Presentation to Academic Senate Export Controls Robert Bienkowski 21-Feb-17 1
In a Nutshell If you want to: share certain kinds of information or send certain things to certain foreign persons, institutions or countries, then you may need a license from the government. certain means being on a list 2
Three sets of regulations govern the lists EAR (Export Administration Regulations; Dept Commerce) deal with “dual use” items that have military and nonmilitary uses ITAR (International Trafficking in Arms Regulations; Dept State) deal with things that have military uses OFAC (Office of Foreign Assets Control Sanctions; Dept Treasury) deal with persons, places such as companies or institutes, and countries that are restricted from receiving any exports without a license 3
Purpose of the regulations Protect the interests of the United States by: 1. Controlling proliferation of certain military technologies National 2. Controlling proliferation of some nonmilitary technologies Security that may have military applications (“dual use”) Economics 3. Protecting US commercial technology advantages 4. Enforcing State Department opposition to flow of Foreign money to embargoed countries, entities and persons Policy 4
The regulations apply to • Individuals • Businesses • Nonprofit organizations such as • NGOs • research organizations • universities 5
The regulations are not widely understood… General Mike Flynn (former National Security Advisor) was surprised to learn that the State Department and Congress play a pivotal role in foreign arms sales and technology transfers. NY Times, 12-Feb-17 When Dennis Rodman gave the North Korean leader unlicensed luxury gifts, he may have been in direct violation of the 2010 International Emergency Economic Powers Act. ecustoms.com/blog 6
Universities have a Security Blanket - The Fundamental Research Exemption (FRE) Research results generated during the course of conducting fundamental research are exempt from the requirements of export control laws and regulations. Fundamental Research is "basic and applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community.“ Almost all the research conducted at CMU qualifies for the FRE. There is nothing intrinsically wrong with conducting research that is not covered by the FRE. You just have to take certain precautions! https://www.princeton.edu/orpa/compliance/export-controls/fundamental-research/ 7
Deemed Exports – The Export Control Minefield Release of controlled technology to a foreign person in the U.S. is "deemed" to be an export to the person’s country of nationality. Typical organizations using deemed export licenses include universities, high technology research and development institutions, bio-chemical firms, as well as the medical and computer sectors. So, a professor giving a graduate seminar about her research on nanotubes that could be weaponized may be exporting information. 8
Examples of university export violations University of Massachusetts at Lowell (2013) $100,000 penalty from Bureau of Industry and Security (BIS) for shipping atmospheric sensing equipment to an institute in Pakistan. The exports were not controlled, but the recipient organization was on the BIS Entity List. University of Michigan (2013) Mohamad Nazemzadeh, who was a Research Fellow in the Neurology Department at the time of his arrest, was prosecuted for sending a medical device to Iran. NYU School of Medicine (2013) Three researchers were charged with sharing non-public information with Chinese companies about their work conducted through an NIH grant to develop MRI technologies. Georgia Institute of Technology (2009) Allowed Internet users in 36 countries, including China and Iran, to view sensitive information in a course intended only for federal employees and contractors. This course included 14 PowerPoint slides and was uploaded to Georgia Tech's servers. State Dept determined that violations had occurred. U niversity of Tennessee (2009) Professor John Reece Roth was sentenced to 4 years in prison for violating the Arms Export Control Act by conspiring to illegally export technical information. Texas Tech University (2004) Professor Thomas Campbell Butler, MD, was sentenced to 2 years in prison for illegally exporting the Yersinia pestis (bacterium that causes human plague), which is a controlled item under the EAR and cannot be exported without export licenses. 9
Lessons for universities • On the one hand , penalties can be severe and embarrassing • On the other hand , there have been very few incidents in 13 years 10
What is the risk of CMU investigators violating Export Control Regulations? The risk is probably small because: • CMU has much less external funding than the cited universities (all R1) • No concerns from our recent survey of labs for agents on the DURC list • Very few CMU research contracts have restrictions that negate the FRE • No classified research at CMU 11
But there are matters for concern at CMU Faculty travel abroad Where they go; what they spend (without a license) What they take with them (especially laptops, tablets, and software) Exports to research collaborators in other countries Equipment, reagents and ideas Visiting researchers What they can see and hear (Deemed exports) Foreign students What projects they can work on Contracts with restrictions that negate the FRE Publication Student travel abroad The unfortunate case of Glenn Duffie Shriver from GVSU 12
So, developing an Export Compliance Program seems prudent Elements of a compliance program 1. Write and publish an export control compliance policy 2. Identify an office to: 1. Conduct a needs analysis/risk assessment 2. Develop SOPs 3. Offer training 1. Who needs training 2. What level of training is required 4. Monitor effectiveness of the program 13
We do not have to reinvent the wheel Institutions in our peer group (eg, Western) have developed very credible export control programs. Many resources are available on the web : • Basic information • Training through CITI Program • SOPs University of Pennsylvania has outstanding resources on its website. 14
Returning to the Nutshell Four areas of concern in Export Control can be addressed with modest additional effort and expenditure: • Vetting foreign visitors • Vetting contracts • Shipments to foreign destinations • Foreign travel Through a license shared by several universities in Michigan, we have access to searchable lists based on the Export Control Regulations. 15
Closing Words Paraphrased from the Federal Sentencing Guidelines It is a general principle of compliance that when things go wrong: • Having policies and procedures and using them is a mitigating factor • Not having policies and procedures is an aggravating factor 16
Thank you 17
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