111 Iowa L. Rev. 1955 (2026)
Abstract
Export-control laws have long regulated information created outside of the U.S. government. Legal scholars have paid little attention to these national-security laws, and have not recognized that the government uses them specifically to assert a right to suppress information held in patent applications and trade secrets. In this Article, I present a new history of the relationship between export controls and intellectual property (“IP”) to show how the government regulates IP transfers, and how the state uses IP laws to national-security ends. Export-control laws regulate IP by controlling how people in the United States and beyond can share or use inventive information. Today, the government is deploying export controls to govern key IP and the trillions of dollars in global commerce that depend upon it.
Reckoning with the history and contemporary application of export controls compels us to revise our understanding of how the government regulates invention. First, export-control laws show how the government attempts to regulate the national-security risks created by inventive information. Scholars have argued that IP laws promote invention but fail to address the harms caused by inventive information. U.S. history reveals that the government has used export controls for more than a century to regulate the national-security risks of inventive information, creating a regulatory counterpart to IP laws that scholars have overlooked. Second, this history shows how IP laws extend government power over information. Scholars have argued that firms use IP to weaken state capacity and discretion. Not so when it comes to information the government deems central to national security. In this domain, IP laws incentivize firms to create, track, control, and report information in ways that are amenable to government regulation.