Overview

Export control laws are designed to meet international treaty obligations, protect national security interests, promote foreign policy and protect the country’s economic viability. More specifically, export control laws regulate the “export” or “re-export” of products, software, services and technologies, including those with “dual use” applications (primarily commercial in nature but may have military or proliferation applications), and define what a university can export, where it can export, who can receive it and how it can be used.

Additionally, U.S. export controls regulate the release or transfer of technology or technical data to foreign nationals in the U.S. This type of transfer, referred to as a “deemed export”, is deemed to be an export to the individual’s home country, even though the release occurs entirely within the United States.

Under the “deemed export rule”, the term "release" is broadly defined and can occur through:

• Visual inspection (including via computer networks),
• Discussion or conversation,
• The application outside the U.S. of personal knowledge, or
• Technical experience acquired in the United States.

In some cases, a U.S. government export license is required prior to an export or release of technology or technical data to a foreign national. The license requirement is dependent on two factors:

1. The nature of technology that will be exported or released, and
2. Destination or home country.

U.S. export control requirements are complex, especially in a university setting. For example, universities may work with a wide range of technologies in various sponsored and non-sponsored (i.e., unfunded) research projects. Though universities may be able to use certain exclusions or exceptions from U.S. export control requirements (e.g., Fundamental Research or Publically Available/Public Domain), the use of such exclusions may be unavailable where the activity or project is subject to publication or other restrictions.

Further, enforcement of U.S. export control regulations continues in both industry and university settings.  Violations of these regulations may result in criminal penalties, civil sanctions, and may affect future research opportunities of both the university and individual.  Penalties include fines up to $1,000,000 and 20 years imprisonment in the most egregious cases.

Exclusions & Exemptions from Export Controls

Technology or software that is “publicly available” is typically not subject to U.S. export controls, including the deemed export rule. This includes technology or software that:

• Is already published or will be published (referred to as the “Publicly Available/Public Domain Exclusion”);
• Arises during or results from “fundamental research” (referred to as the “Fundament Research Exclusion”); or
• Is educational as defined in the regulations (referred to as the “Education Exclusion”).

Each of these exclusions and some potential limitations are described in greater detail below.

Publicly Available/Public Domain Exclusion

This exclusion is defined as technology and software information that is already published or will be published and is not subject to export controls. Information is “published” when it becomes generally accessible to the interested public in any form, including:

• 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 either free or at a price that does not exceed the cost of reproduction and distribution;
• Readily available at libraries open to the public or at university libraries;
• Patents and open (published) patent applications available at any patent office; or
• Release at an open conference, meeting seminar, trade show or other open gathering.

Limitations: It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.

Fundamental Research Exclusion

Fundamental research is defined as basic and applied research in science and engineering conducted at accredited U.S. institutions of higher education 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, or production where the results are typically restricted for proprietary reasons or specific national security reasons.

Information resulting from “fundamental research” is typically excluded from export controls. As a result, a license is not required to release information that qualifies as “fundamental research” to a foreign national.

Limitations: The Fundamental Research Exclusion may be unavailable if an employee or the university accepts any restrictive clause or condition that:

• Forbids or restricts the participation of foreign nationals;
• Gives the sponsor a right to approve publications resulting from research;
• Restricts access to and disclosure of research results; or
• Otherwise violates the openness in research.

Education Exclusion

The educational exclusion includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions. In most cases, a license is not required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities.”

Limitations: It is important to note that this exclusion may not apply to technology or software related to defense, military, space applications, or certain encryption software.