1. History

From 1963 to 1973, 128 nations received $2.5 trillion in weapons and services, the majority from the United States. Law only required that the Secretary of State report “significant” arms sales to Congress, semi-annually. In the early 1970s, legislators moved to become involved in deciding to whom arm sales could be made and under what circumstances.^[1] Concern over arms sales increased significantly in the summer of 1973, when news surfaced of a potential Nixon Administration sale of F-4 fighter-bombers to Saudi Arabia.^[2]

In 1973, Norvill Jones, a staffer of the Committee of Senate Foreign Relations, tried to interest members in establishing a procedure by which Congress could review large arms sales. Finding no takers, Jones mentioned the idea to Dr. Paula Stern, then a foreign policy aide to Senator Gaylord Nelson of Wisconsin, later the Chairwoman of the U.S. International Trade Commission (1984-1986). Nelson approved the idea and introduced an amendment for a one-house veto over significant arms sales. Stern and Nelson settled on a reporting "tripwire" of $25 million, the cost of a squadron of F-5E's. Nelson has credited Stern with conceiving the amendment and supplying the persistence needed to steer the attention of the Senate to arms sales.^[2] Nelson's proposed floor measure passed 44 to 43 in the Senate but a like House measure introduced by Representative Jonathan Bingham of New York was defeated.^[1]

In 1974, a renewed attempt passed as the Nelson-Bingham Act of 1974. It provided that when the U.S. government offered to sell any defense article or service costing $25 million or more, the President must inform both Houses of Congress of the details, giving Congress twenty days to adopt a "veto" resolution. The Nelson-Bingham initiative worked "a profound transformation in arms export policy" and had a "significant impact on U.S. government policy, both on long-range planning and on several major individual sales."^[1]

In 1975, President Gerald Ford's arms sale to Jordan led Congress to examine how to strengthen the Nelson-Bingham Amendment. A significant number of sale notifications had been allowed to be kept classified by the executive. The time period of Congressional review had been found to be deficient and the dollar level of $25 million as a tripwire had prevented a number of smaller sales from avoiding scrutiny. Members of Congress also sought to expand the scope of their review beyond government-to-government sales. The 1976 Arms Control Act incorporated these and other changes.^[3]

The scope of the act was challenged by professors and universities, who felt that restrictions placed on foreign nationals, including international students and visiting professors, were excessive. In the 1980s, Professor Bruce Lusignan of Stanford University and President C. Peter Magrath of the University of Minnesota both openly violated the arms export control act with support of their institutions.^[4]

2. Application

In the 1990s, after a report from RSA Data Security, Inc., who were in a licensing dispute with regard to use of the RSA algorithm in PGP, the Customs Service started a criminal investigation of Phil Zimmermann, for allegedly violating the Arms Export Control Act.^[5] The US Government had long regarded cryptographic software as a munition, and thus subject to arms trafficking export controls. At that time, the boundary between permitted ("low-strength") cryptography and impermissible ("high-strength") cryptography placed PGP well on the too-strong-to-export side (this boundary has since been relaxed). The investigation lasted three years, but was finally dropped without filing charges.

From FY 2004 to FY 2006 there had been 283 arrests, 198 indictments, and 166 convictions based on AECA violations.^[6]

In 2005 the Government Accounting Office (GAO) did a study on arms exports since 9/11. The study noted that the system itself had not been changed since 9/11 since the system was already designed to counter such threats. The study did report that the processing time for arms cases increased starting in 2003.^[7]

In 2006 Boeing was fined $15 million for unlicensed foreign sales involving a gyroscopic microchip or gyrochip with military applications.^[8]

In March 2007, ITT Corporation was fined for criminal violation of the act. The fines resulted from ITT's outsourcing program, in which they transferred night vision goggles and classified information about countermeasures against laser weapons, including light interference filters to engineers in Singapore, the People's Republic of China, and the United Kingdom.^[9] They were fined $100 million US dollars, although they were also given the option of spending half of that sum on research and development of new night vision technology. The United States government will assume rights to the resulting created intellectual property.^[10]

In January 2009, Congressman Dennis Kucinich sent a notice to Secretary of State, Dr. Condoleezza Rice, that Israel’s actions in Gaza since December 27, 2008 may constitute a violation of the requirements of the AECA. The AECA requires that each nation that receives a shipment of arms from the United States must certify that the weapons are used for internal security and legitimate self-defense, and that their use does not lead to an escalation of conflict. However, the AECA does not define "internal security" or "legitimate self-defense." Kucinich said that Israel's actions in Gaza killed nearly 600 and injured over 2,500, including innocent civilians and children in residential areas and civilian institutions like schools. Kucinich said that this may have violated the AECA because they didn't further Israel's internal security or legitimate self-defense, but increased the possibility of an outbreak or escalation of conflict.^[11] The charges were denied by the IDF and no action has been taken under the act.

In July 2009 John Reece Roth, a former University of Tennessee professor, was convicted of violating the AECA and sentenced to 48 months in prison. Roth had a United States Air Force (USAF) contract to develop plasma technology to reduce drag on airplane wings. One application was for unmanned air vehicles (drones). Roth was accused of violating the law by sharing technical (not classified) data with Chinese and Iranian graduate students, and of having technical data on his laptop during a trip to China. Roth and others said that the AECA, as applied in his case, would violate academic freedom and force professors to discriminate against students on the basis of nationality.^{[12][13][14][15]}