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

US Export Control Laws 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, 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 § (a)(8) - EAR: 15 CFR § OFAC: rule on “information and informational materials” [e.g., 31 CFR § (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 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