DOJ sues SpaceX for discriminating against asylees and refugees in hiring
justice.gov
justice.gov
This is perhaps pedantically, but not practically correct. ITAR restrictions, for example, prohibit foreigners from using or testing night vision equipment (even on US soil). If a team is hiring a rocket engineer, and it's a violation of ITAR for them to see technical data on SpaceX's rocket program then it's effectively impossible for a non-US person to perform in this role. Perhaps SpaceX could have phrased things differently, like "this job requires access to ITAR-controlled technical material..."
Now, as to whether or not asylees are able to access ITAR restricted material seems a bit more complicated. Searching around the internet it seems that only some asylees are able to access ITAR material: https://exportcompliancesolutions.com/blog/2018/09/20/u-s-pe...
From the link: "U.S. person means a person (as defined in §120.14 of this part) who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3)." The section cited for Protected Individuals includes refugees and asylum seekers.
Honestly, this is a pretty common mistake in the aerospace industry. Most people have only a vague understanding of ITAR and EAR, and don't realize that U.S. persons includes refugees and asylum seekers in addition to U.S. citizens and permanent residents. I have actually made the same mistake of writing a job posting that required applicants to be U.S. citizens or permanent residents, excluding refugees and asylum seekers, but HR caught it.
I don't think this is a huge scandal or anything. I suspect someone at SpaceX wrote the language for the job posting without fully understanding all the permitted categories in export control law, and that language went a long time without anyone noticing the problem. The DOJ will sue them and win (SpaceX might not even fight it) and they'll pay a fine and have the correct language. I really doubt someone at SpaceX made a deliberate decision to discriminate against refugees and asylum seekers.
Edit: I read the complaint in more detail, and it's really weird that the DOJ alleged this discrimination happened from 2018 to 2020. SpaceX was a huge company at that point and really ought to have had compliance/HR/Legal that would have caught this. So IDK, maybe there actually is more to the story.
Just a nit: there is a difference between an asylum seeker (someone who has made an application for asylum) and an asylee (someone whose application for asylum has been approved). Only the latter are US persons for ITAR purposes.
Given the long waiting times for asylum applications (multiple years), the low approval rate (~25%) and the fact that asylees can apply for permanent residence after 1 year, I would expect the number of asylees to be dramatically smaller than the number of asylum seekers.
I would expect that most people wouldn’t be too familiar with the ins and outs of “who we can hire”, and that that knowledge would often be concentrated in a compliance unit or units (likely in HR and Legal, at least) that would be primarily responsible.
I do think its a pretty big deal, though, if those compliance units aren’t doing their jobs.
It seems weird that they're suing them, and making such a big splash about it. Like you said it's doubtful they did this intentionally. I would think that some sort of out-of-court agreement would be made without going to trial.
It feels like there's political interest in prosecuting Musk companies, even if the lawsuits aren't very meritorious.
It’s clear to me that without Tesla, warts and all, very little of the current EV adoption would be happening this soon.
I think it is practically correct though, if you look at what the DOJ is specifically claiming. They are not claiming that every foreign person is exempt from export control restrictions. They are only claiming specifically that refugees and asylees are exempt, and this is what the lawsuit is about. Based on my understanding of the INA I think they're right, because refugees and asylees are generally put in the same category as permanent residents.
"To conform to U.S. Government export regulations, applicant must be a (i) U.S. citizen or national, (ii) U.S. lawful, permanent resident (aka green card holder), (iii) Refugee under 8 U.S.C. § 1157, or (iv) Asylee under 8 U.S.C. § 1158, or be eligible to obtain the required authorizations from the U.S. Department of State. Learn more about the ITAR"
They have explicitly added refugee and asylee.
That could easily be a veneer of compliance, where you're still rejecting all those similarly situated candidates, or rejecting them at comparatively higher rates, but just doing so without explicitly stating their status as the reason. That would be much harder to prove but not actually complying with the law.
Is it "only" hundreds of thousands? I would have figured it is at least tens or hundreds of millions.
Also don't forget that they have to keep up on all of the changes.
I'd find the press release much more compelling if DOJ focused on actual harm actual people suffered, and dropped the handwaving about people being discouraged by simplistically-worded job postings. Generally if you're in a narrow corner case like ITAR-eligible but not citizen or permanent resident, you know to read through simple phrasings as stand-ins for the actual requirements.
I would say it's totally fair if you're trying to discriminate based upon said regulations.
[1] https://www.theverge.com/2023/8/24/23844450/doj-spacex-lawsuit-hiring-discrimination
[2] https://twitter.com/elonmusk/status/1272973320586055682?s=20SpaceX is such a strategic advantage for the US military. If starship achieves anything close to its orbital payload cost reduction, it effectively means the US owns space and orbit.
2 - we can't really nationalize stuff, constitutionally. it's been limited to voluntary bailouts of last resort (aig, amtrak) which i think we should stop
The fact that SpaceX deals in ITAR does not prevent them from hiring refugees for roles that do not handle ITAR.
Given that, it makes a lot of sense for them to simply require ITAR compliance in all roles.
Is it a pain? Yes. But honestly other than HR tracking ITAR/non-ITAR people it's things everyone does already. You have physical access controls to keep people out of areas that don't need to be in them, and you use digital access controls for the same in your data systems today. So one extra group has to track one extra flag (ITAR/non-ITAR) and otherwise everything works as it already works.
Refugees and asylees are explicitly US persons, not foreign persons, under ITAR, so the implied legal premise of the question is false.
I think you're avoiding the question posed by GP, to be honest.
They decided to become an aerospace engineering firm in the US. ITAR security is part of the cost of doing business.
If the typical e.g. janitor or cafeteria worker at SpaceX has access to ITAR, as SpaceX seem to have alleged before they got caught, then their ITAR security is pure theater.
Why? And why the smarmy elitist discrimination and condescension towards janitors or cafeteria workers? Why would they not be an important part of an organization, professionals capable of getting background checks, appropriate training, and being trusted to keep their mouths shut too?
>https://www.flir.com/products/flir-one-gen-3/
>"The information contained in this page pertains to products that may be subject to the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Sections 120-130) or the Export Administration Regulations (EAR) (15 C.F.R. Sections 730-774)"
ITAR covers a massive array of information and tech available off the shelf. SpaceX definitely will be segmenting heavily stuff specifically for the DOD, but their basic rocketry isn't some classified military project. At most they have useful trade secrets they want to protect but even that probably isn't that critical. They rightfully care about having a good, open, fast startup-like development culture for the rocket work, with animated cooler discussions and napkins being scribbled on during lunch.
This is where I think the disconnect. ITAR includes many things much more mundane than cutting edge spacecraft prototypes. It’s still ITAR whether it’s strapped onto a prototype for the first time or on its 800th flight in production.
It's kind of a joke that if they don't have locks I would play with the prototypes. Just because that's what I would seek out. But yes, ITAR can cover the boring and probably mundane as well.
To amplify this: so is compliance with non-discrimination law, and, to the extent the two interact, the cost created by the interaction.
That’s definitely an argument Tesla might want to make to Congress and the State Department (as the relevant regulatory authority for ITAR) as to what the law and regulation should be.
“We think a different policy than that embodied in the current law would be better policy” is less useful as an argument to escape the legal consequences of violating the existing law.
I'm guessing you meant to say SpaceX and not Tesla.
From what I know about pentesting, they usually have the most physical access regardless.
>The fact that SpaceX deals in ITAR does not prevent them from hiring refugees for roles that do not handle ITAR.
This is way too casual a statement. At a company like that there won't necessarily be anything that doesn't potentially involve ITAR short of serious company reorganization, which is serious-business regulation and actively enforced. To take a simplistic example, even janitors might potentially have access to ITAR controlled materials if engineers threw them out into a bin bound for a shredder/incinerator and janitorial staff are trained and trusted parts of the disposal chain (which they should be!). Anyone might be able to overhear water cooler conversations. Etc.
At this point SpaceX might have some roles that can be segmented safely, completely firewalled from the rest of the organization. Tier 1 Starlink customer support perhaps. But it's not trivial when dealing with serious restricted tech to just say "oh these roles do not handle ITAR", because it's not about handling. Read "§ 120.56 Release" [1]:
(a) Release. Technical data is released through:
(1) Visual or other inspection by foreign persons of a defense article that reveals technical data to a foreign person;
(2) Oral or written exchanges with foreign persons of technical data in the United States or abroad;
(3) The use of access information to cause or enable a foreign person, including yourself, to access, view, or possess unencrypted technical data; or
(4) The use of access information to cause technical data outside of the United States to be in unencrypted form.
So yes, if SpaceX incorrectly excluded a group of people not covered by ITAR, they screwed up and will likely face some sort of fines/consent decree. But that doesn't mean it's trivial to then go and hire people who are covered by ITAR.
----
0: https://www.law.cornell.edu/cfr/text/22/120.62
1: https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M...
As I mention elsewhere in this thread, if this is really how SpaceX operates then they’re already in (ethical, if not legal) violation of their duty to protect ITAR from dissemination. ITAR documents should never just be sitting in an unsealed bin waiting for disposal. Employees shouldn’t casually be discussing ITAR around the water cooler.
Assuming everyone around you is permitted to handle ITAR is a recipe for disaster.
This is exactly it, that may be the source of their posts? Being covered by ITAR has nothing to do with whether an American could just go mail order it online let alone chat about it. As a regular American civilian with zero government clearance of any kind, I own a bunch of ITAR controlled stuff. As a category it covers a pretty wide array of technology even when it doesn't seem to be in any way particularly sensitive. All of my suppressors for example are subject to export control, or NVG or FLIRs even when it's ancient tech everyone in the world has. Apparently so can things like optics. It wasn't that long ago that the US government tried to insist that mere encryption was a munition subject to controls!
Edit: seems like the DOJ is claiming that that is not the case. Weird…so this is basically going to boil down to each side arguing their interpretation of a regulation.
Can’t say this doesn’t smell just a little political.
The President of the United States very publicly called for Musk and his companies to be investigated back in November of ‘22. Ironically, this was because of supposed relationships with other countries.
https://www.reuters.com/technology/biden-says-elon-musks-rel...
So he deserves investigation due to foreign business relationships, then gets sued for not hiring (edge-case) foreigners to build state of the art rocket technology. Cue the Curb Your Enthusiasm theme song.
It is possible that the roles identified by the DOJ are not under these restriction.
That said, how is this going to be resolved with the compliance requirements
Seems like it’s going to boil down to “we interpreted the regulation wrong, oopsies”.
A “foreign person” is defined in ITAR (22 CFR Sec. 120.63), by reference to two sections of immigration law in Title 8 of the US Code, as someone who is none of the following: a US citizen, a lawful permanent resident, an asylee or refugee, a person lawfully admitted for permanent residency (I haven’t done the analysis to see if this is distinct from “lawful permanent resident” or if its overlap with different language between the categories referenced from different parts of Title 8 of the US Code), a person lawfully admitted for certain classes of temporary residency.
Regardless, the ITAR issue is secondary; they hire for roles that do not touch ITAR.
I dunno, if the people they are discriminating against are “US persons” and not “foreign persons” under ITAR, then the whole ITAR argument for discrimination, whether its direct coverage or some kind of indirect risk creating something that Tesla wants to try to argue is a bona fide occupational qualification justifying discrimination, is cut off at the root.
If the refugee has a new citizenship in their host nation, then in what sense are they still a refugee?
I thought gp was alluding to something within the last few days.
There is also an active question of if the discrimination is still happening, in which case the governments goal is to prevent compliance only in the job listings.
Legal disputes often center on disputes on the meaning of law (including regulations.)
That's…not weird at all.
> Can’t say this doesn’t smell just a little political.
Yes, government actions often smell just a little “of or relating to government, a government, or the conduct of government”.
[1] https://www.nytimes.com/2023/08/18/us/politics/cyberattacks-...
[2] https://www.dni.gov/files/NCSC/documents/SafeguardingOurFutu...
Like, do you really want to start papering over all your conference room doors so nobody can snap a photo of schematics while they walk by? Constantly police which Slack channels they are in? Make sure they can't look at a coworker's monitor?
Security against espionage is a defense-in-depth design, in the real world you can't just say "oh we have a single barrier — they won't be on Top Secret projects. problem solved."
Yes. Have separate buildings, separate Slack instances (don't use clouds if you don't want information smeared across the world), badge access, etc... it's difficult sure but don't tell me our poor military industrial complex can't afford it.
Like, are you saying the people writing blog posts, the legal team, even certain engineering specialties, are not allowed to ever interact with the engineers working on satellite encryption?
I know that SpaceX has many government contracts, but you seem to be construing the company as some sort of public institution.
Sir, this is a SpaceX
Using civilians as sleeper agents, and using our own policies against us as cover-- it's the perfect espionage program.
Is there a point at which money would exchange hands before a formal suit is filed? If so, that is the stage I am surprised this didn't progress past.
The government, on the other hand, wants the publicity of having filed the suit to deter other companies from doing the same thing. I don't believe they frequently settle before filing a formal suit.
For a purely monetary resolution to avoid a lawsuit, yes, but in regulatory cases rather than disputes between private parties where such an outcome is often preferred to a lawsuit occurring, the government will often not be interested in such an outcome, and will instead prefer a consent decree with behavioral restrictions that have strong legal consequences. These have to have an actual active case, as they are are court orders to which both parties stipulate, not private agreements. (“Settlement” can cover either type of resolution.)
Let’s not normalize this as common occurrence.
There is absolutely zero reason to sue SpaceX except for political hitpoints.
This:
> Because SpaceX works with certain goods, software, technology and technical data (referred to here as export-controlled items), SpaceX must comply with export control laws and regulations, including the International Traffic in Arms Regulations and the Export Administration Regulations. Under these regulations, asylees, refugees, lawful permanent residents, U.S. citizens and U.S. nationals working at U.S. companies can access export-controlled items without authorization from the U.S. government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than U.S. citizens or green card holders. Find more information here on how employers can avoid discrimination when complying with export control requirements.
Seems to be the issue.
But why would it be against the law for a US company to discriminate against someone without valid immigration status? I assume the issue here is a refugee has some authorization for lawful employment and SpaceX still doesn't want to hire them wholesale, hence the suit.
IMHO the United States' convoluted immigration and refugee policy is to blame. Why not triage everyone to being "legal permanent resident" and remove the distinction between refugee/asylee and other types of lawful residents? I'd need to read more but ultimately they're a lawful resident or not. What's the point of considering them a "refugee" if they're entitled to the same benefits as a lawful resident anyway? Either we trust them enough to be in this country and therefore be entitled to the benefits that entails, or not.
https://www.eeoc.gov/national-origin-discrimination
The Civil Rights Act also prohibits discrimination on national origin.
Obviously the CRA does not mean you have to hire blind people to be truck drivers. You do have to provide reasonable accommodation for jobs they can do. If you circumvent the reasonable accommodation requirement by eg barring people by immigration status for jobs where it is irrelevant, you're breaking the law.
Both asylum and refugee status are valid immigration statuses. Why do you assert that they aren’t?
But if they can't do all the same things, why not just only hire permanent residents? As an employer, especially SpaceX the intersection between the job responsibilities and capabilities creates unnecessary confusion. If you hire them to do X, which sometimes requires access to Y, but Y isn't something refugees are supposed to do, is it a shock they'd rather just hire people who can do everything?
It's a problem the state created for themselves. Suppose SpaceX took the other position and treated them equivalently. Then they'd be getting sued about how refugees are doing {some thing they're not supposed to} and how they should've conducted more due diligence.
in any case it seems like SpaceX err'd in the wholesale discouragement of refugees from applying. it didn't seem specific to role or responsibilities.
I'm sure you can think of a few reasons if you consider it.
> If you are a refugee, you are required by law to apply for permanent resident status 1 year after being admitted to the United States in refugee status. If you are an asylee, you are not required to apply for permanent resident status after being granted asylum for 1 year.
The real problem was that his parents and most of his family had obtained the green card by that point, and for whatever reason there were delays in processing him. So only he would be forced to return.
You can tell they're really hanging their hat on the first one, though: even if you say for simplicity you want to have only "US persons" under ITAR, that doesn't justify excluding asylees and refugees.
Among the evidence in the filing is, of course, an Elon Musk tweet, saying you need at least a green card to work at SpaceX.
Also, the numbers: over the course of about four years SpaceX hired exactly one asylee, and that one shortly after they were told they were under investigation.
All said, I can understand the mistake in terms of interpretation of the regulation.
Part of the complaint is also that they publicly stated that you need citizenship or a green card many times over the years, so there were probably people improperly deterred from applying at all.
- Microsoft
- Aero Precision
- Technology Hub
- KForce Tech
- Giant Food
- etc.
If there's a political angle here, I'm more inclined to believe that Democrat-lead exec branches lead to more employment discrimination enforcement thatn Republican-lead ones.
To heck with truth and justice, let's tar and feather the Muskerino man!
- Ongoing disagreement between SpaceX and DOJ regarding applicable law?
- SpaceX HR misunderstanding, at the time, the applicable law? (I can see how this category of applicants might be rare enough that HR people fail to account for them.)
- SpaceX HR policy lining up with DOJ's view, but hiring managers choosing candidates with a suspicious statistical distribution?
Kinda like the labor people going after Starbucks with a vengeance after years of nothing under Trump.
I ask because a lot of these people come from countries that are highly conservative in nature and culture.
Even the people who can't vote lean that way: https://www.pewresearch.org/short-reads/2013/07/22/are-unaut...
Even if they can't vote, some of their family members can, and their kids and their friends will be able to. There's a reason major cities are often blue (largely linked to their history of immigration), and across generations, these loyalties can build up. (Also, the Democrats largely gave up on the rural areas as a matter of political strategy, but that's a separate story).
Asylees and refugees on the other hand... I can entirely believe that, but I guess we won't see the bigger picture of that (vs large-scale immigration from Central/South America) for a while.
As an aside, when you think of selecting a vacation destination in a foreign country, do you prefer to go to rural areas where you risk negative attention based on where you were born?
Would you do the same when selecting somewhere to live?
I think the knowledge of this strategy's existence grew, but the strategy itself has been the same for a long time.
Citation needed, this has not been true of most blue cities I have lived in
Stats that they run blue:
Voters... https://www.pewresearch.org/religion/religious-landscape-stu...
Officials... https://ballotpedia.org/Party_affiliation_of_the_mayors_of_t...
Some analyses about the why:
https://www.theatlantic.com/ideas/archive/2019/09/brief-hist...
https://www.niskanencenter.org/explaining-the-urban-rural-po...
https://www.washingtonpost.com/politics/2019/03/05/why-are-u...
https://www.bloomberg.com/news/articles/2013-02-19/what-is-i...
It goes back to early generation of European working-class industrial immigrants, then continued with techy Asians and Indians (who were often Democratic not for economics but because the Republicans got more and more nationalist). These days the Hispanic vote (which is a lot of the "immigrants" group) still leans blue, even though they don't necessarily swing culturally as left as the white young Democrats.
Reading some of these articles, here is what I disagree about your characterization:
For almost all of the east coast/midwest cities I have lived in, the Black "great northern migration" was a much larger factor in the Democratization of cities than foreign immigrant populations.
I agree that, especially in the northeast, where democrats started to take hold were communities that were distinct from the traditional anglo-protestant axis (particularly Irish catholics), but by the time this really accelerated and became an urban trend in the early to mid to even late 20th century (urban = democrat emerged most strongly in the 80s and 90s as your articles identify), most of these populations were already multi-generational American households, not new immigrants. Sure they had not been there since the Mayflower, but plenty had been there since the 19th century. What united these disparate groups was an attraction to industrial policy, less so some immigrant axis.
Your article #3 is not about the US but rather Europe, your articles #2 and #4 (especially #4) explicitly disagree with you about immigration being the driving factor, and your first article indicates that it has more to do with industrial policy than immigration.
Re #1 (the Atlantic), these passages capture most of my thoughts. And the other two articles touch on similar themes.
----------------------
> There is no obvious reason why a 19th-century movement led by Irish Catholic noneducated factory workers should become a 21st-century party for college grads, nonwhite voters, and software developers that defends gay rights, women’s rights, and legalized abortion. But it makes sense if you understand the Democratic Party through the lens of the modern city. Starting in the 1970s through today, Democrats and Republicans have been compelled to take sides on issues that hadn’t previously been politicized. And they have routinely sorted themselves along urban-rural lines, creating a pattern where there was once merely a tendency.
[...]
> As the writer and researcher Will Wilkinson argues, cities are magnets for individuals who score highly on “openness”—the Big Five personality trait that comprises curiosity, love of diversity, and open-mindedness.
[...]
> Urban residents trade cars for public transit, live in neighborhoods with local trash codes, and deal with planning commissions about shadows, ocean views, and parking rights. City residents are natural “externality pessimists,” to use Steve Randy Waldman’s clever phrase, who are exquisitely sensitive to the consequences of individual behavior in a dense place where one man’s action is another man’s nuisance. As a result, residents of dense cities tend to reject libertarianism as unacceptable chaos and instead agitate for wiser governance related to health care, housing policy, and climate change.
----------------------
I understand what you're saying, and it makes sense -- that (foreign) immigration was not the decisive factor of cities becoming more Democratic. I stand corrected. That's not just a technicality, it's a substantial correction. Thank you.
However, I do want to make the case that MIGRATION in general (of people, classes, workers, etc., both foreign but especially domestic, as you pointed out) shapes cultures in a way that ultimately helped further the urban-rural divide. Whether it's seeing other ethnicities, religions, cultures, education levels, or just economic classes and job types, the sheer density of city living forces people to learn to live together. Granted, it's not always easy easy, per the article's quote, "one man’s action is another man’s nuisance". But it happens.
And all these factored played together, weakly at first, and then more and more through the decades as party leadership polarized themselves to form stronger and stronger tribal identities... broadly, the Democrats taking the dense urbanites who favored openness (to cultures, religions, immigrants, etc.), protection through regulation, and education vs the Republicans who valued tradition, freedom (from other people and the central government, especially), and hard work that doesn't require higher education.
I don't think it has to have played out this way if not for the two-sided winner-take-all politics we have. But because we only had those two choices (for many decades), all those forces/themes from immigration to industrial policy virtuously/viciously reinforced each other. But I do stand corrected... foreign immigration was not the major input to those changes. Thank you for taking the time to really think through and discuss this!
What's interesting is that one of the articles linked indicates that this Democratic shift has been substantial even among people who have generationally been in the same city for a long time. I don't think this really undercuts migration as a massive effect, but indicates the impact of your neighbors as well as perhaps some realignment of the Democrats towards industrial policy that benefited people in the cities.
> Thanks for taking the time to thoroughly read these (and in more detail than I did!
Quickly skimming articles to see if they hold up is a skill learned from years of highschool debate, only a minute or two to prepare to respond to your opponents arguments
Likewise thanks for the discussion :)
We don’t check IDs to do the most basic thing that holds democracy together. The rest of the world requires ID to vote.
Most migrants from Central/South America will already be somewhat familiar with US culture due to geographic proximity, and often will have family and friends here who can help assimilate/absorb them into both local/municipal cultures and the broader US political landscape.
Refugees and asylees don't necessarily have that, especially if they are coming from a non-democratic and non-Western culture.
I would love to see data on this.
And, pragmatically, this is how you want to do it. Get your favors in early enough in the election cycle that no one remembers when the actual election rolls around. Comply, but not enough to actually succeed.
If this does not work, perhaps the IRS next up to bat?
And it's a very thin tin-foil hat I'm wearing given that the Biden Administration was literally telling the tech companies who to censor, up until the courts ruled they could not do that: https://www.usatoday.com/story/tech/news/2023/07/04/judge-bl...
"Moreover, asylees’ and refugees’ permission to live and work in the United States does not expire, and they stand on equal footing with U.S. citizens and lawful permanent residents under export control laws. Under these laws, companies like SpaceX can hire asylees and refugees for the same positions they would hire U.S. citizens and lawful permanent residents. And once hired, asylees and refugees can access export-controlled information and materials without additional government approval, just like U.S. citizens and lawful permanent residents."
We have lost where the north star is. My steel man argument is that Democrats are doing this for votes.
You'd think a rocket company of all places would know there's clearly precedence of non-citizens contributing to the US development of spaceflight.
https://en.wikipedia.org/wiki/Wernher_von_Braun#American_car...
https://en.wikipedia.org/wiki/List_of_German_rocket_scientis...
U.S. export control law is intended to prevent technologies that have military significance from spreading beyond the U.S. There are two relevant regimes: Export Administration Regulations (EAR), administered by the Department of Commerce, and International Traffic in Arms regulation (ITAR), which is administered by the Department of State. ITAR regulates weapons and weapon-adjacent technologies, EAR regulates a much larger set of technologies with military significance.
The provision of these export control laws that's relevant here is that U.S. companies can only allow "U.S. Persons" to access export-controlled technology. A "U.S. Person" is a technical term that currently includes four categories: U.S. Citizens, U.S. permanent residents (green card holders), asylum seekers, and refugees. Anyone not in these categories can only access export-controlled technology with a waiver.
SpaceX, like many aerospace companies, deals with ITAR-regulated technology. (A rocket is the same thing as a missile, except for the bomb on the end). So, they hire only U.S. Persons. This is legal and quite common in the aerospace industry. It sucks for international engineers (there are so many amazing Iranian RF engineers ugh), but it's much easier to not need internal ITAR controls.
The DOJ is alleging that SpaceX hired only the first two types of U.S. persons, and excluded asylum seekers and refugees, even though they're treated identically by export control law. Which, honestly, is a really common misunderstanding in the industry (and in these comments too). People have a sense of "ITAR is strict" and think that only U.S. citizens are allowed, and they forget about the other three categories. SpaceX is definitely wrong - they unlawfully discriminated against candidates based on national origin and citizenship. The DOJ is definitely right, and I have to assume SpaceX will settle rather than contesting the suit.
It is possible that SpaceX deliberately discriminated against refugees and asylum seekers. But I suspect what happened is that they misunderstood export control law early on in the company's history, and their HR/Legal for whatever reason did not correct the wrong claims about export control law. (Though it is odd that the DOJ alleges discrimination in 2018-2020, SpaceX was a huge company at that point and should have clearly understood export control law).
Source: A lot of export control briefings during onboarding at companies, hiring engineers for EAR-controlled roles. I also made that mistake myself by writing a posting that specified only U.S. citizens or permanent residents, though in my case HR caught it and corrected it.
Does anybody know how such penalties are calculated? In "role-based damages," penalties would be limited to the total wages for the hiring reqs in question. This corresponds to the counterfactual where each of the roles would have been gone to an asylee. But I could also see the DOJ arguing that every "deterred" asylee is owed foregone wages. This "applicant-based damages" doesn't correspond to any serious counterfactual, but it has the virtue of being a much bigger number.
Before posting any opinion on this, please go learn about ITAR.
Companies like SpaceX exist under this umbrella. I have worked under ITAR rules for many years. I've had to go fix ITAR violation disasters at some of these companies. If you have never sat in a conference room with a bunch of lawyers to discuss degrees of exposure and how to repair the damage done by unqualified employees, you likely don't have enough context to voice a valid opinion about any of this.
My take: This is a stunt to squeeze Musk where it hurts. Politics at its worst.
Typical internet. HN isn't immune. Some of us actually live the reality of what is being discussed, others think that a google search makes them experts. It's like people making categorical statements about business when they never ran anything even close to a non-trivial business.
This is pretty standard stuff. Next they'll pay a fine based on the outcome of the DOJs filing here, because they were not in compliance previously.
It's kind of terrifying to see so folks jump to conclusions like this.
Your comment is ill informed. My comment has nothing whatsoever to do with what you just said.
I think it's completely fine for a company that regularly deals with classified or ITAR material to require _all_ employees of an organization meet that requirement.
The government is like "Don't leak our / ITAR secrets, but we're forcing you to hire people that could potentially do so".
What a waste of time. There are bigger fish to fry.
SpaceX: Okay, will be extra careful
Also US Government: How dare you be too careful!
(probably) SpaceX: WTF
US Government: You have to careful about potentially leaking export controlled material, or your employees will be held personally responsible and go to jail. Also, you have to comply with non-discrimination law while doing that.
SpaceX: Okay, so we’ll ignore non-discrimination law and excuse it as “being careful about potentially leaking export controlled material”.
US Government: WTF?
More importantly, from a national security perspective, it doesn't make sense to exempt every refugee and asylee from ITAR restrictions. The benefit is negligible to the typical refugee and the risk is immense.
Justifying workplace discrimination on a generally prohibited bases on the basis of “well, if the government regulations that we are relying on to justify our discrimination were revised in a way that we feel makes better policy sense, they would require the discrimination we are doing, even though they explicitly do not as currently written” is…probably not an argument that will succeed in any US court.
My primary concern isn't "succeeding in any US court". I'm not involved with SpaceX or the job applicants who were passed over. My concern is much more around the use of tax revenues, the overall security of the country and the stability of the world order. There are a multitude of cases the DOJ could be taking on right now. That this is what they choose to litigate is a clear warning sign.
Show me the same data on hiring asylees at Google side by side and I'll believe them.
I'm sure large numbers of engineers from all over the world have browsed their job listings in the past to see that they're automatically excluded because they're not US citizens, and that's not led to any trouble, or at least no newsworthy trouble.