Export Controls: Definitions

Export: This term is defined very expansively in the export control regulations. Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software, or technical data to any foreign national; or (4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. Reference should be made to the official definition of export under the EAR and ITAR when determining whether a specific act constitutes an export. As "export" is currently defined, it precludes a foreign national (either faculty or student) from participating in activities that involve covered technology without first obtaining a license from the appropriate government agency.

Deemed Export: An export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the United States. See 15 CFR §734.2(b)(2)(ii) (EAR).

Defense service (ITAR at 22 CFR §120.9): The furnishing of assistance, including training, to foreign persons, whether in the US or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles (those listed on the USML). Furnishing any technical data controlled by ITAR to a foreign person in the US or abroad also constitutes a defense service under the regulations.

Foreign Persons: A foreign person is any natural person who is not a lawful permanent resident as defined in 8 U.S.C. §1101(a)(20). It also includes any foreign corporation, business association, partnership, trust, society, or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions).

Fundamental Research: Includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research which results in information that is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. "Fundamental research" is defined in the EAR at 15 CFR §734.8 and in ITAR at 22 CFR §120.11.

Public Domain: Information that is published and generally accessible to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions available without restriction to anyone who may want to purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition that is generally accessible to the public and is in the United States; (7) through public release (i.e., unlimited distribution) in any form (not necessarily published) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research. See 22 CFR §120.11.

Technical data ( ITAR at 22 CFR §120.10):  (1) Information, other than software as defined in 22 CFR §120.10(4), 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 and documentation.  (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; (4) Software as defined in 22 CFR §121.8(f) directly related to defense articles.  Excluded from this definition is information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in 22 CFR §120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.