OPINION AND ORDER This litigation was prompted by a proposed, but never enacted, regulatory amendment; even today, years into the litigation, the parties’ disputes occasionally tilt toward the speculative or the hoped-for, rather than the actual. At base, the suit concerns First and Fifth Amendment facial challenges to the International Traffic in Arms Regulations (the “ITAR”), 22 C.F.R. parts 120-130, which is the regulatory regime that implements the Arms Export Control Act of 1976 (the “AECA”), 22 U.S.C. ch. 39. Among other things, the ITAR imposes strict licensing requirements on exporting technical data related to “defense articles,” such as blueprints for tanks and nuclear weapons. Plaintiff, a law firm that advises clients and publishes free educational materials on export control matters, seeks to disseminate certain technical data via public presentations within the United States and on its public website. It argues that the ITAR in its current form imposes an unconstitutional prior restraint on Plaintiff’s anticipated expressive activities and is as well unconstitutionally overbroad and vague.After a failed application for injunctive relief and an appeal of same, the matter returned to this Court in 2018, and the parties cross-moved for summary judgment. This Court does not accept either side’s arguments in toto, but after evaluating the unambiguous text of the ITAR, as opposed to the parties’ glosses thereon, it cannot discern the constitutional infirmities identified by Plaintiff. Accordingly, and for the reasons stated in this Opinion, Plaintiff’s motion for summary judgment is denied, and Defendants’ motion for summary judgment is granted.BACKGROUND1A. Factual Background1. The International Traffic in Arms RegulationsThe AECA restricts the import and export of “defense articles and defense services,” including such articles as tanks and nuclear weapons. See 22 U.S.C. §2751. To enforce the AECA, the United States Department of State (the “Department”) promulgated the ITAR regulatory regime in 1976. See 22 U.S.C. §2778(b)(2); 22 C.F.R. parts 120-130. The ITAR defines “defense service” to include the “furnishing to foreign persons of any technical data controlled under this subchapter[.]” 22 C.F.R. §120.9(a)(2). And in keeping with its animating purposes, the ITAR requires a license to export “ technical data” that is “required for the design, development, production…or modification of defense articles,” including “blueprints, drawings, photographs, plans, instructions or documentation.” 22 C.F.R. §120.10(a)(1).The ITAR’s technical data licensing requirement excludes, among other categories, “information in the public domain.” 22 C.F.R. §120.10(b). “Public domain,” in turn, is defined as follows:Public domain means information which is published and which is generally accessible or available to the public:(1) Through sales at newsstands and bookstores;(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;(3) Through second class mailing privileges granted by the U.S. Government;(4) At libraries open to the public or from which the public can obtain documents;(5) Through patents available at any patent office;(6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also §125.4(b)(13) of this subchapter);(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community[.]22 C.F.R. §120.11(a). The parties agree generally that information available from one of these public domain sources is excluded from the ITAR’s licensing requirements. (See, e.g., Def. Br. 7, 9 n.4 (“[I]nformation that is already in the public domain, through various means, is not treated as ITAR-controlled.”)).On June 3, 2015, the Department issued a notice of proposed rulemaking that would have amended the definition of public domain to state that “technical data…is not in the public domain if it has been made available to the public without authorization.” 80 Fed. Reg. 31,525, 31,535 (emphasis added). The preamble to the proposed revision states:Paragraph (b) of the revised definition explicitly sets forth the Department’s requirement of authorization to release information into the ”public domain.” Prior to making available ”technical data” or software subject to the ITAR, the U.S. government must approve the release….The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR’s requirement that one must seek and receive a license or other authorization from the Department or other cognizant U.S. government authority to release ITAR controlled “technical data,” as defined in §120.10. A release of “technical data” may occur by disseminating “technical data” at a public conference or trade show, publishing “technical data” in a book or journal article, or posting “technical data” to the Internet. This proposed provision will enhance compliance with the ITAR by clarifying that “technical data” may not be made available to the public without authorization. Persons who intend to discuss “technical data” at a conference or trade show, or to publish it, must ensure that they obtain the appropriate authorization.Id. at 31,528 (emphasis added). To date, however, this amendment has not been promulgated.Several other developments concerning the ITAR merit mention. On May 24, 2013, the Department posted a notice in the Federal Register responding to comments seeking clarification of the current definition of “defense service,” which notice stated in relevant part:Five commenting parties recommended ITAR §120.9(a)(4) be revised to clarify that an aggregation of public domain data is still public domain data, and two commenting parties requested clarification that the aggregation of public domain data cannot be considered a defense service or render the data “other than public domain.” The Department confirms that a defense service involves technical data and therefore the use of publicly available information would not constitute a defense service according to the new ITAR §120.9(b)(2). The Department notes, however, that it is seldom the case that a party can aggregate public domain data for purposes of application to a defense article without using proprietary information or creating a data set that itself is not in the public domain.78 Fed. Reg. 31,444, 31,445. On June 3, 2015, the Department further clarified that a “release of ‘technical data’ may occur by…posting ‘technical data’ to the Internet.” 80 Fed. Reg. 31,525, 31,528. And on June 3, 2016, the Department updated the ITAR’s definition of “export” to include “releasing or otherwise transferring technical data to a foreign person in the United States (a ‘deemed export’).” 22 C.F.R. §120.17(a)(2).2. The Information Plaintiff Seeks to Use and DisseminatePlaintiff “is a law firm that advises clients on export control matters…[and] publishes free educational information to the public on export control matters.” (FAC 5). Plaintiff has announced plans to develop “presentation and written materials” using “published and generally accessible public information that is available from bookstores and libraries, and for which foreign persons already have access to. This information would have otherwise constituted technical data but is excluded from the technical data provisions because it is in the public domain.” (Id. at
