Export Controls: Beyond the Fundamental Research Exemption

1. Export Controls: Beyond the Fundamental Research Exemption RFC Quarterly Meeting August 27, 2009 Duke University

2. Update on the Roth Case • Dr. Roth of the University of Tennessee – Knoxville was convicted of export control violations • He shared DARPA research with a Chinese national and went on a lecture tour in China • He was sentenced to 4 years in prison followed by 2 years of supervised release • Conviction is being appealed “I could hardly believe it,” Roth said Tuesday, from his vacation home in Maine. “This whole imbroglio has such heavy police state overtures.”

3. University Policy It is the policy of Duke University to fully abide by federal and state laws and regulations, including the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR) and other bodies of export regulations … University research can remain compliant with export control laws under the Fundamental Research Exemption by ensuring that it meets the definition of fundamental research, which is research that is conducted with a clear intent to publish, and to do so without restriction, and research that does not voluntarily exclude the participation of foreign nationals.

4. Export Control Basics Goods Physical shipments Re-Exports (sending to one country knowing that they will send it to another) Exposing controlled goods to foreign nationals Technology Sending it overseas Orally disclosing technical data to a foreign national Visually exposing controlled technology to foreign nationals Sharing information that is controlled overseas

5. Exempt from Export Controls Public Domain Academic Catalog Courses “Fundamental Research” – Research in basic or applied sciences or engineering where the resulting information is intended to be published and broadly shared in the community; and which has no national security restrictions imposed on the research.

6. Fundamental Research Results Exemption Fundamental Research conducted by accredited universities is exempt if: Basic and applied research in science and engineering; and Normally published and there are no restrictions or approvals required on the publishing of the research results; and No restrictions on the access to research results (including foreign national restrictions)

7. An important concept of fundamental research Sponsor Gov’t Open research American P.I. Fundamental Research RESULTS Controlled Information Technology Control Plan EXPORT CONTROLLED PUBLIC DOMAIN

8. Technology Control Plans It is common for a sponsor to provide export controlled information or software to a university in support of fundamental research. This data can not be incorporated into the published research results This information can not be shared with foreign nationals even if they are participants in the fundamental research project. If a grant or contract states that a Principal Investigator or research assistant will receive export controlled data from a sponsor, the Office of Export Controls will try to contact the Principal Investigator to establish a Technology Control Plan. Depending on the situation, the Technology Control Plan will inform the signatories of their limitations in sharing export controlled data.

9. Fundamental Research The following NEVER qualify for the fundamental research exemption: Physical goods Software Encryption Research when there is no intention to publish the results Research conducted out of the United States

10. So your department’s research qualifies for the Fundamental Research Exemption Export Controls is covered? Right? NO

11. Physical Exports Contracts / Sales Donations Laboratory / Office Move Hand carry (including laptops) Research Equipment The notorious “Fed Ex” package An international shipment to a US person is still an export A domestic shipment to a foreign national may still be an export

12. Physical Exports Oscilloscopes Fermenters Cryogenic Freezing Equipment Centrifuges (High Tech) Biological Safety Cabinets Radiation Protection Equipment Toxic Detection Equipment Decontamination Equipment

13. Physical Exports Biological Materials that require an export license All Select Agents All materials designed to damage human health or livestock Additional list of viruses, bacteria, mycoplasma, rickettsiae, and toxins Incendiary, nerve, and vesicant agents ALL VACCINES, ANTIDOTES, AND DIAGNOSTICS FOR THE ABOVE (e.g., barrier cream) ALL PROTECTIVE EQUIPMENT DESIGNED TO PROTECT AGAINST SUCH THREATS

14. Physical Exports Re-exports Sending equipment overseas? In some circumstances, an End-User Certificate can protect a university from a re-export violation When the receiver is not well known (first-time transaction) When the recipient is in a country known to trade with US-sanctioned countries When the goods are otherwise highly controlled An End User Certificate certifies that the receiver is aware that the goods may not be re-exported to another country. Contact the Office of Export Controls for assistance

15. Physical / Technology Exports Exposure of Goods to Foreign Nationals You have a clean contract on the fundamental research of lightning The P.I. purchases a commercial camera attachment which allows pictures of the night sky to be taken during thunderstorms The night vision attachment was developed for the military Foreign nationals are permitted to participate in the project Foreign nationals are NOT permitted to use the night vision camera attachment

16. Software Software used specifically for controlled technology is probably also controlled e.g., software designed or modified to enable equipment to detect nuclear, biological and chemical agents is controlled, as is the equipment itself. All software designed or developed for the military or NASA are controlled Many factors to consider: Source Code vs Object Code Mass Marketed Level of Control (ITAR vs EAR) Contact your Export Controls representative Generally speaking, providing software to a foreign national in object code only is not an export

17. Encryption technology Different set of regulations on software with embedded encryption E.g., Mozilla Firefox Different levels of control (exempt, notification, licenses) Level of control is dependant upon several factors (country, ENC exemption, who is receiving it and where) Rule of thumb: If a contract says that software is going to be sent or made available overseas, contact your Export Controls representative

18. Conferences Do: Participate in conferences that are open to the public And at which attendees are permitted to take notes Don’t: Participate in conferences that are “closed” to the public, Where note taking is not permitted, or The cost to attend is far greater than the cost to organize the event. Sign any Dept. of Defense forms

19. Research Conducted Outside of the US Research conducted outside of the United States does not qualify for the Fundamental Research Exemption For example: Your P.I. is working on a fundamental research project on detecting internal injuries in combat A portion of the research will be conducted outside the United States Despite the fundamental research exemption, you P.I. may need a license to conduct the research at the foreign facility

20. International Travel Contact Export Controls prior to any interaction with OFAC sanctioned countries: Cuba North Korea Iran Syria Sudan • Belarus • Burma • Congo • Iraq • Ivory Coast (Cote d’Ivoire) • Liberia • former Yugoslavia • Zimbabwe

21. Collaborating with foreign nationals of sanctioned countries* Normal editorial activities that occur during the peer review process do not constitute prohibited activities Provided that no substantive or artistic alterations or enhancements of the manuscript result. Collaborative research activities MAY constitute a prohibited activity. *Strong sanctions: Cuba, Iran, North Korea, Syria, Sudan *Other sanctions: Belarus, Burma, Congo, Ivory Coast, Liberia, (former) Yugoslavia, Zimbabwe

22. Overseas Cash Economies Carrying cash in or out of the US? Anything over $10,000 must be reported to the US government Foreign countries may have limits on the amount of foreign currency (including $USD) that may be taken in or out of the country

23. Anti-Boycott Language It is illegal for a US person or a person in the US to accept terms which support a boycott of Israel The law also requires US persons to report any such language to the US government

24. Foreign Corrupt Practices Act It is illegal to provide any benefit, directly or indirectly, to a foreign government official, foreign political party, or foreign political candidate for the purpose of obtaining or securing business Some activities to expedite the process of conducting business are allowable It is equally illegal to use any third party with knowledge that the benefit will be provided to a foreign official, party, or candidate

25. Dissertations Keep in mind that if the research is sponsored by the US government or a private firm, they may require a review of the dissertation prior to it being published Dissertations that contain data or material that was generated pursuant to such a grant or contract may be “embargoed” if the dissertation is subject to review by the sponsor or grantor prior to publication

26. Legal References to Export Controls Red Flags “Export Controls” ITAR (22 CFR …) International Traffic in Arms Regulations EAR (15 CFR …) Export Administration Regulations OFAC (Office of Foreign Assets Control) “Foreign Nationals” “May not be exported” Citizens or nationals of Country Group X:# Department of Defense Forms (DD###)

27. Summary Anything leaving the country Any technical data leaving the country Sharing technical data with foreign nationals Contact: Mark Stomski 919-668-2711 export@duke.edu http://ors.duke.edu/export-controls