Export control laws (e.g., EAR and ITAR) regulate certain technologies, information, and commodities intended to be transferred overseas to anyone, including U.S. citizens, or to foreign nationals within the United States. The following Q&A may help clarify some of these requirements.
1. What is an export?
Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, software, or technology (including information, technical data, or assistance), is an export. In addition, any such transfer within the United States to any foreign national is considered a “deemed export”.
2. What are Export Controls?
Export Controls regulate the flow of certain equipment, components, and software, including related information and technology, to foreign nationals anywhere in the world for the purpose of protecting US interests and personnel; or furthering US foreign or public policy. The term applies to video and audio disclosures, as well as to transfers and disclosures of controlled items and technology to a foreign person in this country (“deemed exports”). The term also applies to re-exports or retransfers of controlled items for a use, end user, or foreign destination not previously authorized (e.g., an item shipped from one foreign country to another).
3. What is excluded from Export Controls?
In general, there are three primary exclusions from export controls:
- Published items and information (with the exception of certain encryption items)
- Instructional exception for our usual academic offerings
- Fundamental research
4. What is Fundamental Research?
Defined as “basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons…” Note that these provisions may not apply to certain types of encryption software.
5. Should I be concerned about foreign students in my class?
No. An exclusion from export control regulations applies to information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities; or information in the public domain; exchanged in teaching catalog courses or provided in associated teaching laboratories of academic institutions.
6. Would this be different if I were teaching the same material abroad?
No. For additional helpful information, Supplement No. 1 to 15 CFR Part 734 of the Export Administration Regulations (EAR) which contains additional questions and answers frequently raised by the regulations that apply to civilian or “dual use” technologies.
7. What is considered published information as used in the answer to question 3 above?
Published information includes any publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution. Published, or ordinarily published material, also includes material: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or must be presented for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
8. What is public domain and why is it important?
Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published. To fall under this definition, there are a number of conditions which demonstrate public availability which are enumerated in the EAR. With the exception of certain encryption technology, public domain information is excluded from export controls.
10. If a license is needed, what is the process?
Brown has designated the Vice President for Research as its “empowered official” for export control issues. He/She will arrange for appropriate support to address export control and license issues within the University and, where necessary, outside the University. It may normally take 4-6 months to secure a license to export controlled materials from the U.S. or to transmit them to a non U.S. citizen or permanent resident within the U.S. Any export control issues, questions, or license requests may be addressed by Keri Godin, Director of Research Integrity, (401) 863-1803, or, by email to Keri_Godin@brown.edu.