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Export Controls and Software

Export Controls and Software. Josephine Bathke Office of General Counsel. Legal Basis for Export Controls. EAR (Export Administration Regulations) 15 CFR §§730-774 Department of Commerce Dual use items. Legal Basis for Export Controls. ITAR (International Traffic in Arms Regulations)

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Export Controls and Software

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  1. Export Controls and Software Josephine Bathke Office of General Counsel

  2. Legal Basis for Export Controls • EAR (Export Administration Regulations) • 15 CFR §§730-774 • Department of Commerce • Dual use items

  3. Legal Basis for Export Controls • ITAR (International Traffic in Arms Regulations) • 22 CFR §§120-130 • Department of State • Defense articles, defense services, related technical data (inherently military in nature) • More complex, restrictive, ambiguous than EAR; definitions of some key terms arguably internally inconsistent

  4. EAR • Goods and related technology listed on Commerce Control List (CCL, 15 CFR §774, Supp.1) • 10 categories: license required • Nuclear materials; chemicals, microorganisms, toxins; electronics; computers; telecommunications; lasers and sensors; avionics; marine; propulsion systems

  5. EAR 99 • Additional “catch-all” category • Goods/technology “subject to the EAR” as defined in 15 CFR §734.3(a) but not on the CCL • May or may not require license, depending on destination (country, individual)

  6. ITAR • Defense articles, defense services, related technical data on US Munitions List (USML) at 22 CFR §121 • Inherently military in nature (designed to kill/defend against death in military situation) • 21 categories: requires license • Includes weapons, chemical and biological agents, vehicles, missiles, equipment, all satellites

  7. The problem for university research • Expansive definition of “export” • Transfer/disclosure outside US to any person (including US citizen abroad) • Transfer/disclosure in any form (verbal, written, electronic, visual) within US to anyone not a US citizen or permanent resident (green card holder) (“deemed export”) • NOTE: ITAR includes defense services

  8. Significance of deemed export rule If export controls apply and license is required • And no exemption is available • Have to obtain license before export-controlled item/information can be shared abroad or on US campus with foreign national participating in the research • Where certain countries involved, no license available at all

  9. Exclusions/exemptions • Public domain (ITAR)/publicly available (EAR) • Fundamental research • Bona fide/full time regular employees (ITAR) • Educational instruction

  10. Exclusion for public domain/publicly available • Does not apply: • To equipment or encrypted software • If reason to believe information will be used for WMD • Where US government has imposed access and dissemination controls as condition of funding (at least under ITAR)

  11. Sanctions for noncompliance • EAR • Criminal: up to $1M fine or 5x value of export, whichever larger, per violation; up to 10 years • Civil: up to $120K per violation, loss of export privileges • ITAR • Criminal: up to $1M per violation, up to 10 years • Civil: up to $500K per violation, loss of export privileges, seizure of item

  12. Sample EC Language from SAS JMP License Export Restrictions • Customer may not download or otherwise export or reexport the Software or any underlying information or technology ("Controlled Material") except in full compliance with all laws and regulations of the United States of America and any other applicable laws and regulations.

  13. Sample EC Language (cont.) • By accepting this Agreement, Customer affirms it is located in and is a lawfully admitted or organized permanent resident of a country to which the United States permits SAS to send the Controlled Material. • Customer further affirms it is a party to whom the United States allows SAS to provide the Controlled Material.

  14. Sample EC Language (cont.) • Customer will prevent access to the Controlled Material by any party to whom the United States would forbid such access. • Currently, the United States restricts access to the Controlled Material by parties in or from Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria, among other countries. • This list of countries may change in the future and may differ for other products SAS provides.

  15. Sample EC Language (cont.) • In addition, the United States restricts access to the Controlled Material by certain listed embargoed parties, parties involved in terrorism, and parties who will use the Controlled Material for design, development, or production of nuclear, chemical, or biological weapons, or missiles

  16. Questions?

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