Government abuse

Matthew Petti | From the November 2024 issue

Oleg Tishchenko logged onto the Digital Combat Simulator fan forum in 2011 and posted an innocuous request: "Help needed with eBay item shipping." Tishchenko was the lead avionics programmer for Eagle Dynamics, which produces the simulation game, and he had found an old F-16 fighter jet flight manual for sale. But the seller wasn't shipping outside of the United States, so Tishchenko needed someone to pick up the book and mail it to Russia.

It made sense. Tishchenko's job at Eagle Dynamics was "to make a picture that looks like what you'd see in real life," he told the Russian opposition magazine Meduza. "If a certain device displays velocity in real life, it should display velocity in our games too." He had ordered dozens of flight manuals before without any problem, but a few forum users warned Tishchenko the book might be covered by U.S. weapons laws.

"I thought they were being overly cautious, that it was some kind of super law-abiding American thing," he later told Meduza. "I knew it wasn't just eBay where these things were being sold. There are websites selling the same exact manuals that just keep on going without a problem."

The post, however, had caught some unwanted attention. Tishchenko's eBay account was banned. An undercover agent approached him online, asking Tishchenko to meet outside Russia to buy more fighter jet manuals. When Tishchenko applied for a visa to visit Germany, an official at the German consulate told him he couldn't enter Europe due to a weapons-smuggling investigation.

In summer 2018, when Tishchenko was at a concert in the Republic of Georgia, a group of Georgian police burst in and pulled him away from the woman he was dancing with. He was arrested and handed to a pair of U.S. Marshals at the airport in Tbilisi. Tishchenko pleaded guilty to Arms Export Control Act violations and was sentenced to time served. The U.S. government, which had gone through all the trouble of taking Tishchenko in, flew him back to Russia a few months later.

Sharing weapon manuals illegally has become something of a running joke among video game fans ever since. Players of War Thunder, a Hungarian competitor to Digital Combat Simulator, have taken to posting military documents on the fan forum every few months. No doubt wary of facing the same fate as Tishchenko, War Thunder founder Anton Yudintsev went to The Washington Post in 2022 to beg fans to knock it off.

For the most part, user manuals shouldn't be seen as legally sensitive. They're not blueprints for manufacturing weapons; they are merely guides for using them, meant for ordinary troops to read. Neither the book that Tishchenko bought nor most of the PDFs being posted to the War Thunder forum are classified; any American can own one of these manuals, legally.

Despite all that, weapons manuals are considered "munitions" under the International Traffic in Arms Regulations (ITAR) set by the U.S. State Department. Thus, "exporting" one or even showing it to a foreigner is legally equivalent to exporting a bomb. And the federal government's overly capacious vision of information as ammunition goes far beyond fighter jet manuals.

Until the late 1990s, encryption algorithms were also on the U.S. Munitions List, making it illegal for foreigners to download certain American-made web browsers.

Beyond ITAR, the U.S. Commerce Department's Export Administration Regulations (EAR) strictly control "dual-use" technologies that could be used in war or weapons manufacturing. Space satellites, carbon fiber materials, underwater rebreathers, high-end night-vision goggles, lasers, supercomputers, and even certain types of medical equipment are all covered by these regulations. In some cases, people who clearly had no intent of doing anything of a military nature with certain objects have been treated by the U.S. government as potential weapons smugglers.

Earlier this year, the U.S. government announced it would tighten its enforcement of these rules even further. "There are going to have to be some penalties that get everyone's attention," Matthew Axelrod, assistant secretary for export control at the Department of Commerce, told a group of law students in January 2024, according to Reuters. "I think we're on the cusp of that." He cited a $300 million fine against California electronics company Seagate Technology for selling hard drives to Chinese telecom giant Huawei.

Arms export laws might seem in theory a sensible use of government power. The weapons industry is not really a free market, since all the customers are other governments or governmentlike forces. And private companies in the U.S. probably shouldn't be arming potential foreign aggressors, let alone wartime enemies.

The U.S. arms control system, however, has grown into something quite different from a ban on gunrunning. Since the Cold War, these export control laws have been used as a tool for slowing down the development of peacetime competitors. For example, the Department of Commerce has been tightening the rules on exporting semiconductors to China for any purpose, claiming that artificial intelligence could be used by the Chinese military.

These restrictions have done a lot of collateral........

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