“Gadget” Superheroes and Federal Arms Control Laws

At least two major superheroes, Batman and Ironman, are the alter egos of  billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.

This raises two interesting issues. First, how exactly do these companies get the money for these sorts of secret projects? And second, do our various heroes break any laws when they leave the country or provide this equipment to others?

I. Arms Revenue

Weapons, particularly exotic and/or large and/or expensive ones, aren’t exactly for sale at Wal-Mart. Nor are they typically sold in much volume. Lockheed Martin Aeronautics, the division of Lockheed Martin responsible for the F-22 and F-35, sells somewhere in the neighborhood of a few hundred planes a year. Wal-Mart probably sells more items than that every second, even at 2:00AM.

That’s because Wal-Mart is selling to the consumer market, i.e. the hundreds of millions of customers their stores reach around the world. Lockheed Martin probably only has a handful of actual customers, because legal issues aside, only sovereign governments can afford to drop $150 million on a plane that seats one person, let alone a hundred of them.

In just about every comic book story, the conventional military does not seem to have access to the technologies used by Batman, Iron Man, etc., either explicitly or implicitly. I mean, there’s a reason the US government was pressing Tony Stark so hard in the beginning of Iron Man 2: the Pentagon wanted what Stark had, clearly implying that they did not, in fact, have it, i.e. Stark Industries wasn’t selling Iron Man technology to anyone. And they can’t be selling them to foreigners, because in addition to there being no indication of that in the stories it would be completely illegal without government authorization (see section II), and the federal government isn’t terribly likely to license the sale of weapons to foreign governments that it does not have itself.

Which raises the question: if the export of the really cool toys that our gadget-based superheroes like Batman and Ironman are using is restricted, how exactly is Stark Industries making any money? Wayne Enterprises is perhaps an easier case, as a company the size of Wal-Mart can probably misplace a billion dollars without too much difficulty, but a company that makes all of its money selling weapons has to sell weapons to someone. And if it isn’t to the government, the general public or to foreigners, where’s the budget come from?

The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo. So Stark Industries presumably makes most of its money selling entirely mundane weapons to the government instead of, say, Lockheed Martin or Boeing. Wayne Enterprises makes a ton of money in its other business ventures, in addition to providing conventional arms to the government, so it is also probably intended to replace a number of other companies. This is a convenient and understandable substitution. Comic book authors probably don’t want to be bothered with the hassle of getting permission from actual companies to use their name and logos, and it’s doubtful that said companies would have given permission if asked. The replacement is made easier by the fact that most of the companies being replaced don’t have much in the way of public exposure.  For example, before it became linked to the Bush presidency, most people had probably never even heard of Halliburton, an $18 billion a year company.

Even then, defense contractors live and die on Defense Department funding, and wild conspiracy theories aside, it’d be pretty hard for one of them to secretly develop a weapons platform that the government didn’t directly fund and therefore know about. Black budgets may not be known to the public or to Congress, but someone at the Pentagon or CIA sure knows about them. But replacing an existing company with a fictional one permits us to attribute the profits of entirely mundane weaponry like jets, tanks, and firearms, all of which are significant profit centers for their respective manufacturers, to our fictional companies and their R&D departments.

II. The United States Munition List

But there actually are legal issues here. Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine? And just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors: almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they’d obviously apply to something as kick-ass as the arc reactor.

So what about S.H.I.E.L.D.? The general international law issues of S.H.I.E.L.D. will be the subject of a future post, but how does all this apply to what is sometimes portrayed as an organization under the control of the United Nations, clearly a “non-US person” under the terms of the USML? Again, if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that State would authorize such a transaction. It gets better/worse. It is a violation under 22 CFR § 127.1(a)(1) to export any item on the USML without a license, and “export” is defined in 22 CFR § 120.17 as “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” So Iron Man’s little jaunt to Afghanistan in the first movie? That almost certainly constituted a violation of federal arms control laws. And even assuming that Bruce Wayne or Tony Stark invents their weaponry completely using their own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML.

Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either 1) decide to scale back arms control laws when faced with gadget-based superheroes or 2) decide to give those superheroes a pass, especially if they wouldn’t share. So the question becomes: why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the point, why is Congress messing around with hearings when they can simply send Stark to jail?

Well, probably because having Tony Stark do ten years (22 U.S.C. § 2778(c)) for arms control violations would be a pretty boring story.* And because fining Tony Stark the $1 million penalty there wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to pull out the mantra and remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, we can probably handwave this too.

III. Conclusion

So really, we’re one for two. We can probably see how a company like Stark Industries or Wayne Enterprises could find the resources to develop weapons like the ones used by Batman and Iron Man, but actually using them, particularly in international contexts, seems to run up against a federal prerogative the government seems unlikely to abandon.

*Of course, this could be a great premise for Iron Man 3, where Stark is sent to prison, only to be released when the government realizes that it simply can’t get on without Robert Downey, Jr. Which is at least as plausible as some other things speculative fiction authors have tried to sell us.

40 responses to ““Gadget” Superheroes and Federal Arms Control Laws

  1. First off, Stark Industries, while a major arms dealer in more or less conventional arms pre-Iron Man (as shown by the missiles Tony was demonstrating in Afghanistan), clearly must have nearly as many fingers in other, commercial pies, for Tony to even be able to contemplate getting out of the weapons business. Regardless, though, it’s clear in both movie and comic versions that Stark reserves a good-sized budget and a private lab at his residence to engage in R&D funded either as overhead (i.e., not attributable to any particular government contract) or from his personal fortune, so the development of the later Iron Man suits is not necessarily a funding problem. However, you’re absolutely right that his excursion in the armor to Afghanistan in the first movie broke ITAR along with a whole bunch of other laws six ways to Sunday. It would be an interesting question whether Tony could really be restricted from bringing the arc reactor in his chest abroad, though, since as a prosthetic device, prohibiting export would also put major restrictions on Stark’s freedom of travel.

    Secondly, SHIELD seems to be a US entity as often as a UN one in the comics, and definitely seems to be a US agency in the movieverse. Presumably, even when a UN agency with heavy US contributions, ITAR and similar regs are either amended along with all the other laws needed to allow a UN agency to do peacekeeping in the US, or purchases are handled by an arm of the US government which then turns the hardware over to SHIELD under the same terms as they handle secondment of US citizens to SHIELD forces. Either way, so long as the US government is okay with SHIELD operating the way it does at all, vendors like Stark are probably in the clear.

    A good question from the movieverse is exactly how Obadiah Stane finessed all those sales to the Ten Rings, though.

    As far as Batman goes, his vigilante activities break all sorts of laws, but yeah, when he takes his special equipment abroad, he’s probably breaking export regs as well.

    • Seeing as the comics version of SHIELD was treated as UN-affiliated and highly US-friendly – with implications that Washington sponsored the SHIELD Treaty from the beginning and saw the Directorate as a “favourite son” among international organizations up until the events of Secret Invasion – I agree that there was likely a “SHIELD clause” in the “Earth-616” version of ITAR.

      The same may well apply to the DCU’s UN-affiliated version of Checkmate as written by Greg Rucka and Eric Trautmann.

    • I was going to write much the same thing… The author *badly* misunderstands the economics of the big ‘arms’ companies.

      Taking LockMart as an example (since it was used by the author), not only do they sell F-35’s, they also sell Trident II missiles. They don’t only sell big ticket items, they sell smaller ones too. They don’t only sell physical items, but also hold maintenance, support, spare parts, consulting, and documentation contracts for the items they sell. And *that’s* just with the DoD. Then there is information technology and logistics support. Security services and support. Launch services and satellite construction/operation/support services for NASA. Air and Sea traffic control systems… And those are just some examples of the services and systems they provide to the rest of the US government.

      Not to mention services and products for foreign governments. Not to mention their commercial sales both domestic and abroad…

      They may not sell as many individual units as Wally World, but it’s a serious mistake to think their cash flow is limited to selling limited quantities of big ticket physical hardware to the US government. Their fingers are in a *lot* of pies.

      And since LockMart (and Boeing, and Northrup-Grumman) all maintain their own R&D facilities, both for their own product development and to carry out research contracts both government and commercial… I would assume the same to be true of their comic book world counterparts.

  2. Speaking of superhero gadgets and constitutional law, I’ve long wondered where Wonder Woman’s lasso fits in with a person’s 5th Amendment rights. Is Wonder Woman, who ironically wears an American flag-themed outfit, abusing her target’s constitutional rights every time she uses that lasso? Anyone have an opinion.

    • The person’s Fifth Amendment rights would probably only come into play if WW were acting as an agent of the state. If she were, then use of the lasso would certainly be considered custodial interrogation, since a reasonable person snared in an unbreakable lasso wielded by a superhero of immense strength would not feel that he or she was free to leave. Unlike telepathy I do think Wonder Woman’s lasso presents a clear Fifth Amendment problem since it actually compels the person to speak. I don’t think it could be used in court without the defendant’s agreement, for example.

  3. Since Tony Stark is the CEO of a defense contractor it is safe to assume that he has security clearance sufficient to have access to the technologies he has developed and continues to develop. If, in the context of R&D he finds it necessary to field test equipment he has developed then he simply has to follow Technology Control Plans and security procedures suitable to the technology he is employing. While he does operate outside of US territories, it does not appear to be for the purpose of showing, giving, or selling proscribed technologies to foreign nationals. ITAR is designed to prevent the export of technology, not its use overseas.

    It does become necessary, from time to time, for civilian employees of defense contractors to travel overseas to help assess, modify or repair systems listed as covered by ITAR. Additionally they sometimes must bring components of those systems with them. Still, since these operations are for work on systems under the control of US nationals there is no ITAR issue restricting them from bringing the materials outside of the US, provided that the proper paperwork has been filed.

    While Stark Industries would have to have paperwork on file for its policies and procedures for handling the technologies it works on, there is no reason to assume that these would preclude transporting them overseas, provided that those plans were sufficient to prevent foreign nationals from gaining any insight into their workings.

    In terms of how this behavior is serving shareholder interest, I would have to contend that he is developing more of an experimental testbed than a prototype weapon system. Presumably he would contend that eventually some of the Iron Man weapons would find their way into slightly more conventional weapons for use by the military. Many defense contractors conduct fundamental research into materials and technologies without a specific program in mind, and need test cases to use these materials with. And so, while arc reactor technology might turn out to be more suitable for use powering aircraft carriers, Stark can claim that the small-scale test in the suit enables him to assess its functionality in an even more dynamic combat situation, without the irksome waste of destroying a dozen multi-billion dollar ships.

  4. I am writing about a new line of inquiry. I don’t know where all superheroes came from, but I do know that Kal-El, son of Jor-El and Lara came from Krypton. The infant entered the United States without a visa and without authorization. My recollection is that he was never formally adopted by the Kents in Smallville and therefore remains to this day an undocumented alien (in the true sense). As such, his employment with the Daily Planet as Clark Kent is not criminally unauthorized only because Clark began his employment priot to the 1986 Immigration Reform Control Act, but it remains unauthorized. Although the Daily Planet is probably not in violation of law, assuming that Ma and Pa Kent obtained a SSN for Clark, Clark himself is subject to arrest and deportation if discovered by a CIS or ICE agent. There are cetain forms of relief that Calrk might be leigible for if he could establish his date and place of birth, identity, etc. including REGISTRATION, a process for those physically present in the US since 1972. Of course, he would have to deal with his departures from the US and the Earth for that matter, which if “meaningful” would make him inelgible for the relief sought. Also, a re-entry after a one-year period of stay in unlawful status (after 1997) would make Clark inadmissible for a period of ten years. Clearly Clark has a difficult task ahead of him. (Even marriage to Lois, Lana or some other ” L L ” US citizen would not help. Clark cannot “adjust his status” in the US and has continued impediments to becoming lawful. (He might try, as Kal-El for “deferred action” in that Krypton no longer exists and he might be hard to deport.)

    But the most interesting aspect of Clark’s situation is that despite his many years of lawful behavior and admirable service to the USA and humanity, he is not eligible for any considertion or US benefit under the law because of the politically motivated asinine defeat of the DREAM ACT by the Senate this week. Like many others who came to the USA as infants through no fault of their own, Clark Kal-El Kent cannot become legal, cannot go to College, cannot join the Peace Corps, cannot join the US military and cannot provide service or benefit to this Country because he cannot become legal. Of course Clark is a myth but tens of thousands of other worthy “undocumented” are not a myth and are stuck in the limbo that a short-sighted, small- minded group of political hacks has permitted to continue.

    • We are slated for a more in-depth post on immigration issues, but there are two solutions to Superman’s problem. First, the foundling statute (8 USC 1401(f)) may apply, depending on what exactly “until shown” means. Second, in at least one continuity his origin story was modified so that the rocket ship actually contained an artificial womb, so that Superman wasn’t actually born until the ship landed in Kansas and opened. In that comic the Supreme Court ruled that he was in fact not only a US citizen but a natural born citizen eligible to become President.

      Of course there’s also the possibility of a private act of Congress making Superman a citizen directly.

    • Well, I think that while Clark could be arrested he could not be deported. In order for deportation to be carried out, you need to be legally allowed to enter that country. So, they would have to deport him to Krypton which would be kind of tough. I am not sure how the US deals with people who are nationals of no country (I know there are people who are in that unenviable state) but most likely, Superman would be able to become a refugee. Or he could just ignore the people trying to arrest him and carry on as though they did not exist…

  5. I’d love to see you guys take on Wonder Woman’s Lariat of Hestia (magic lasso) and how it may infringe upon the Fifth Amendment.

  6. During the McCarthy period, they pulled Oppenheimer’s Security clearances. He had been so ill-advised as to opine that nukes might need
    more supervision than they were getting.

  7. Pingback: DYSPEPSIA GENERATION » Blog Archive » “Gadget” Superheroes and Federal Arms Control Laws

  8. I think the funding issue actually brings up questions of law in both the realms of federal and state securities laws and state corporate law. Clearly both Bruce Wayne and Tony Stark are either majority shareholders or, at the very least, controlling shareholders in their respective corporations. The fact that they may be using corporate funds to develop their technology may be directly infringe on their duties of care. In other words, they are misappropriate corporate funds for purposes that do not benefit the corporation or their fellow shareholders. Furthermore, even if Wayne and Stark are developing their gadgets on their own time and with their own money, they are certainly violated their duties of loyalty as they are clearly usurping corporate opportunities. These actions potentially open Wayne and Stark up to a myriad of litigation: SEC investigations, criminal prosecution by either the U.S. Attorney or their state’s AG (or both), direct law suits by their corporations or their corporations’ shareholders, and/or derivative suits initiated by minority shareholders.

    • That one is easy at least for IronMan. Tony Stark can just claim that it is part of marketing and PR. I expect no attorney will successfully challenge the argument that having IronMan as your CEO is great for business.

  9. Note also that Tony violates FAA regs every time he flies, and violates immigration & customs rules every time he enters or leaves a country.

    As for the latter, so does travel from (and sometimes to) the JLA satellite and/or Watchtower.

  10. I imagine that special waivers have been created to either thank the hero in question, or to cover up mistakes made by the government. In other words, Tony Stark discovers that several governmental employees were helping his partner sell weapons to the terrorists, and help promote a secret CIA coup. In exchange for not telling the world about this, and for his help in some future time, he is given waivers on weapons law.

    Or it may come down to politics. Can you arrest Batman and get re-elected in Gotham? After saving the world 3 times you kind of become too popular to arrest on technicalities. Then again, a simple trust fund set up by Bruce to thank Batman, and the best legal counsels in the world are making sure that he isn’t arrested.

  11. I just discovered this blog a few days ago, and am really enjoying it.

    A couple of things I thought I might point out. Arms and military weaponry is, by far, the largest US export.

    And I heard Boeing brag on NPR the other day about selling tankers to twelve customers. (That was one of their points on how successful the tanker program is.)

  12. Are there laws on the books that would prevent Wal-Mart from selling a laser pistol?

  13. Thanks for the update on superman’s womb. I missed that when I passed age 50. Did he get a birth certificate? US Passport?

  14. Pre-Crisis Superman was granted citizenship of all UN nations as well as special powers of arrest and entry and exit.

  15. I’m not in contracts, so I can’t cite the specific regulations, but it is in fact a rule that you cannot export arms that are equal or superior to ones used by US forces. Or at least that was stated in my last import/export briefing.

    • Yet, the US exports weapons equal to what it fields routinely. Two of our current crown jewels (Trident-II and Aegis) are in the service of foreign powers. So was/is aircraft like the F-14, F-15, and F-16.

      • But *are* they equal? My (non-expert) understanding is that our exported Aegis systems are not quite as capable as the version built for US Government use.

  16. Isn’t it possible that both Wayne and Stark Enterprises are closely held corporations, their stock owned by family and/or close associates of Bruce and Tony, respectively? In Wayne’s case, that would be Bruce himself, Lucius Fox, Alfred and Dick Grayson (perhaps Clark and Lois own some as well). In Stark’s case, that would be Tony, Pepper Potts, Happy Hogan, and perhaps James Rhodes. Possibly his closest Avengers associates–Steve Rogers, Don Blake, Hank Pym and Janet van Dyne–would also be stockholders.

    Alternatively, both Wayne and Stark operate charitable foundations; could it be these entities are the major or sole stockholders of the respective companies?

    • Wayne Enterprises seems to be regularly depicted as publicly held, although Bruce and his closest associates do seem to have a large enough chunk of controlling shares for most of their writers’ purposes.

    • I suspect that Lois and Clark would be prohibited from owning stock in Wayne Enterprises not by law, but the journalistic ethics rules of the Daily Planet that would presumably prevent them from reporting on a company they own stock in. And I’m quite sure, without checking, that they are on record as having reported on Bryce Wayne/Wayne Enterprises any number of times.

  17. Let’s add a mix here, what about alien technology that’s been added to current technology. Example would be the X-Men owning Shi’ar modified XR-71 Blackbird. Even the Fantastic Four have used alien tech. when it came to many of the gadgets Mr. Fantastic had used on various missions.

  18. I love how all the comments are focused on Stark, and the readers and authors have both fundamentally accepted that Batman is just going to tell international law to frag off while he does whatever he wants.

    • Well, as he was quoted in The Dark Knight Returns: “Of course we’re criminals. We’ve always been criminals.” Stark, OTOH, either has a close public relationship with Iron Man (back in the ‘bodyguard’ days), or is publicly known AS Iron Man (movie continuity, and maybe the books nowadays, I dunno). As such, he is much more subject to pressure by State agencies that seek to reign in Iron Man’s conduct. The company’s assets could be seized, or he himself could be arrested.

  19. The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo.

    This has been true of Stark Industries since the beginning. Stark was originally headquartered on Long Island and in the 1960s was the prime contractor for the Lunar Module, both true of the real LM’s prime contractor Grumman.

  20. Actually, I think waivers would be granted fairly rapidly. In effect, Superheroes could and probably would ignore any attempt to bring them into compliance with such various laws. At that point, the political body would be faced with the possibility of looking incapable of enforcing the laws, (not the best boon for any political career) or simply grant some sort of waiver. They would most likely opt for the latter. Also, Tony Stark and Bruce Wayne probably provide enough in campaign contributions to convince anyone who holds political office to let them do as they please.

  21. In the new Batman arc Batman Incorporated, it is very possible that Bruce’s legal team would be scrambling to cover their and their client’s asses given that Bruce came out and announced he has been funding Batman all these years and plans to fund a Batman in every country around the globe. Somehow I doubt any of that would make it on to the pages since it would make for a rather boring story arc.

    • Bruce is nothing if not thorough in such matters. Probably had one of those contingency plans already set to go with specific attention paid to legal strategies.

  22. “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.”

    Alright, here is a question, then–could Stark claim that using the suit to fly to Afghanistan in the first movie technically fits the definition of “mere travel”–that he’s simply using it as a personal transport device, and not for any trade purpose?

    • A nice try, but I think you’re reading the law wrong. Say you’re an engineer for a defense contractor. What this regulation does is permit you to go to Tahiti on vacation even though you know how to make restricted weaponry, despite the fact that taking that information out of the country is otherwise illegal. But it doesn’t permit you to take any of said weaponry with you. So Tony Stark going to Italy is fine, unless he brings the Iron Man suit with him. Then it’s a problem.

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