- John Jay Miller
- Export Control Specialist
Federal laws contain numerous restrictions on the export of items, technology, and software. These rules can affect the research programs conducted by faculty, staff, and students at Indiana University.This provides a general overview of the rules that researchers must consider in their work.
The export control regulations of the Department of Commerce impose restrictions on some types of University research and activities primarily for national security purposes. In addition, the International Trafficking in Arms Regulations ("ITAR") apply to the export of munitions and defense related technology. Finally, the Office of Foreign Asset Control ("OFAC") is responsible for enforcing embargoes on shipments and interactions with certain embargoed countries (e.g., Cuba, Iran, Libya, North Korea, Sudan, and Syria) and certain prohibited activities (diamond trading, nuclear non-proliferation, terrorism, and narcotics trafficking). All of these restrictions can trigger serious penalties, and must be considered by researchers. Below, this summary provides additional information regarding the export control regulations.
The export control regulations are designed to prevent the proliferation of technologies that are "dual use" i.e., those that may be used for both civilian and military/terrorism purposes. The equipment and technologies that may be covered by the regulations are extensive, from software, computers, cameras, centrifuges, autoclaves, accelerators, radiation detectors, etc. to a wide range of chemicals, biological agents and toxins. The list of items that may be subject to some form of regulation is 47 pages long. Each item has detailed specifications (i.e., not all cameras are subject to export controls) and, importantly, only technologies that are not publicly available are subject to the controls, although special rules apply to even publicly available encryption software. Each type of item is classified in the export control regulations according to those countries to which it cannot be exported. For example, some items cannot be exported at all without a license; some others may be shipped only to Canada without a license. Other items and technologies can be exported to all but a few other countries. In addition, these items may or may not qualify for a general exemption from the licensing requirement. These regulations are very complex and not easily reduced to dos and don'ts.
There are three areas of application of the export control regulations that you need to be concerned with:
1. Actual export. Shipping any covered items that cannot be exported without the required license fall within the export control regulations. For example (i) while on a trip to another country, allowing a researcher who is a national of that foreign country access to the university server in a way that permits the researcher to download software would be an "export" in violation of the regulations; (ii) shipment to Russia of a "gyro-astro compass" which technology or software is not publicly available would require a license.
2. Research with publication restrictions. Certain government or corporate sponsored research may impose controls on the sharing of otherwise unclassified research. If these restrictions on research are accepted, the research is not considered fundamental research and, if it involves controlled technology or software, we would need to ensure against any unauthorized disclosure of the research to foreign nationals - a difficult task in our current research environment.
The issue of whether to accept this type of research is a policy issue ultimately to be decided by the faculty. We are currently setting up a University-wide task force to revisit the issue of restricted research. However, the university's current policy set forth in Principle 3 of the STATEMENT OF PRINCIPLES ON INTELLECTUAL PROPERTY published in the university's academic handbook provides that "Indiana University policies do not permit the acceptance of secret research, i.e., classified government research."
3. "Deemed" exports. A "deemed" export is the disclosure of covered technology and software to a foreign national, including the disclosure of a covered item to a foreign national that takes place inside the United States . This is the area that currently poses the most concern and difficulty for university researchers. To understand this last prong of the regulations one needs to understand how "deemed" exports intersect with the "fundamental research" exception under the regulations.
(a) Deemed exports are verbal, written, electronic, and/or visual disclosures of information to foreign nationals inside or outside the United States . Deemed exports include assisting or training foreign nationals, in the US or abroad, in connection with design, development, manufacture, testing, modification, processing, and use of covered items.
Thus, if a particular item cannot be exported because the technology is controlled, (i.e., not publicly available) to China, revealing the technology or allowing the use of the equipment, as defined, by a Chinese national in the United States is a "deemed export." Use is currently defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing. The Inspector General has recommended changing the "and" to "or." Thus, even just operating the equipment would constitute "use."
(b) The fundamental research exception carves out from the application of the regulations research where the results are ordinarily published and shared broadly. It is distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons. Thus, accepting of publication restrictions throws out the fundamental research exemption, requiring researchers to assure that certain foreign nationals will either be licensed or will not have access to the research.
Until now, the Department of Commerce has interpreted its regulations so as to allow foreign nationals to have use of, and information about, equipment and technologies that are on the list of covered items without licensing etc. so long as the research involved qualified as "fundamental" and was not proprietary. Thus, a Chinese national graduate student could work with a computer containing software not publicly available or participate in developing new programs or technology without the need for a license.
A report by the Inspector General of the Department of Commerce in 2004 opined that this reading was far too liberal in terms of achieving the goals of the regulations - protecting national security. This precipitated a proposed change to eliminate the fundamental research exception for certain foreign nationals who have access to use controlled equipment.
Another proposed change would in essence reject naturalization of foreigners by other "friendly" nations. Thus, a Syrian-born person who becomes a nationalized citizen in Canada or Australia would still be considered a Syrian national for purposes of the regulations and virtually banned from any research laboratory in the United States.
We do not expect researchers to become experts in the technical aspects of the export controls regulations. We would urge you to be aware of the issues and to call or e-mail.
Are you planning to travel abroad in the very near future? Do you plan to take your university issued laptop computer, cellular device, tablet, digital storage device, or encryption products with you? Did you know that export control laws may require you to obtain a license or license exception under the Export Administration Regulations (EAR) prior to taking information stored on these devices or the devices themselves overseas?
Export controls are laws that prohibit the unlicensed export of certain items or technologies for reasons of national security and/or protection of trade. These laws are regulated by the Department of Commerce’s Export Administration Regulations (EAR) and the Department of State’s International Traffic Administration Regulations (ITAR) and other governing bodies. Violation of these laws and regulations may result in substantial fines and possible prison time.
Please contact the Office of Research Compliance for assistance in determining if your university issued electronic components require a license prior to an international departure.
Please feel free to contact the individuals at the top of this page, if you have any questions concerning your international travel and export controls.
If you have any questions about the export or use of equipment and technologies by you or your students and staff. Other internet resources listed below may be of help as you consider whether these rules might apply to your research activities.