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International Travel: What Faculty & Researchers Need to Know Before They Leave
the Country
Adilia F. KochCalifornia Institute of Technology
• Export controls are laws and regulations that govern the export of strategic technologies, equipment, hardware, software or providing technical assistance to Foreign Persons.
• These laws may impact:• Travel abroad• Publication or dissemination of export controlled, 3rd party
restricted information• Export of things or transfer of technology to Foreign Persons
whether in the US or outside the US. • Hand-carried items
Export Control Regulations – How will this affect your faculty’s travel plans?
• Don’t rely exclusively on FRE when abroad!– STOP: Depending on the activity -- FRE ends at the
border!– FRE does not apply to physical exports, hand-carried
items• “Accredited Universities of higher learning in the U.S.
conducting basic and applied research the results of which are intended to be published . . . and are not subject to access or publication restrictions.”
What about the use of Fundamental Research Exclusion (FRE) when I travel?
Identify High Risk Int’l Travel – Sensitive Technologies
Extra care should be taken by faculty & researchers who are experts in Military Critical Technologies:Aeronautics Systems Technology Lasers, Optics &Imaging Technology
Armaments & Energetic Materials Processing & manufacturing Technology
Biomedical Technology Marine Systems Technology
Chemical Technology Nuclear Systems Technology
Energy Positioning & Navigation
Electronics Technology Information Security
Ground Systems Technology Weapons Effect Technology
Information Systems Technology
• The project involves technology, software or hardware that is subject to the U.S. Commerce Regulations (dual-use & no license required)• Many exemptions apply!
• Your project is being performed as “fundamental research” as defined in the regulations.
• The travel involves technology, software or hardware that is subject to the U.S. State Dept regulations -- Int’l Traffic In Arms (ITAR) • Meaning it has military/space
applications
• Faculty travels outside US to assist foreign persons on how to improve the electronics on an export controlled device.• Stop! Do you have a violation?
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“Export Controlled” – How can this affect your travel plans?
Best case scenario Worse case scenario
Universities in the Media
• University of Tennessee Professor Found Guilty on 18 Counts of Export Violations
Satterfield, Jamie. 2008. “Retired UT Prof guilty; case gained national attention.” http://www.knoxnews.com/news/2008/sep/03/ex-ut-prof-guilty/? (accessed on March 22, 2010).
What happens when things go wrong?
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Assessing the Risk: Int’l Travel Decision Points
• What is the country of destination? People’s Republic of China?• Is a Sanctioned Country Involved? (CUBA, IRAN, SUDAN, SYRIA, N. KOREA)• What is the purpose of the travel?
– Conference– Technical Meeting– Testing, critical design meeting, technical assistance
• Who are the foreign parties involved? Restricted Parties involved?• What is being hand-carried? Classify the equipment & technical data.• Export license required?• If there is a license in place, does the scope cover proposed activities with
foreign parties?• Is project subject to restrictions (foreign person, publication, access)?• Restricted or Proprietary technologies involved?
Int’l Travel + Foreign Person + Sensitive Technologies= Trouble!1. Faculty will share controlled technical info or provide technical assistance
about a sensitive technology to FP? YES! License Required2. Overall project is subject to contractual restrictions (e.g., no foreign
persons allowed)? YES! License is Required3. Info to be shared contains restrictive marking language: “ITAR
controlled, no foreign person access . . . “ YES! Export Authority Required – license or exemption
Considerations:4. Who is the sponsor (NASA, Dept of Defense, Army, Navy)?5. Who is the ultimate end-user? Military?6. What is the ultimate end-use? (Space, military, reconnaissance)
How to determine if your faculty needs a license?
USML Categories (The ITAR)• I Firearms, Close Assault Weapons and Combat Shotguns• II Guns and Armament• III Ammunition/Ordnance• IV Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines • V Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents• VI Vessels of War and Special Naval Equipment• VII Tanks and Military Vehicles• VIII Aircraft and Associated Equipment• IX Military Training Equipment and Training• X Protective Personnel Equipment and Shelters• XI Military Electronics• XII Fire Control, Range Finder, Optical and Guidance and Control Equipment• XIII Auxiliary Military Equipment• XIV Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment• XV Spacecraft Systems and Associated Equipment• XVI Nuclear Weapons, Design and Testing Related Items• XVII Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated• XVIII Directed Energy Weapons• XX Submersible Vessels, Oceanographic and Assoc. Equipment• XXI Miscellaneous Articles (Software, components, etc.)
Travel Involves Sensitive Technologies – Military or Space Applications
Commerce Control List Categories
0 = Nuclear materials, facilities and equipment (and miscellaneous items)1 = Materials, Chemicals, Microorganisms and Toxins2 = Materials Processing3 = Electronics4 = Computers5 = Telecommunications and Information Security6 = Sensors and Lasers7 = Navigation and Avionics8 = Marine9 = Propulsion Systems, Space Vehicles, and Related Equipment
Other Sensitive Technologies with Dual-Use Applications
• High Risk vs. Low Risk Travel– China– Travel to any Sanctioned or Embargoed Country for any
reason• Check CIA Fact Book and US State Department Travel
Advisories before leaving the country• Contact the Office of Foreign Assets Control (OFAC – U.S.
Treasury)
– Visits to parties on the Restricted Party List (government watch-list of prohibited parties; generally, US persons are not allowed to do business with them.)
More stringent rules apply for travel to T-5 Countries
• Different set of rules for travel to sanctioned countries (T-5)
• T-5 Countries: – Iran– Sudan– Syria– North Korea – Cuba
• Restrictions may apply whether or not travel involves export controlled information
• Contact OFAC for travel to these countries to determine what’s allowed and what’s not.
US Dept of Treasury, Office of Foreign Assets Controls Sanctioned Countries
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This list gets updated frequently. Updates can be checked at:http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx
Balkans Belarus Burma Cote d’Ivoire Cuba Democratic Republic of the Congo Iran Iraq Lebanon Former Liberian Regime of Charles Taylor Libya North Korea Somalia Sudan Syria Yemen Zimbabwe
U.S. Dept of State, International Traffic in Arms Regulations (ITAR) Proscribed Countries
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Afghanistan Belarus Burma China (PR) Cote d’Ivoire Cuba Cyprus Democratic Republic of the Congo Eritrea Fiji Guinea, Republic of Haiti Iran Iraq
Kyrgyzstan Lebanon Liberia Libya North Korea Somalia Sri Lanka Sudan Syria Venezuela Vietnam Yemen Zimbabwe
This list gets updated frequently. Updates can be checked at:http://pmddtc.state.gov/embargoed_countries/index.html
• Is the information in the public domain?• Are there any available exemptions that may apply?
– Tools of the Trade: Items will be used exclusively by the U.S. Person and will return to the U.S.? (TMP)
– Baggage: Items qualify as personal baggage? (BAG)– Technical data will be used exclusively by the U.S. citizen
and will not be shared with any Foreign Person? (ITAR §125.4(b)(9))
– General or Educational License applicable (OFAC, EAR)?
High Risk Travel – Now What?
CBP has Authority to Search• “U.S. Customs & Border Protection (CBP)
officer’s authority is derived through 19 USC 1465 and 19 CFR 162.6 which states that, – “All persons, baggage and merchandise arriving in
the Customs territory of US from places outside thereof are liable to inspection by CBP – including US citizens.”
– Diplomatic status exempted
Be aware of Increase in Government Searches & Seizures . . .
• More government searches of laptops, electronic memory devices of travelers entering and leaving the U.S.
– Clarity Sought on Electronics SearchesU.S. Agents Seize Travelers' Devices (Washington Post)
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/06/AR2008020604763_pf.html
• Make sure traveler has all necessary documentation accompanying the hand-carried items– Shipper’s Export Declaration may be required– Export License numbers, exemptions or other government authorization– Small infractions can lead to more serious investigations
ICE (U.S. Immigration and Customs Enforcement)
• “ICE’s Arms and Strategic Technology Investigation Unit (ASTI) Unit is responsible for – investigating the illegal export of U.S. military products and
sensitive technology.• ICE partners up with
– FBI, Dept of Commerce and OFAC (Treasury Dept) and includes ability to follow the export of goods and technology around the world.
• Ability to acquire and analyze digital evidence by applying computer forensic skills”
4th Amendment Protection
• ACLU (American Civil Liberties Union) and other groups have challenged the US government’s authority to search and seize without reasonable cause. – No clear guidelines or policies on border searches, including which
rules govern the seizing and copying of the contents of electronic devices.
– Do border agents have a right to search electronic devices at all without suspicion of a crime?
• US government believes that if you haven’t cleared customs, then the 4th Amendment protection doesn’t apply since you are not “officially” in the U.S.
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Travel Abroad• Recommended Tips
Travel Light!• Best to travel outside US with “clean laptops”
– Don’t carry sensitive technology– Don’t carry export controlled information that’s not subject to an
exemption, exclusion, export license or other authority
• Consider not taking information that can be compromised during a search:– Personal data
• Websites visited• Emails
– Proprietary information– Information subject to Non-Disclosure Agreements– Attorney-client privileged information
• Use marking language to cite authority for release of “technical data” (information required for the design, development, production, modification, enhancement of a controlled item)
• Are you claiming an exclusion based on Fundamental Research or Publicly Available for controlled technical data contained in a paper or presentation?– Citations: Make sure faculty or researcher cites the website or other site that
points to the “publicly available” technical data directly on the page
– Restricted Data: Make sure FRE – results of research – do not contain 3rd party export controlled information -- ITAR creep
Customs query? Avoid a violation, Customs seizure of your goods or worse …
• Foreign countries also have export and import restrictions similar or more stringent than the United States
• “Suspicious” looking gadgets or scientific instruments are more likely to be more closely “examined”
• What can help?• General system descriptions of the items or research project• University from university official explains in “layperson’s”
terms the purpose of their travel
Foreign & U.S. Customs Clearance
• Hand-carried items, equipment, hardware, technical data are also subject to controls
• Recommended: Ensure that traveler has proper export/import documentation for items and technology taken outside the U.S. and to allow entry into foreign country and re-entry into the U.S.• They may qualify for an exemption – personal baggage or
will be used exclusively by the U.S. citizen that is traveling
What about hand-carried items?
Conduct Travel Awareness Briefings
• Faculty Travel Abroad Awareness Briefing – Advisable depending on type of technology,
purpose of the visit, country involved– Some faculty and researchers are at higher
risk than others
Empty out the Pockets! • Customs Declarations
– Make sure all items -- hardware, equipment, “tools of the trade” are properly declared when clearing Customs – U.S. and foreign country
• Provide traveler with copy of Exemption or License keep a copy at campus along with the technical specs that will help answer any customs queries or clearance– Recordkeeping requirements apply to use of
exemptions
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Recommended Travel Tips
• Travel with “clean laptops” and memory devices• Custom Border Protection (CBP) has ramped up its
practice of search and seizure of laptops and other memory devices at the border.
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Take only what you need
• Do not take any sensitive information or export controlled items outside of the US– Export of items outside the US are still subject to
the export regulations and are not covered by the “Fundamental Research Exclusion”
Mitigating the Risk• Enforcement Investigations can occur many months or
years after foreign travel occurred. • Faculty’s area of research, expertise and travel abroad
may leave the wrong impression• What can you do?
– For sensitive projects, have faculty write a brief trip report of what he/she did not do and what he did do to show that he stayed within the lines of export controls or “fundamental research”
– It will serve as a record later and demonstrate due diligence
When Should Faculty Contact You?Travel involves technical discussions or conference about sensitive technologies
Shipment has been seized by US Customs or by Customs in foreign country.
Laptop has been confiscated.
Travel to Embargoed or Sanctioned Countries
Travel with export controlled items or technical data
RESOURCES• Useful Links
• The Law and Regulations
Travel• US State Department Travel Warnings
http://travel.state.gov/travel/cis_pa_tw/tw/tw_1764.html
• CIA Factbook
https://www.cia.gov/library/publications/the-world-factbook/
Embargoed/Sanctioned Countries & Policies
• State Department http://pmddtc.state.gov/country.htm
• Office of Foreign Assets Control
http://www.treas.gov/offices/enforcement/ofac/
The Export Laws & Regulations• U.S. Department of State: International Traffic in Arms Regulations
(ITAR) http://pmddtc.state.gov/regulations_laws/itar.html • U.S. Department of Commerce, Bureau of Industry & Security
(BIS): Export Administration Regulations (EAR)http://www.access.gpo.gov/bis/ear/ear_data.html
• U.S. Department of the Treasury, Office of Financial and Asset Controls (OFAC) http://www.treas.gov/offices/enforcement/ofac/
• U.S. Customs RegulationsImports -- Harmonized Tariff Code (HTS #) http://www.usitc.gov/tata/hts/bychapter/index.htmSchedule B (US Census) http://www.census.gov/
• Discussion & Questions
Contact InformationAdilia F. Koch
Director of Export ComplianceCalifornia Institute of Technology
