Export Control Laws: Digital Exports And Their Restrictions

Export control laws are federal regulations that govern the transfer of goods, technology, software, services, and funds from one country to another. They apply to both physical and electronic exports, including oral, written, electronic, or visual disclosures of controlled information. These regulations are designed to protect national security interests, prevent the proliferation of weapons, and advance foreign policy objectives. In the United States, for example, the Bureau of Industry and Security (BIS) within the Department of Commerce administers and enforces export control laws, ensuring compliance through site visits and other measures. These laws apply to both US citizens and non-citizens within the country, and violations can result in severe penalties, including fines and jail time.

Verbal, written, electronic, or visual disclosures

Export control laws are federal regulations that govern the transfer or disclosure of goods, technology, software, services, and funds from the US to foreign countries, persons, or entities. These laws apply to both physical exports and electronic or digital exports.

For example, disclosing research activities and results to a foreign researcher or student in a US laboratory is considered a deemed export and is subject to the same regulations as exporting goods or technology out of the country. This is to prevent the unauthorized transfer of sensitive information and protect national security.

To comply with export control laws, organizations must monitor, control, and report the transfer or export of controlled technical data. This includes automating the handling and export compliance of controlled technical data to ensure it is not accessed or shared remotely by unauthorized individuals or entities.

Export control licensing

Export control laws apply to the physical and electronic export of goods, technology, software, services, and funds. This includes oral, written, electronic, or visual disclosure, shipment, transfer, or transmission.

In the US, the Bureau of Industry and Security (BIS) is responsible for implementing and enforcing the Export Administration Regulations (EAR). EAR regulates the export, re-export, and transfer of items with commercial uses that can also be used in conventional arms, weapons of mass destruction, terrorist activities, or human rights abuses, and less sensitive military items. EAR covers items in the US, certain items located outside the US, and certain activities of US persons. The EAR's Commerce Control List (CCL) can be used to determine whether an item has an Export Control Classification Number (ECCN). If an item is not listed on the CCL, it is designated as EAR99, and most EAR99 commercial products will not require a license to be exported. However, depending on the destination, end user, or end use, an EAR99 item may require a BIS export license.

The application for an EAR license is a detailed summary of the item, including its intended use and the identities of individuals and entities who will have custody of it. The application process can take up to 90 days.

The UK also has export control licensing requirements for certain goods, including military, defence, or security-related goods, as well as Dual-Use goods that can be used for both civil and military purposes.

International travel

When considering the application of export control laws, it is important to understand that they extend beyond physical exports and can indeed apply to international travel. This means that when travelling across borders, individuals must be mindful of the technology, data, and information they carry or have access to. Export control regulations can apply to the transfer of controlled information, software, technology, and technical assistance to foreign nationals within the United States or abroad.

The key aspect to consider is the release or disclosure of controlled information or technology to a foreign national. This could occur through various means, such as visual inspections, oral exchanges, or the application of controlled technology in a foreign country. For example, a technical demonstration or training session conducted abroad that involves controlled technology would fall under the purview of export control laws.

Additionally, the electronic or digital transmission of controlled information or software to a foreign country is also subject to these laws. This includes email exchanges, remote access to controlled data or systems, or even cloud-based collaborations. With the prevalence of remote work and digital communication, it is crucial for travelers to be aware of the restrictions and obtain the necessary authorizations before engaging in such activities.

When traveling internationally, it is the responsibility of the individual to ensure compliance with export control regulations. This includes understanding the nature of the information, technology, or software they possess or have access to, and being aware of the restrictions applicable to the destination country. In some cases, a license may be required to take certain controlled items or information out of the country, and travelers should seek guidance from their organization's export control officer or legal counsel to ensure they have the necessary authorizations.

Deemed exports

In the United States, deemed exports are governed by the Export Administration Regulations (EAR) and enforced by the Bureau of Industry and Security (BIS) within the Department of Commerce. The BIS is responsible for implementing and enforcing the EAR, which regulates the export, re-export, and transfer of items with commercial uses that may also have military or other sensitive applications.

To comply with deemed export regulations, organisations may need to obtain a "deemed" export license from the BIS before releasing controlled technology to a foreign person. This includes transfers of technology to foreign nationals employed by a US company, as well as sharing with foreign companies or individuals overseas. The EAR defines a "release" of "technology" or source code, and specifies activities that are not considered "deemed" re-exports.

There are exemptions to the "deemed" export rule. For example, organisations with individuals who have permanent residence status, US citizenship, or "protected individual" status are typically exempt. Additionally, fundamental research, defined as basic and applied research in science and engineering where information is ordinarily published and shared within the scientific community, is generally exempt from licensing requirements.

Sanctions and embargoes

The scope of sanctions can vary, ranging from comprehensive to limited restrictions. For instance, country-based sanctions may target nations like Iran, Cuba, certain regions in Ukraine, Syria, and North Korea. On the other hand, list-based sanctions focus on specific issues such as counter-terrorism, non-proliferation, and counter-narcotics trafficking.

To ensure compliance with sanctions and embargoes, the OFAC maintains lists of restricted entities and individuals. These include the Specially Designated Nationals and Blocked Person List, which identifies individuals and entities with whom transactions are prohibited. Additionally, the Consolidated Screening List (CSL) is a comprehensive resource that consolidates multiple export screening lists, aiding industries in screening potential parties for regulated transactions.

The consequences of violating sanctions can be severe and include administrative, civil, and criminal penalties. For instance, individuals may face substantial fines or imprisonment, while institutions may face debarment from government contracts.

It is important to note that sanctions and embargoes are dynamic and subject to change over time. Therefore, staying informed about the latest restrictions and regulations is essential for maintaining compliance.

Frequently asked questions