NCURA Conference

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Massachusetts Institute of Technology
NCURA Conference Export Controls and Embargoes,
What You Never Wanted to Know November,
2002 Jamie Lewis Keith, Senior Counsel
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A. How Does An Academic Research Institution

• Maintain Its Open Teaching and Research
  Environment
• Participate in Joint Research, and
• Comply with Export Controls and Embargoes

• On Campus, With An International Faculty and
  Student Body (Deemed Exports Problem)
• Elsewhere In US (Deemed Exports, Other
  Institutions Compliance Problem) and
• Abroad (Whether working with US Nationals or
  Foreigners)?

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B. Not An Easily Answered Question

• Culture of Free Exchange of Information, Sharing
  of Equipment in Research/Teaching
• Culture/History of Nationality Blindness, Global
  Contribution in the Advancement of Knowledge
• Institutions Are Decentralized, Ill-Adapted to
  ControlsParticularly Counter-Culture Controls
• Regulations Are Hopelessly Complicated,
  Frequently Change
• Licensing Takes TimeUnnatural to Halt Research
• Increasing Regulation Makes It More Difficult to
  Not Do Research if License Required

• Challenges Include

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C. Five Key Elements To Successful Compliance
Approach

• 1. Keep It Simple!
• 2. Keep It Open!
• 3. Centralize Administration/Oversight in Office
  Faculty Cannot Ignore (OSP)
• 4. Support Responsible Office with Legal Counsel
• 5. Educate Community On
• What Law RequiresConsequences for Violations
• How to Keep It Simple and Open
• Use ExamplesLessons Learned

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D. How To Keep It Simple
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E. When Export Controls (EAR, ITAR, Embargoes)
Do Not ApplyPublic Domain/Publicly Available

• Public Domain (ITAR)/Publicly Available (EAR) (22
  CFR 120.11, 120.10, 15 CFR 734.3(b)(3),
  734.7, 734.9)
• Broadest Exclusion Under EAR and ITAR
• Allowing Deemed Export (in US) or Export
  (Abroad) Without Export Controls Applying At All
• Preconditions
• No Equipment or Encrypted Software Involved
• No Reason to Believe Information/Non-Encrypted
  Software Will Be Used In/For Weapons of Mass
  Destruction
• US Government Hasnt Imposed Export Controls
  as Funding Condition

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E. When Export Controls (EAR, ITAR, Embargoes)
Do Not ApplyPublic Domain/Publicly Available
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E. When Export Controls (EAR, ITAR, Embargoes)
Do Not ApplyPublic Domain/Publicly Available

• If Only EAR (Not ITAR) Information or
  Non-Encrypted Software is Involved, Publicly
  Available Also Includes Information Already
  Published At/Through
• Conferences, Meetings, Seminars, Trade Shows,
  Exhibitions In US or Abroad
• Any Educational Information Released in a
  Course of Any Academic Institution, Wherever
  Located, and Listed In Its Course Catalogue or
  Associated Teaching Laboratories
• Public Domain/Publicly Available
  Information/Non-Encrypted Software Isnt Subject
  to Controls Even If OFAC Embargoed Countries or
  Nationals, or EAR Denied Persons are Involved
• But wise to check with Central OSP Office
• Restrictions on Travel to Embargoed Countries
  May Still Apply Under OFAC Regulations (31 CFR
  Part 500).

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E. When Export Controls (EAR, ITAR, Embargoes)
Do Not ApplyUS University Fundamental Research

• US University Fundamental Research (ITAR and EAR)
  (22 CFR 120.11(8) and 15 CFR 734.8(a) and (b))
• Easy to Misunderstand Breadth of This Exclusion
  from Export Controls-- Limited Exclusion
• Cannot Create Fundamental Research Information or
  Non-Encrypted Software Anywhere Other Than At an
  Accredited Institution of Higher Learning Located
  in the US
• Foreigners Can Participate in Creation of
  Fundamental Research Only at an Accredited
  University Located in the US
• US University Faculty/Students Cannot Do
  Research Abroad Under the Fundamental Research
  Exclusion
• Once Fundamental Research is Created in the
  US, It Can Then Be Exported Abroad Without
  Controls Applying
• Very Limited Exception for Fundamental
  Research Involving Research Satellites and
  Related Information Exports to Certain Entities
  in NATO, Major Non-NATO Ally, European Space
  Agency, EU Countries Involving Only Nationals of
  Such Countries (22 CFR 121.1(XV(a) or (e)),
  123.16(b)(10) (Equipment), 125.4(d)(Information/In
  struction))

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E. When Export Controls (EAR, ITAR, Embargoes)
Do Not ApplyUS University Fundamental Research

• Definition Information/Non-Encrypted Software
  Resulting From Basic and Applied Research in
  Science and Engineering Conducted At An
  Accredited University Located In the US, Which is
  Ordinarily Published and Shared Broadly In
  Scientific Community, and Which is Not
  Proprietary, and to Which Publication
  Restrictions Do Not Apply
• Proprietary Information Provided by Sponsors
  to University Researchers Is Not Fundamental
  Research and May Be Subject to Export Controls
• Preconditions
• EAR/ITAR-Listed Equipment and Encrypted
  Software Not Involved
• No Reason to Know of Use In/For Weapons of
  Mass Destruction
• Information/Non-Encrypted Software Is Being
  Released to Foreigners In US Only (deemed export)
  at an Accredited University
• There Are No Publication Restrictions On
  Research Results, Except (under EAR and Probably
  Under ITAR but not decided) for a Short
  Pre-Publication Review to Remove Proprietary
  Information Provided by Sponsor to the Researcher
  -- Or to File for Patent Protection
• Cannot Accept Publication Restrictions No
  Side Deals
• Research Results are Not Proprietary or
  Classified
• Unclear Whether ITAR Requires Actual
  Publication of Results or Just Ordinarily
  Published - Prevailing Wisdom is that Ordinarily
  Published is Enough

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E. When Export Controls (EAR, ITAR, Embargoes)
Do Not ApplyUS University Fundamental Research

• Information/Non-Encrypted Software Resulting From
  Fundamental Research Undertaken At An Accredited
  University In the US, Is Not Subject to Export
  Controls --Even If OFAC-Embargoed Countries or
  Nationals or EAR-Denied Persons Are Involved
• Can Create It Without Controls Applying On
  Campus
• Once Created, Can Export It Anywhere

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F. When Export Controls Do or May ApplyHelpful
Thresholds License Required?

• 1. If Public Domain/Publicly Available or
  Fundamental Research Exclusions Do Not Apply --
  And Exposure to Foreigners In the US (even on
  campus) or Transfer or Travel Abroad Is Involved,
  Then, Export Controls
• May Apply and EAR License May Be Required Before
  Any Deemed Export or Export If Equipment,
  Software Is on the EAR Commerce Control List
  (CCL) or Information Concerns Listed Items
• ITAR Will Apply and a License Will Be Required
• If Equipment, Software is on the ITAR US
  Munitions List (USML) or Information/Software
  Concerns Listed Items or
• Even if Not On Lists, If Reason to Know That
  Equipment, Information, Software Will Be Used
  In/For Weapons of Mass Destruction or
• Even if Not on Lists, if Equipment,
  Software, Information Is Designed or Modified For
  Military Use

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F. When Export Controls Do or May ApplyHelpful
Thresholds License Required?

• 2. If Equipment, Software Will Be Used In or
  Regards Outer Space and Doesnt Fall Under 22 CFR
  123.16(b)(10) or the Related Information/Training
  /Services Arent in the Public Domain and Dont
  Fall Under 22 CFR or 125.4(d) And Exposure to
  Foreign Nationals in US (deemed export) or
  Transfer or Travel Abroad is Involved
• License Will be Required if on USML
• If Exclusions Do Not Apply, And Exposure to
  Foreign Nationals in the US (deemed export) or
  Transfer or Travel Abroad Is Involved And
  Information, Software, Equipment Is Not on USML,
  But Is on CCL as EAR 99 Only
• May Need License If
• Destination-Foreigners Nationality Is
  China, India, Israel, Pakistan, Russia
  (countries with restricted entities on EAR
  Entities List--15 CFR 744, Supp.4)
• End User Is on Denied Person List
• (http//www.bxa.doc.gov/DPL/Default.s
  htm)

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F. When Export Controls Do or May ApplyHelpful
Thresholds License Required?

• Destination/Foreigners Nationality is an OFAC
  Embargoed Country (Afghanistan, Unita (Angola),
  Cuba1, Iran1, Iraq1, Libya1, N. Korea1, Former
  Republic of Yugoslavia, the Balkans (Macedonia,
  S. Serbia, Montenegro, W. Balkans), Burma,
  Liberia, Sudan1, Sierra Leone)
• Destination/Foreigners Nationality is Another
  US Embargoed Country (Rwanda, Serbia, Kosovo,
  Montenegro, OFAC Embargo List)
• Otherwise, Dont Need License (Just Follow
  Export Documentation and Procedures)

4. If Exclusions Do Not Apply, And Equipment,
Software, Information Is On USML, License Is
Required Before Any Exposure to Foreigners In US,
Even On Campus (deemed export) or Transfer or
Travel Abroad

• Will Not Get License
• If Destination/Foreigners Nationality is
  Afghanistan, Armenia, Azerbaijan, Belarus, Cuba1,
  Iran1, Iraq1, Libya1, N.Korea1, Syria1, Vietnam,
  Burma, China, former Republic of Yugoslavia
  (Serbia and Montenegro), Haiti, Liberia,
  Rwanda, Somalia, Sudan1, Zaire (Democratic
  Republic of Congo) or any UN Security Council
  Arms Embargoed Country (Unita (Angola))
• 1 State Department Terrorist Countries (T-7)
• - US Arms Embargo Countries
• May Get A License Otherwise

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G. Major Truths

• 1. It Is Easier For Universities to Make
  Information/Non-Encrypted Software Public Than
  to Keep It From Exposure to Foreign Colleagues
  and Students On Campus, Elsewhere In US, and
  Abroad
• Use the Public Domain/Publicly Available
  Exclusions Whenever Possible
• Use Fundamental Research Appropriately On
  Campus in US
• 2. Beware of Equipment and Encrypted Software
• Do Not Ship/Release Abroad to Foreigners Or US
  Nationals Before Checking USML and CCL, and
  Central Office/OSP
• Consider Deemed Export Question on Campus
• -- Possible Fundamental Research Exclusion
  Under EAR Unclear Under ITAR
• -- Publicly Available Educational
  Information Through Course or Teaching Lab
  Exclusion Under EAR, but Not ITAR

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