Export Controls in a University Research Setting DFA Monthly Meeting Stanford University School of Medicine December 15th, 2006

Steve Eisner Export Control Officer Office of the Vice Provost and Dean of Research and Graduate Policy Stanford University (650)

Why Are There Export Controls? Objective: To protect U.S. national security and foreign policy interests by – Objective: To protect U.S. national security and foreign policy interests by – Denying our adversaries the means to advance their military potential Denying our adversaries the means to advance their military potential Implementing foreign policy objectives Implementing foreign policy objectives Inhibiting the proliferation of Weapons of Mass Destruction (nuclear, biological, chemical) Inhibiting the proliferation of Weapons of Mass Destruction (nuclear, biological, chemical) Fulfilling Multilateral Obligations (i.e. UN Sanctions, Trade Agreements) Fulfilling Multilateral Obligations (i.e. UN Sanctions, Trade Agreements)

Why the Increased Attention to Export Controls? Security and immigration concerns post 9/11 Security and immigration concerns post 9/11 Sponsored research contains progressively greater restrictions on technology transfer to foreign persons Sponsored research contains progressively greater restrictions on technology transfer to foreign persons Not just Federal contracts but corporate grants/gifts as well (i.e. Anti-Terrorism language) Not just Federal contracts but corporate grants/gifts as well (i.e. Anti-Terrorism language) March 2004 DOC Inspector General report citing perceived deemed export loopholes at universities March 2004 DOC Inspector General report citing perceived deemed export loopholes at universities

Fundamental Research Exclusion (FRE) Covers most basic research at colleges and universities: Definition (NSDD 189) – “Basic or applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community” Per NSDD 189, it is the policy of the U.S. Government “that, to the maximum extent possible, the products of fundamental research remain unrestricted.” TRANSLATION: NO RESTRICTIONS ON ACCESS TO, OR DISSEMINATION OF RESEARCH RESULTS!! TRANSLATION: NO RESTRICTIONS ON ACCESS TO, OR DISSEMINATION OF RESEARCH RESULTS!!

Fundamental Research Exclusion (Cont.) Fundamental Research Exclusion is destroyed by any clause that:  Gives the sponsor the right to approve publications  Restricts participation of foreign nationals in conduct of research by precluding access to research results  Restriction also raises “Openness in Research” policy issues for colleges and universities The Fundamental Research Exclusion is destroyed by such clauses regardless of sponsorship (federal, private or non-profit)

Fundamental Research Exclusion (Cont.) This exclusion applies to INFORMATION and SOFTWARE CODE, not to tangible ITEMS This exclusion applies to INFORMATION and SOFTWARE CODE, not to tangible ITEMS No export license required to share FRE information or software code with foreign nationals at Stanford No export license required to share FRE information or software code with foreign nationals at Stanford No export license required to send or transfer FRE information abroad No export license required to send or transfer FRE information abroad No export license required to transmit or transfer FRE software code overseas No export license required to transmit or transfer FRE software code overseas Not applicable to certain FRE encryption source code/object code Not applicable to certain FRE encryption source code/object code The FRE does NOT apply to the overseas shipment of tangible items The FRE does NOT apply to the overseas shipment of tangible items Tangible items, as part of fundamental research, may require an export license Tangible items, as part of fundamental research, may require an export license

Contracts and Grants: What can we do? Assert the Fundamental Research exclusion within the proposal and During award negotiation remove terms and conditions that limit:  Our right to publish or present results  Participation of foreign nationals in our research or access to generated data or information

Situations That Raise “Red Flags” Grant/Contract terms & conditions that: Grant/Contract terms & conditions that: Limit access to or dissemination of research results Limit access to or dissemination of research results Restrict the participation of foreign nationals Restrict the participation of foreign nationals Third-Party items, information or software to which foreign national access is restricted (not subject to FRE) Third-Party items, information or software to which foreign national access is restricted (not subject to FRE) Licensing Agreements Licensing Agreements NDAs/Confidentiality Agreements NDAs/Confidentiality Agreements Material Transfer Agreements Material Transfer Agreements

More Situations That Raise “Red Flags” Tangible Exports Tangible Exports Research samples/reagents Research samples/reagents Equipment used in int’l research collaboration Equipment used in int’l research collaboration 3 rd Party proprietary items 3 rd Party proprietary items Sharing/Shipping Stanford-Designed “Strong” Encryption Source Code Abroad Sharing/Shipping Stanford-Designed “Strong” Encryption Source Code Abroad Notification/Review requirements may apply Notification/Review requirements may apply

Even More Situations That Raise “Red Flags”!! Travel To/Transactions With OFAC Sanctioned Countries Travel To/Transactions With OFAC Sanctioned Countries Comprehensive Embargos: Cuba, Iran, Syria Comprehensive Embargos: Cuba, Iran, Syria Limited Sanctions/Embargoes: North Korea, Myanmar (Burma), Sudan, Liberia, Iraq, Zimbabwe, Balkans, Libya, Cote D'Ivoire (Ivory Coast) and the Palestinian Territories (Palestinian Authority) Limited Sanctions/Embargoes: North Korea, Myanmar (Burma), Sudan, Liberia, Iraq, Zimbabwe, Balkans, Libya, Cote D'Ivoire (Ivory Coast) and the Palestinian Territories (Palestinian Authority) ANY Item, Information or Software that is: ANY Item, Information or Software that is: Designed or modified for a military use Designed or modified for a military use Configured or “tweaked” for use in outer-space Configured or “tweaked” for use in outer-space For research associated with the design, development, production or use of weapons of mass destruction For research associated with the design, development, production or use of weapons of mass destruction (nuclear explosive devices, chemical/biological agents, missiles) (nuclear explosive devices, chemical/biological agents, missiles)

Export Control Penalties NOTE OF CAUTION!! Individuals can be held personally responsible for civil and criminal violations of Export Control Regulations – this is in addition to any institutional penalties! Individuals can be held personally responsible for civil and criminal violations of Export Control Regulations – this is in addition to any institutional penalties! ITAR - $1,000,000 per violation and up to 10 yrs. ITAR - $1,000,000 per violation and up to 10 yrs. EAR - $50,000 per violation and up to 20 yrs. EAR - $50,000 per violation and up to 20 yrs. A comprehensive listing of civil and criminal penalties may be found at: A comprehensive listing of civil and criminal penalties may be found at:

Useful Links   Stanford University Export Controls Home Page:   Stanford University Export Controls Decision Tree:   NSDD 189:   U.S. Bureau of Industry and Security (Commerce):   Directorate of Defense Trade Controls (State):   Office of Foreign Assets Control (Treasury):

Steve Eisner Export Control Officer Office of the Vice Provost and Dean of Research and Graduate Policy Stanford University (650)