think this case would have enough impact to force major changes but I do see a lot of small concessions from the DoD being required to create the Frankenstein process. Of such small victories is ultimate triumph made.

[Nascent Ascent]

Nation sponsored tech theft is a known problem.

[rubicondsrv]

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.

I never said it would be easy, just that it has been done before.

In my analysis it comes down to which of four possibilities is easiest. I think cutting ITAR is only the second most likely with some Frankenstein process to give the DoJ some symbolic oversight being most likely.

Like with microprocessors and encryption before, eventually the Defence Department going to have to decide if keeping booster tech in ITAR is worth the danger of having ITAR rewritten. When millions of people were wearing T-Shirts with encryption code, they were kinda forced to make changes. When trillions of dollars became involved in computer technology, that also forced changes. I don't think this case would have enough impact to force major changes but I do see a lot of small concessions from the DoD being required to create the Frankenstein process. Of such small victories is ultimate triumph made.

You would be basically asking dod/state/congress to admit defeat in attempting to control the spread of ICBM technology.  That would be a very hard sell, and if they give that up most of the other ITAR categories would seem pointless as well.  after all if what amounts to giant highly reliable ICBMS are not covered why should tactical trucks be either. 

It likely will happen eventually, but I don't see employment law gripes being the method of attack.  if anything the employment law would be changed to accommodate ITAR if it does not already. 

edited to remove reference to utility helicopters being ITAR, as they were removed from the USML in 2013, and are therefore no longer ITAR.   regardless, if you look at the US munitions list used for ITAR most of the items listed are far less "scary" to congresscritters and arms export control people than rockets.  ultimately stopping the spread of technologies is doomed to fail, but the attempt has to be made to try and keep the strategic edge they provide as long as practical. 

[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).

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?

as far as I can understand the wording, this 'required authorisation' should refer to an authorisation to obtain the permanent residency card (green card), thus fulfilling the ITAR requirement.

There is multitude of information available on how to apply for the green card, no need to actually 'contact' the Department of State. In my case, I found that I should have a high probability to succeed. But going through the green card process first, without having the employment secured, is too much of a gamble for me.

[QuantumG]

I looked into this a loooong time ago, basically if you've even applied for permanent residency you can be considered a "US Person" and can not be discriminated against... but that won't stop the US government from sending the ITAR goons against anyone who hires you for a role that exposes them to that sort of risk.

[Vanspace]

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.

I never said it would be easy, just that it has been done before.

In my analysis it comes down to which of four possibilities is easiest. I think cutting ITAR is only the second most likely with some Frankenstein process to give the DoJ some symbolic oversight being most likely.

Like with microprocessors and encryption before, eventually the Defence Department going to have to decide if keeping booster tech in ITAR is worth the danger of having ITAR rewritten. When millions of people were wearing T-Shirts with encryption code, they were kinda forced to make changes. When trillions of dollars became involved in computer technology, that also forced changes. I don't think this case would have enough impact to force major changes but I do see a lot of small concessions from the DoD being required to create the Frankenstein process. Of such small victories is ultimate triumph made.

You would be basically asking dod/state/congress to admit defeat in attempting to control the spread of ICBM technology.  That would be a very hard sell, and if they give that up most of the other ITAR categories would seem pointless as well.  after all if what amounts to giant highly reliable ICBMS are not covered why should tactical trucks be either. 

It likely will happen eventually, but I don't see employment law gripes being the method of attack.  if anything the employment law would be changed to accommodate ITAR if it does not already. 

edited to remove reference to utility helicopters being ITAR, as they were removed from the USML in 2013, and are therefore no longer ITAR.   regardless, if you look at the US munitions list used for ITAR most of the items listed are far less "scary" to congresscritters and arms export control people than rockets.  ultimately stopping the spread of technologies is doomed to fail, but the attempt has to be made to try and keep the strategic edge they provide as long as practical.

I completely agree with you and had forgotten about helicopters. Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose. I also agree that rockets are 'scary' which makes it harder. But just like cars and planes and ships and helicopters, rockets also have civilian, completely non-military versions. A cryogenic booster is just about the worst possible design for any realistic military purpose. Military rockets are solid or at least storable liquids and as far as I can tell no military anywhere uses cryogenic rockets for weapons.

Encryption, Microprocessors, Helicopters all were removed when the pressure was raised by strong commercial interests arguing that restrictions have outlived their usefulness. They also had strong public support campaigns (still have my encryption T-Shirt). I can easily see SpaceX/Musk having the needed commercial interest and can see a strong public support movement being fairly easy to get going.

The key here will be separating Cryogenic Boosters from ICBMs. That won't be easy but likely easier than encryption not being spy agency stuff. The advantage being there is are easy physical distinctions between military and commercial rockets as between corporate jets and fighters. It also is a lot easier to get the DoD to admit they failed to stop the spread of ICBMs now that North Korea and Iran have homemade ICBMs.

Not easy but it has been done before and this situation fits a well defined playbook. I don't think this case will actually be the one to cause the change but it does look like it could be the starting gun. Again, long term, I see the Dept of Justice being in favor of removing commercial rockets from ITAR. Last I looked, there were 140 companies trying to build a commercial launch service. DoJ will see that as 140 fast growing companies immune to oversight. DoJ demanding a better solution is a very powerful political force.

[Redclaws]

Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose.

This is kinda silly.  ITAR doesn’t pretend that technical know how can be kept secret forever.  ITAR is about reducing and delaying spread to help maintain a technological edge, and I think it works for that, even if it can be a bit heavy handed.

[Lar]

The whole thing seems rather Kafkaesque but that's just me I guess

[Vanspace]

Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose.

This is kinda silly.  ITAR doesn’t pretend that technical know how can be kept secret forever.  ITAR is about reducing and delaying spread to help maintain a technological edge, and I think it works for that, even if it can be a bit heavy handed.

Its not silly. As you point out, it can't succeed, only delay. By the same token, since its whole purpose is to delay the day it becomes true, it can never admit it has failed or that there is no technological edge to maintain. That results in no effective, predictable mechanism for deciding something should no longer be covered. ITAR is certainly useful and it works but much like the sorcerers apprentice, once it gets going it requires active outside efforts to get it to stop when the job is done. History to date suggest a combined political, legal and financial campaign works the best.

I do not expect ITAR to go away, I expect cryogenic boosters to be dropped from ITAR like helicopters and 286 processors before them.

[steveleach]

Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose.

This is kinda silly.  ITAR doesn’t pretend that technical know how can be kept secret forever.  ITAR is about reducing and delaying spread to help maintain a technological edge, and I think it works for that, even if it can be a bit heavy handed.

Its not silly. As you point out, it can't succeed, only delay. By the same token, since its whole purpose is to delay the day it becomes true, it can never admit it has failed or that there is no technological edge to maintain. That results in no effective, predictable mechanism for deciding something should no longer be covered. ITAR is certainly useful and it works but much like the sorcerers apprentice, once it gets going it requires active outside efforts to get it to stop when the job is done. History to date suggest a combined political, legal and financial campaign works the best.

I do not expect ITAR to go away, I expect cryogenic boosters to be dropped from ITAR like helicopters and 286 processors before them.

Only when Russia, China and India have duplicated the technology and are selling it to anyone with a bit of spare cash and a private army.

[Vanspace]

Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose.

This is kinda silly.  ITAR doesn’t pretend that technical know how can be kept secret forever.  ITAR is about reducing and delaying spread to help maintain a technological edge, and I think it works for that, even if it can be a bit heavy handed.

Its not silly. As you point out, it can't succeed, only delay. By the same token, since its whole purpose is to delay the day it becomes true, it can never admit it has failed or that there is no technological edge to maintain. That results in no effective, predictable mechanism for deciding something should no longer be covered. ITAR is certainly useful and it works but much like the sorcerers apprentice, once it gets going it requires active outside efforts to get it to stop when the job is done. History to date suggest a combined political, legal and financial campaign works the best.

I do not expect ITAR to go away, I expect cryogenic boosters to be dropped from ITAR like helicopters and 286 processors before them.

Only when Russia, China and India have duplicated the technology and are selling it to anyone with a bit of spare cash and a private army.

Russia will gladly sell you one or dozens and even ship it to South America. Remember we are talking here because 20 years ago Russia said Elon didn't have enough money. I'm sure India will be marketing theirs shortly.

[FutureSpaceTourist]

https://www.cnbc.com/2021/02/08/spacex-subpoena-battle-with-the-doj-set-for-march-court-hearing.html

Judge sets March hearing in SpaceX dispute with government over hiring foreigners
PUBLISHED MON, FEB 8 20213:37 PM ESTUPDATED MON, FEB 8 20213:38 PM EST

Michael Sheetz
@THESHEETZTWEETZ
Dan Mangan
@_DANMANGAN

KEY POINTS

SpaceX’s effort to block a U.S. Department of Justice subpoena for hiring records will be heard by a federal judge March 18.

The hearing schedule came after lawyers of SpaceX and DOJ met via videoconference with Judge Michael Wilner for a discussion and planning session.

The DOJ has been for months investigating whether the Elon Musk space company illegally discriminates against foreigners in its hiring.

[Robotbeat]

Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose.

This is kinda silly.  ITAR doesn’t pretend that technical know how can be kept secret forever.  ITAR is about reducing and delaying spread to help maintain a technological edge, and I think it works for that, even if it can be a bit heavy handed.

Its not silly. As you point out, it can't succeed, only delay. By the same token, since its whole purpose is to delay the day it becomes true, it can never admit it has failed or that there is no technological edge to maintain. That results in no effective, predictable mechanism for deciding something should no longer be covered. ITAR is certainly useful and it works but much like the sorcerers apprentice, once it gets going it requires active outside efforts to get it to stop when the job is done. History to date suggest a combined political, legal and financial campaign works the best.

I do not expect ITAR to go away, I expect cryogenic boosters to be dropped from ITAR like helicopters and 286 processors before them.

Naive and Wishful thinking. ITAR goes extremely deep. Everything has to be passed through lawyers before you can be sure it doesn’t violate ITAR or EAR.

[FutureSpaceTourist]

https://www.cnbc.com/2021/03/04/spacex-doj-hiring-subpoena-is-definition-of-government-overreach.html

SpaceX denounces Justice Department’s subpoena in hiring practices investigation as ‘government overreach’
PUBLISHED THU, MAR 4 20211:53 PM EST
Michael Sheetz
@THESHEETZTWEETZ

KEY POINTS

SpaceX denounced the Department of Justice’s subpoena for corporate hiring records, saying the inquiry from the DOJ’s Immigrant and Employee Rights Section “is the very definition of government overreach.”

“SpaceX draws the line at IER’s overreaching attempt to bootstrap that lone, frivolous charge into the wide-ranging (and expanding) pattern-or-practice investigations the agency is now pursuing,” the company wrote in a court filing.

The strong response comes as SpaceX’s first public comment on the DOJ’s investigation, which has been for months looking into whether the space company discriminates against applicants from foreign countries in its hiring.

[Jim]

ITAR is not a DOD imposed.  It is the State Department. Even if SpaceX didn't have NASA or DOD contracts, it would still have to follow ITAR and EAR rules.

[Jim]

1.  I completely agree with you and had forgotten about helicopters. Ultimately, ITAR is trying the impossible and doomed to fail no matter how justified the purpose. I also agree that rockets are 'scary' which makes it harder. But just like cars and planes and ships and helicopters, rockets also have civilian, completely non-military versions. A cryogenic booster is just about the worst possible design for any realistic military purpose. Military rockets are solid or at least storable liquids and as far as I can tell no military anywhere uses cryogenic rockets for weapons.

2.Encryption, Microprocessors, Helicopters all were removed when the pressure was raised by strong commercial interests arguing that restrictions have outlived their usefulness. They also had strong public support campaigns (still have my encryption T-Shirt). I can easily see SpaceX/Musk having the needed commercial interest and can see a strong public support movement being fairly easy to get going.

3.  The key here will be separating Cryogenic Boosters from ICBMs. That won't be easy but likely easier than encryption not being spy agency stuff. The advantage being there is are easy physical distinctions between military and commercial rockets as between corporate jets and fighters. It also is a lot easier to get the DoD to admit they failed to stop the spread of ICBMs now that North Korea and Iran have homemade ICBMs.

4. Not easy but it has been done before and this situation fits a well defined playbook. I don't think this case will actually be the one to cause the change but it does look like it could be the starting gun. Again, long term, I see the Dept of Justice being in favor of removing commercial rockets from ITAR. Last I looked, there were 140 companies trying to build a commercial launch service. DoJ will see that as 140 fast growing companies immune to oversight. DoJ demanding a better solution is a very powerful political force.

Just wrong in every way possible and delusional.

1.  wrong.  It is to slow the spread and keep the hard stuff from being on the street.  It has nothing to with cryogens.  Also, it doesn't matter about response time or complexity for a rogue state or organization.  Sending a warhead unannounced and preemptively does require a quick response time and hence solid or storable propellants are not needed.   The issue is guidance and targeting.  Those apply to all rockets regardless of propulsion.

2.  Fat chance.  Dream on.

3.  Not really and wrong
a.   INS systems on commercial jets are ITAR.
b.  not the DOD's responsibility.
c. they are not ICBMs, they still don't have the range,

4.  DOJ has no leverage here.  It has a no political clout. It doesn't care about the laws, it just enforces them it is told to.

[Jim]

Rather than handing over any employee information, if besides ITAR, SpaceX is bound by DOD/NASA contract requirements, why not refer DOJ to DOD/NASA general counsel?

Not their laws, but DOS.

[Pueo]

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

It looks like there's been a communications breakdown somewhere between the claimant, SpaceX, and the DOJ, because from the article: "[the claimant] is not a U.S. citizen, but according to a document filed by SpaceX in response to the DOJ subpoena he is a 'lawful permanent [U.S.] resident holding dual citizenship from Austria and Canada.' "

However if it's true that the question about legal status was only asked in the initial interview, not in the "technical phone screen", and that only a subset of applicants from the initial interview were contacted for the "technical phone screen" this looks like a difficult case for the claimant to prove.

[dondar]

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.

finally somebody who understands.
Nevertheless the "dispute" is about something else. Does anybody actually read SpaceX objections? They are actually quite clear.

The DoJ demands sound like they were written by some immigrant from latin America or Russia. The mere reasoning are extremely alien to the common practices.

[dondar]

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

It looks like there's been a communications breakdown somewhere between the claimant, SpaceX, and the DOJ, because from the article: "[the claimant] is not a U.S. citizen, but according to a document filed by SpaceX in response to the DOJ subpoena he is a 'lawful permanent [U.S.] resident holding dual citizenship from Austria and Canada.' "

However if it's true that the question about legal status was only asked in the initial interview, not in the "technical phone screen", and that only a subset of applicants from the initial interview were contacted for the "technical phone screen" this looks like a difficult case for the claimant to prove.

as it was pointed by SpaceX and is well known to anybody who ever applied to anywhere residence status, citizenship etc. are on the first page of (any) application/CV. SpaceX knew who he was and where he came from before arranging interview.