Export-Controlled Information

Export-controlled information or material is any information or material that cannot be released to foreign nationals or representatives of a foreign entity, without first obtaining approval or license from the Department of State for items controlled by the International Traffic in Arms Regulations (ITAR), or the Department of Commerce for items controlled by the Export Administration Regulations (EAR). Export-controlled information must be controlled as sensitive information and marked accordingly. A large, frequently updated database of information on export regulations is available at www.bis.doc.gov.

One objective of the ITAR and EAR is to prevent foreign citizens, industry, or governments, or their representatives, from obtaining information that is contrary to the national security interests of the United States.

Different laws and regulations use different definitions of a U.S. person, U.S. national, and foreign national. This is a source of considerable confusion in implementing international security programs.

The rules are especially confusing when dealing with an immigrant alien who possesses a green card for permanent residence in the U.S. For the purpose of export control regulations, such an individual is a "U.S. person" and can be allowed access to export-controlled information without an export license. If the export controlled information is classified, however, the regulations for release of classified information apply. According to the National Industrial Security Program Operating Manual, a permanent resident with a green card is still a foreign national and not a "U.S. person." Therefore, such an individual cannot have access to classified export-controlled information.

Statutory/Regulatory Responsibilities & Obligations

Access to Export-Controlled Information

  Export-controlled information may be disseminated only to U.S. citizens or immigrant aliens. It is important to note that discussion with a foreign national in the United States, or a person "acting on behalf of a foreign person," constitutes an "export" if it reveals technical information regarding export-controlled technology.

Marking Export-Controlled Information

All documents that contain export-controlled technical data must be marked with the following warning:

WARNING - This document contains technical data whose export is restricted by the Arms Export Control Act (Title 22, U.S.C., Sec 2751, et seq.) or the Export Administration Act of 1979, as amended (Title 50, U.S.C., App. 2401 et seq.). Violations of these export laws are subject to severe criminal penalties.

Safeguarding Export-Controlled Information

The possessor of export-controlled information must deny the opportunity for access to foreign nationals or any unauthorized person. Records must be maintained for all exports of items on the Department of Commerce Control List for a period of at least two years. Records of the export of items listed on the ITAR must be maintained for five years.

Export-controlled information may be put on an Internet web site only if access to the site is limited to a specific target audience that is authorized to have the information and the information is encrypted. See Pre-Publication Review of Web Site Content.

Department of Defense technical data subject to export controls shall be safeguarded as described in Technical Data.

Enforcement

The penalty for unlawful export of items or information controlled under the ITAR is up to 2 years imprisonment, or a fine of $100,000, or both. The penalty for unlawful export of items or information controlled under the EAR is a fine of up to $1,000,000 or five times the value of the exports, whichever is greater; or for an individual, imprisonment of up to 10 years or a fine of up to $250,000 or both.

Legal & Regulatory Authorities
Executive Order 12923 Continuation of Export Control Regulations, 30 June 1994.
Title 22 USC 2778 et seq. – Arms Export Control Act.
Title 50 USC 2401 et seq. – Export Administration Act of 1979 (as amended).
Title 50 USC Appendix, Section 10 – Trading With the Enemy Act of 1917.
Title 15 CFR Export Administration Regulations, part 770.
Title 15 CFR part 779 Technical Data.
Title 22 CFR (Dept. of State) Subchapter M, The International Traffic and Arms Regulation (ITAR) Part 121-130.

Related Topics: Illegal Technology Transfer, Pre-Publication Review of Web Site Content.

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