Subject to Export Controls

The determination of whether university research is "subject to export controls" can often hinge on whether it qualifies for the Fundamental Research Exclusion (FRE). Fundamental research is generally viewed as "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community." It is often distinguished from proprietary research and industrial development, design, production and product utilization. If the research is restricted by the sponsor, for proprietary or national security reasons, it will not likely be treated as FRE.

Ensuring that your research meets the requirements for FRE is best accomplished through a lifecycle approach that begins with the research proposal. Circumstances that prevent FRE fall along a few basic avenues as follows:

• Does the sponsor prohibit foreign involvement in the research, either expressly or by reference? Prohibitions on foreign participation will generally preclude the application of FRE, at least until such prohibitions or restrictions can be removed, making any technology or software that results from the research subject to export controls.
• Will a significant part of your research be conducted outside of the United States? FRE requires the research to be conducted largely in the United States. If your research does not meet this requirement, then the resulting technology or software may be export controlled, in which case you may have an export controls violation simply by having such occur in a foreign country.
• Does the researcher have motives or incentives not to publish the results, or otherwise make them publicly available? FRE requires an intent to publish the research. There is a general presumption that university researchers intend to publish. However, if a researcher has a financial motive not to publish discoveries that come from the research—e.g., an undisclosed conflict of interest—that presumption can be nullified and the resulting technology can be subject to export controls.
• Does the sponsor, or a third party, limit the publication of the research results, either by controlling the actual content or through a right of review lasting longer than 30 days?
• Does the research involve the design and development of equipment, materials, or software with specific commercial applications?
• Does the research use or seek to develop technology that has actual, intended, or potential military applications? Military technology is regulated under the International Traffic in Arms Regulations (ITAR), which has less flexibility in the application of FRE, placing strict limits on access to the research materials, and how the resulting data must be stored and shared.

Technology that comes from research or other information that has already been published, or otherwise made available to the public, is not typically subject to export controls. This exemption has nuances, the most important being that if the technology would otherwise be controlled under the ITAR, the act of publishing it will likely constitute an export in itself, which if conducted without registering with the Department of State, can incur penalties, both civil and criminal. The act of publication can be informal, including unlimited distribution at a conference, trade show, or seminar that is generally accessible to the interested public. Information in a patent application is considered published when it is submitted to the U.S. Patent and Trade Office for review.

Technology and information that is released to participants during an academic course, and/or teaching lab associated with such course, is generally not subject to export controls. As with other exemptions, there are a few aspects to confirm prior to action; for example, the course must be a catalog listed course open to any qualified student. If all conditions are met, a faculty member teaching a course at the University may discuss export-controlled technology in the classroom or laboratory without an export license, even if foreign national students are enrolled in the course. The exclusion, however, does not alleviate liability for disclosing information that is classified by the federal government, or controlled as sensitive under other areas of law.