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U.S. EXPORT CONTROL LAWS ANALYSIS FOR THE IT MANAGER

This analysis presented by Assistant Attorney General Wendy A. Robinson outlines the implications of U.S. export control laws for IT managers involved in international collaborations. It focuses on a hypothetical scenario where U.S. university faculty work with foreign scientists in research against tsunamis. Key aspects include compliance with regulations from the Treasury, State, and Commerce Departments; modes of collaboration; technology exchange concerns; and requirements for safeguarding sensitive information. IT managers must navigate these laws to ensure compliance while advancing scientific research.

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U.S. EXPORT CONTROL LAWS ANALYSIS FOR THE IT MANAGER

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  1. U.S. EXPORT CONTROL LAWSANALYSIS FOR THE IT MANAGER Presented by Wendy A. Robinson Assistant Attorney General Oregon Department of Justice Salem, Oregon

  2. BASIC HYPOTHETICAL FACTS • U.S. university faculty members • Collaborate with university colleagues and government scientists • In India, Pakistan, Myanmar (Burma), Sri Lanka and Indonesia • To research and develop better early warning systems against tsunamis in the Indian Ocean US Export Control Laws

  3. MODES OF COLLABORATION • Sharing experimental data and teaching seminars via satellite, Internet, email and DVDs • Posting experimental data to U.S. university and foreign university websites • Local exchange visits by U.S. and foreign colleagues • Development of new early warning systems and prototype equipment • Access to advanced NOAA sonobuoy and NASA satellite data • Joint papers to be reviewed by foreign colleagues before publication. US Export Control Laws

  4. TECHNOLOGY • U.S. faculty members will provide to their foreign colleagues: - Remote ocean sensors with advanced battery packs and long-distance radio capacity to link with communications satellites in low earth orbit - Software to refine civilian-level satellite imagery into much higher resolution images - Underwater submersibles with deep diving capabilities to study underwater currents - Advanced earth movement sensors. US Export Control Laws

  5. APPLICABLE U.S. EXPORT CONTROL REGIMES • Treasury Department’s Office of Foreign Assets Control (OFAC) embargo and Specially Designated National (SDN) regulations • State Department’s Directorate of Defense Trade Controls (DTC) International Traffic in Arms Regulations (ITAR) • Commerce Department’s Bureau of Industry and Security (BIS) Export Administration Regulations (EAR) US Export Control Laws

  6. APPLICABILITY TO U.S. UNIVERSITIES • U.S. university and U.S. faculty members = “U.S. persons” • Physical exports and “deemed exports” • “Fundamental research” exemption (FRE) - ITAR: 22 CFR § 120.11(a)(8) - EAR: 15 CFR § 734.8 - OFAC: rule on “information and informational materials” [e.g., 31 CFR § 560.210(c)]. US Export Control Laws

  7. LIMITATIONS IN RELIANCE ON FRE • Restrictions on publication • Concerns about new, non-commercial hardware or technology • Only available for activity INSIDE United States • Limits on disclosures • Limits on foreign participation (but not by foreign students in U.S.) US Export Control Laws

  8. EXPORT CONTROL COMPLIANCE • WHERE? What are the “destination countries”? • WHAT? What is the technology involved? Is it “military” or “dual use”? • WHO? Who are the proposed export recipients? • WHY? What is the purpose of the export? • HOW? What is the method by which the physical or “deemed” export will occur? US Export Control Laws

  9. QUESTION 3: WHO? • Faculty, staff, students at US universities • Students at foreign universities Need specific list of collaborators Need to know hidden participants • MOU or technology sharing agreement incorporating: Export control clauses Acknowledgement by foreign participants PI/university staff has to check that controlled item is still where it is supposed to be US Export Control Laws

  10. QUESTION 5: HOW? • Physical exports of controlled hardware • Electronic exports of controlled software, “technology” • “Deemed exports” of controlled software or “technology”: - Demonstrations - Oral exchanges - Instruction or training • Posting on Internet • Academic publications US Export Control Laws

  11. “5 QUESTIONS” APPROACH NOT A PANACEA • Does not (and cannot) make 100% legal analysis • Intended only as “first cut” approach • Does ask faculty members, researchers to think through implications of their work • Does provide foundation for faster, more cost-effective consultation with counsel • Does provide solid factual basis for any follow-up with or by U.S. regulatory agencies US Export Control Laws

  12. NON-ENCRYPTION SOFTWARE LICENSES WITH EXPORT CONTROL CLAUSES • No problem if: • Publicly available (published) • Arises during or as a result of fundamental research • Is used in catalog course US Export Control Laws

  13. ENCRYPTION SOFTWARE • Where? Is it being “exported” anywhere other than Canada? Embargoed countries (T-6 Plus) EU Plus countries • Who? Are the recipients of the software source or object code prohibited persons? Foreign governments or employees? • How? Deemed export under EAR only applicable to source code. Availability on the Internet is publicly available US Export Control Laws

  14. ENCRYPTION SOFTWARE (CONT’D) • What? Is it source code or object code? If not, no problem. Is it on the Commerce Control List or listed under ITAR? BIS checklist www.bis.doc.gov/encryption/checklistinstr.htm If ITAR controlled no foreigner can have access − − − − − US Export Control Laws

  15. EXCEPTIONS Publicly available Not source code or object code Taught or discussed in catalog class Part of a textbook US Export Control Laws

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