International Research/Export Control
Export Control and other Regulations
U.S. Export Controls on Information, Commodities, and Services
"Export controls" refer to U.S. laws and regulations that restrict the shipment or transfer of certain information, commodities, services, and other items (including software) for reasons of foreign policy and national security, as determined by the U.S. government. The regulations may restrict the actual shipment, provision or transmission of controlled technology outside the United States, and may also restrict the sharing of information about the technology with "foreign nationals" even in the United States. Consequences for violating export control laws and regulations are severe, and may include criminal penalties for individuals on institutions that violate them.
The U.S. Department of State and the U.S. Department of Commerce each administer different export control regulations. The restrictions vary depending on the nature of the underlying technology and country of "export." In addition, the Department of the Treasury, Office of Foreign Asset Control ("OFAC") administers economic sanctions imposed against designated foreign governments and persons.
The U.S. International Traffic in Arms Regulations ("ITAR"), administered by the Department of State, regulates the export of "defense items," also known as "munitions," or, in other words, items determined to have inherent military properties. The ITAR also regulates information (or "technical data") and assistance (such as training), called "technical services," relating to the controlled items. An item originally identified as having a military purpose may continue to be identified as a "defense article" even after any defense function has lapsed. For example, certain sophisticated equipment (such as infra-red night-vision goggles used for basic research) are covered by State Department export controls as "defense articles," even if they have no military purpose for an institution and can be readily purchased both here and overseas.
The U.S. Export Administration Regulations ("EAR") of the Department of Commerce covers "dual use" equipment, materials, and other technologies with both commercial and military application or that are controlled for other reasons of national policy. The controlled items are found in lists published by the U.S. Government, known respectively as the United States Munitions List and the Commerce Control List (see lists here).
In addition, OFAC's economic sanction regimes may encompass trade embargoes, travel restrictions and/or blocking assets of and restricting transactions with designated persons or foreign governments, or within certain countries.
Depending on the nature of the technology, a license from the U.S. Departments of State, Commerce or Treasury may be required before such activities as:
- Physically transporting a controlled instrument outside the U.S.
- Sharing technical data or technology about a controlled item with a non-U.S. person (even in the U.S.)
- Electronically submitting controlled technical data or technology (as defined in the regulations) outside the U.S. via email or uploading software code onto a public website.
- Training non-U.S. persons on controlled items or technology.
- Activity in a sanctioned country, including in particular, Cuba, Syria, Sudan (North), North Korea and Iran.
Export regulations apply whether or not the research is funded by a federal or non-federal grant, contract, or other agreement, and whether or not the EAR or ITAR is cited in the award document.
More information about the EAR and the ITAR follow below. For more information about OFAC sanctions, click here.
Commerce and State Export Regulations
Under both the Commerce Department's EAR and the State Department's ITAR, if research involves controlled technology or equipment, Columbia University may be required to obtain prior U.S. government approval (known as a license) before allowing foreign nationals to participate in the research, partnering with a foreign entity, or sharing (including by publication or presentation at conferences) the technology in any manner with foreign nationals. ("Foreign Nationals" is defined as persons who are not U.S. citizens or legal permanent residents or legally-recognized asylees and refugees).
As discussed in greater detail below, many University activities in the U.S. qualify for an "exemption" from or "exceptions" to export control regulations. Often this is because the information involved is publicly available or in the public domain, is considered "fundamental research" (as defined below), or is taught as part of a listed catalogue course at the institution. If an exception applies, no license is required.
"Input" versus "Output" Technology; Classification
One important question is whether the technology at issue is the "output" of Columbia research, or whether it is "input technology" that we receive from a third party. Examples of "input technology" include instrumentation or software we purchase; or unpublished technical specifications about an instrument used for research, including operating manuals, blueprints, drawings, photographs, plans, instructions or documentation; and materials licensed in or borrowed from a collaborator. The distinction between "input" and "output" technology matters because certain exceptions to export control regulations typically only apply to the output of University research, and do not apply to "input technology."
Determining whether an instrument or technology is subject to export controls can involve a nuanced analysis. It may require obtaining information from the vendor that makes the instrument or technology. It may also require a technical comparison of the specifications for the instrument at issue against the descriptions of controlled technology in the Commerce and State Department lists. The lists are available here. Finally, the University has licensed a web-based tool called "Visual Compliance" that can facilitate classification.
Sharing export controlled information with a foreign national inside the U.S. is known as "deemed export." A deemed export occurs when technology or technical information regulated under the federal export control regulations is "exported," not by shipping it overseas but by "transferring" it to a foreign national in the United States. If you receive export controlled information or technology from any external party, a license may be required from the federal government before the information or technology may be shared with a foreign national (as defined above). For this reason, if you receive any information that is marked or determined to be subject to export controls, you should not disclose it to any foreign national, including international students, without guidance from the Research Compliance Export Control Officer or the Office of the General Counsel.
The data and information generated through many University research activities may be exempted from export controls because of a general exception for "Fundamental Research." Fundamental Research is defined as "basic and applied research in science and engineering, the results of which ordinarily are published and 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."
In accordance with University Statutes, research at Columbia is performed without accepting publication restrictions and its results are ordinarily published (University Statute XLIII, Externally Funded Research and Instruction). As a result, most research conducted in the U.S. at Columbia meets the definition Fundamental Research, and the results of our research are typically excluded from the export regulations.
Importantly, there are some limitations to the Fundamental Research exception. For example, the exception would not apply to research conducted under an agreement that restricts either publication or foreign national participation in the project. In addition, "input technology" that is subject to export controls can never be Fundamental Research. The exemption refers to "data and information" and not to tangible items that may be produced. Finally, in general, the Fundamental Research exception does not apply to research conducted outside the United States.
Physical Exports of Controlled Equipment
Export controls also limit the ability to transport controlled equipment abroad, without obtaining U.S. federal government licenses. U.S. export laws are triggered even if a controlled item leaves the U.S. temporarily and even if the item is being transferred to a wholly-owned subsidiary of Columbia University in an overseas country. In addition, U.S. export laws are triggered when an item controlled under U.S. laws is sent from one foreign country to another. This is called a "re-export." Even where the export of an item to the host country does not require a license, the re-export of the item to another country could trigger the need for another round of review. In addition, host country export control regulations may also apply to technology being used outside the United States.
Laptops, Mobile Phones, and Other Personal Electronic Devices
Columbia researchers who travel outside the United States, whether to a conference, a Columbia Global Center, for field work, or to collaborate with another institution, must be aware that their laptops, mobile phones, and other electronic devices are subject to U.S. export controls. However, with the exception of travel to designated sanctioned countries, depending on the country of travel (see section on Economic Sanctions), individuals travelling outside the United States with personal electronic devices will generally not require a license, so long as the devices are:
Routinely available from commercial vendors;
Kept in the traveler's immediate control while outside the U.S.; and
Brought back to the U.S. within one year of the initial departure.
On the other hand, licenses are likely to be required for a device that holds encryption software or contains software, materials, or information that are themselves controlled under U.S. export controls.
Those performing research or accessing export controlled items, technology or software at Columbia are responsible for understanding the controls applicable to their activities and the interplay with the various exceptions. This may involve reviewing the portfolio of items, technical information or software accessed or developed in research against the USML and CCL lists (found directly below), understanding the role of foreign nationals and the impact of travel outside the U.S., and reviewing any applicable exceptions. Often this involves a complex nuanced analysis. While the principal investigator is responsible for compliance in this area, the University - and in particular, the Office of Research Compliance and Training and the Office of the General Counsel - support the research community in this challenging area, and should be freely consulted for guidance and other assistance.
Penalties for violation of export laws are severe, and can involve civil and criminal penalties for both the University and individuals. Criminal violations of EAR carry potential penalties of the greater of $50,000-$1,000,000 or five times the value of the export, and up to 10 years of imprisonment; civil penalties include fines of $10,000-$120,000. Criminal violations of ITAR can entail fines of up to $1,000,000 and up to 10 years' imprisonment; civil penalties include fines of up to $500,000.