Export Controls on Campus A Learning Experience

By: Bruce H. Leeds Senior Counsel, Braumiller Law Group

Colleges and universities – Ivy covered buildings with students and faculty engaged in academic pursuits.

Colleges and universities – Hotbeds of export control concerns.  What??

The halls of academia have increasingly become involved with export control issues.  There are several ways that universities are potentially affected by export controls, including:

  • Having non-U.S. faculty and students
  • Receiving research contracts from the U.S. Government
  • Holding conferences and seminars
  • Conducting research involving controlled technologies

Let’s look at some examples of potential risk areas on campus:

  • A university hires a German professor on a part-time visiting scholar basis. The professor participates with other faculty members and students on a high-tech research project. 
  • The university receives a contract from the Department of Defense for a project involving military applications of certain lasers
  • A university holds a conference on emerging satellite technology and invites scientists, engineers, and professors from other universities and countries to attend.

Universities now have students from all over the world.  The students may study a variety of subjects, among them science, engineering, physics, and computer science.  In doing so the students will not only be reading textbooks and listening to professors, but also carrying out assignments involving research and collaborating with faculty and other students in research projects. 

There are several regulatory definitions that may apply to these university activities:

Technical data: Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation.

Foreign person:  Any natural person who is not a U.S. person.  A U.S. person is a U.S. citizen, permanent resident alien (“green card” holder), or a protected person (certain individuals seeking asylum); everyone else is a foreign person.

Deemed export:  Releasing or otherwise transferring technical data to a foreign person in the United States.  Any release in the United States of technical data to a foreign person is deemed to be an export to all countries in which the foreign person has held or holds citizenship or holds permanent residency.

These definitions are from the International Traffic in Arms Regulations (ITAR), but the Export Administration Regulations have very similar definitions.

A non-U.S. student or faculty member not having a green card is a foreign person.  If he or she is exposed to controlled technical data at the university it is a deemed export.  A similar set of rules would apply to a non-U.S. attendee at a conference where controlled technical data is presented.  A violation of these rules can lead to export penalties. 

A well-known example of this involved Professor John Reese Roth of the University of Tennessee.  Professor Roth was assigned to a U.S. Air Force contract awarded to the university.  The contract involved ITAR controlled technical data.  Despite being warned, Professor Roth involved Chinese and Iranian students in the project.  He was subsequently charged with violating the ITAR and received a four-year prison sentence.  This case goes to show that the U.S. Government takes this seriously.

Many universities state that they are only involved in fundamental research.  Here is what the Bureau of Industry & Security says about fundamental research:

“Fundamental research” means research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons. It is distinguished from proprietary research and from industrial development, design, production, and product utilizations, the results of which ordinarily are restricted for proprietary and/or specific national security reasons. Normally, the results of “fundamental research” are published in scientific literature, thus making it publicly available.  Research which is intended for publication, whether it is ever accepted by scientific journals or not, is considered to be “fundamental research.” A large segment of academic research is considered “fundamental research.” Because any information, technological or otherwise, that is published is not subject to the Export Administration Regulations (EAR) (except for encryption object code and source code) and thus does not require a license, “fundamental research” is not subject to the EAR and does not require a license.

In order to be fundamental research and exempt from export controls and licenses, the research must:

  • Be published and shared broadly in the research community
  • Not subject to restrictions for proprietary or national security reasons
  • Intended for publication in scientific journals

Anything claimed to be fundamental research must meet these criteria.  Research on a specific technology that is proprietary and export-controlled cannot be fundamental research.  Research into export-controlled technology and involving foreign persons or institutions will require an export license in advance.

What about technical and scientific conferences and seminars?  Unless attendance is restricted to U.S. persons only, the assumption is that there will be non-U.S. persons in the audience.  If the speakers present any export-controlled technical data, it is considered “exported” to the home countries of the non-U.S. persons in the audience.

In view of all this many universities have established export control functions that can monitor projects and presentations, apply for licenses where required, or restrict research and sharing where necessary.

Bottom line – if you are dealing with a university involving any sort of technical information be sure to study up on the export regulations.