Originally published at: DOJ sues SpaceX over discriminatory hiring practices, Musk's tweets are evidence | Boing Boing
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I guess it’s kind of nice to hear that there is at least one group of people out there who still get something of value from Twitter/X: Federal prosecutors.
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I might be missing something, but I’m pretty sure US permanent residency is in fact a relevant qualification for companies that deal with ITAR controlled items. Even for people who don’t directly work on ITAR items, it can be useful, because you don’t have to worry about who can overhear you while discussing ITAR items. If someone who isn’t a US citizen or permanent resident overhears discussion of ITAR items, that is a “export” of the ITAR item to whatever countries that someone is a citizen or permanent resident of, and is a strict liability crime. The strict liability of the crime makes it really important that you avoid accidents. Intent doesn’t matter.
If you’re wondering, SpaceX actually employs Baristas and Cooks and Dishwashers for their internal customers to get food and coffee, and it’s good for their engineers et al to be able to just talk about work while having lunch. And knowing something about SpaceX, breakfast and dinner as well.
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I call bullshit. There are countless people working in the aerospace industry in general and SpaceX in particular who don’t have security clearances.
TL;DR for above article:
It is not necessary to obtain a security clearance in order to work in the aerospace industry, and only a few technical issues will require one.
Yes, you are.
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It’s illegal to discriminate against otherwise qualified employees because they are legal immigrants and asylum seekers instead of US permanent residents. That’s why Elon is in trouble.
Yes, it’s legal to discount applicants who couldn’t obtain security clearance if you’re hiring for a specific position that requires a security clearance. Your example of “what if the barista overhears something?” is not a legal justification for barring non-permanent-residents from a job that doesn’t require a security clearance.
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I guess every barista and custodian on Capitol Hill or in Langley must be a US permanent resident then?
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It’s not “what if” it’s “when”. ITAR is strict liability. If SpaceX had non-ITAR business, then they could very well hire for that side of the house without needing to worry about citizenship status. But they don’t have non-ITAR lines of business. US permanent residency is a valid qualification for anything to do with ITAR. To say that immigrants and asylum seekers are qualified is to deny the reality of ITAR law.
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Afaik the most common source of espionage in business is not an immigrant barista who maybe heard a rumor while foaming a latte. The most common source of espionage is any disgruntled employee with access to valuable information.
And most baristas and janitors are actually working for subcontractors. If you have a job with a lot of sensitive info your training should have made it clear you don’t talk about that in common areas… Ever.
Like if they are socializing employees to talk about whatever wherever because “no immigrants” then they are creating false confidence and a low security environment.
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I don’t know if this applies or not to SpaceX’s situation, because , well, I don’t know their exact work.
But I do know full well that there are strict rules about non-citizens and non permanant residents even being in the room where work goes on. I know this from a previous job where I was a software engineering consultant, and we were working on non-defense projects for a company that also was a defense contractor, and they made us certify we had lockable doors and non-open floor plan offices, as well as promised to fire immediately any one they asked us to if they walked into “controlled areas.”
We weren’t even working on defense contracts, but we had to obey those rules because the federal government required it for even companies that work with defense contractors. They also made us get rid of our unconscious bias training and DEI training because that was also a ground for revoking defense contracts.
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Where I work we have a lot of ITAR work. We also have many employees who are non-citizens / permanent residents.
We use a simple badge system to tell who is who and their respective clearances. Employees receive training on identifying cleared persons and are expected to conduct their sensitive work while being cognizent of who is around. We have labs with badge access so as to only allow cleared persons into authorized areas.
Certainly there are persons who cannot be cleared to certain areas, whether because of citizenship status or some other reason, but there is no policy forbidding non-citizens from obtaining employment.
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the justice department and its lawyers obviously disagree
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Nonsense.
As explicitly stated in the article I linked above SpaceX hires for all kinds of positions that don’t require any kind of security clearance. There’s no such thing as a job that isn’t sensitive enough to require a security clearance but is sensitive enough to exclude immigrants and refugees.
Was the system designed and implemented specifically to keep out immigrants and refugees or was it designed to keep out anyone who didn’t have the required security status? Because there’s a big freaking difference between those two things.
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What do those guys know compared to a random dude on the internet?
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For all the reasons noted above… Being an immigrant isn’t a disqualifying status. Musk (himself an immigrant) is just being a fucking bigot.
Time to call these chucklefucks out for who they actually are rather than defending their worthless asses.
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You’re confusing security clearance requirements and ITAR regulations. There are classes of employees working at businesses under ITAR regulations who need no clearance, but must be citizens or permanent residents. Also, they’re required to get some ITAR training.
That said, I’m completely unsurprised that a Musk company fucked up handling these details.
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It’s the blanket “no immigrants or refugees at SpaceX, even in the cafeteria!” nonsense that is clearly in violation of the law. Here’s what an official document from the DOJ says about it:
If my company engages in activity regulated by the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR), does the ITAR or the EAR require me to hire only U.S. citizens? No. Nothing under the ITAR or the EAR requires or allows an employer to limit jobs to U.S. citizens.
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People seem to forget that having access to privileged information is a privilege and a responsibility. Part of that responsibility is knowing when it’s okay to discuss your privileged information. If you are doing it in front of a barista at the coffee stand downstairs then chances are that you’re not going to have it for very long. 
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I work in an ITAR adjacent industry, and this is right.
I think the prosecutors are overreaching. If a private company chooses to take a restrictive view of a compliance issue, one which puts them at commercial disadvantage because they need to hire more expensive people, even for roles not touching ITAR controlled technology, so be it. That’s the choice of SpaceX, they have the freedom to do that, because it’s discrimination on a non protected attribute, nationality.
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Again, actual Federal hiring guidelines say different.
Here’s a screenshot from the document I linked to above. It’s extremely explicit on this point. Only specific jobs can be restricted by nationality under ITAR, and those jobs need to meet certain requirements. It is illegal to have a blanket policy against immigrants regardless of job specifics.
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IN my case,
Technically, no.
But effectively, yes.
We could hire people to work in this situation with our client (or even adjacent to our client), but they would not be allowed to perform job functions that are covered or were covered by the job functions of covered employees. In this case, it meant that we would not be allowed to hire software engineers without maintaining the restricted access, and those software engineers we did hire would not be allowed contact with active engineers on the project in ANY WAY if the ones we hired were not covered as perm residents. So, effectively, it meant we couldn’t have people in the same office communicating, so, yeah. Technically, we could hire. Effectively, we couldn’t. (And as far as I know, we didn’t hire non-US residents because of the fact that we often had to rotate in and out of projects or work half time on one project and half time on another, and the rules forbid communication or access.)
But yeah, it doesn’t apply to people performing entirely different functions or operating in entirely different areas that only have casual interaction with the covered employees.
EDIT TO ADD:
Note where it says “A company may need to obtain authorization to release covered technology to people…” Historically the answer to that authorization release has been a unilateral and unappealable No.
