"Deemed Export" is where a foreign national on United States (U.S.) soil may be exposed to, or have access in any manner to, an export-controlled item or export-controlled software or information.
"Defense article" means any item or technical data designated in 22 CFR 121.1 (the U.S. Munitions List or “USML”); this includes most space-qualified hardware. The policy described in 22 CFR 120.3 is applicable to the designation of additional items. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated on the USML. It does not include basic marketing information on function or purpose or general system descriptions.
"Defense service" is a term used by the State Department. It is defined as
(1) the furnishing of assistance (including training) to foreign persons, whether in the United States or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, operation, demilitarization, destruction, processing, or use of defense articles.
(2) the furnishing of technical data controlled by the ITAR to foreign persons, whether in the United States or abroad.
(3) the provision of military training to foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad by correspondence courses; technical, educational or informational publications and media of all kinds; training aid; orientation; training exercise; and military advice.
Items with both commercial and military applications, including those which were designed with no intrinsic military function but which may have a potential military application (i.e., computers, solar cells, optical instruments, light aircraft, etc.).
Life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products or technology that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security.
"Educational information" is a phrase used by the Department of Commerce in §734.9 of the EAR. "Educational information" is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions. Certain types of information related to encryption software cannot be considered "educational information" and therefore are subject to the EAR even if they are released "by instruction in catalog courses and associated teaching laboratories of academic institutions." Items on the ITAR/USML are not covered under this exclusion, as such instruction qualifies as a defense service.
The ITAR contain similar provisions, in which the following are excluded from the "technical data" definition:
-general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities
-information in the public domain as defined in § 120.11
-basic marketing information on function or purpose
-general system descriptions of defense articles
Computer programs containing an encryption source code that has been compiled into a form of code that can be directly executed by a computer to perform an encryption function. [EAR 722]
Computer programs that provide capability of encryption functions or confidentiality of information or information systems. Such software includes source code, object code, applications software, or system software. [EAR 772]
A precise set of operating instructions to a computer that, when compiled, allows for the execution of an encryption function on a computer. [EAR 772]
"Export" means to send or take controlled tangible items, software or information out of the United States in any manner, to transfer ownership or control of controlled tangible items, software or information to a foreign person, or to disclose information about controlled items, software or information to a Foreign Person.
A "Foreign Person" is anyone who is not a US person. A Foreign Person also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the U.S. Foreign Persons may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.
"Fundamental Research" is basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons. The conduct, products, and results of Fundamental Research are to proceed largely unfettered by deemed export restrictions, meaning the results will be published and made freely available to the scientific community. Research whose results carry dissemination or Foreign Person access restrictions will not qualify as Fundamental Research for purposes of the export control regulations.
Because export regulations expressly recognize that Fundamental Research is excluded from deemed export controls or export licenses, other government approval is generally not needed before involving foreign nationals in Fundamental Research activity at UCB. However, such research may give rise to export issues if the primary research is to be conducted outside of the U.S. or if it requires Foreign Person access to ITAR (International Traffic in Arms Regulations) export control-listed technical information or software code provided by third parties such as corporations, commercial vendors, or government collaborators.
Information that is in the “Public Domain” means information that is published and that is generally accessible or available to the public:
(1) through sales at newsstands and bookstores;
(2) through subscriptions that are available without restriction to any individual who desires to obtain or 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, generally accessible to the public, in the U.S.;
(7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approved by the cognizant U.S. government department or agency; and
(8) through fundamental research.
The citation for the official definition of “Public Domain” is 22 CFR § 120.11.
According to § 120.10 of the ITAR, “technical data” is defined as follows:
1. Information, other than software as defined in § 120.10(a)(4), that 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 § 121.8(f) directly related to defense articles.
“Technical data” does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
Specific information necessary for the “development,” “production” or “use” of a product. The information takes the form of “technical data” or “technical assistance.” (EAR 772).
A "U.S. Person" is a citizen of the United States, a lawful permanent resident alien of the U.S. (a "Green Card" holder), a refugee or someone in the U.S. under political asylum protection or amnesty. U.S. Persons also include organizations and entities, such as universities, incorporated in the U.S. The general rule is that only U.S. Persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.