A 72-year-old professor is awaiting sentencing later this month after being convicted of illegal transmitting military technical data without a license from the Department of State to foreign students in the United States. Universities and other entities involved in potentially controlled research areas must assess and carefully monitor their researches with foreign students, scientists and scholars to minimize the risk of enforcement actions. If your organization does not have a compliance prog
International Business & Trade Law Alert
A Corporate Department Publication
The Roth Case and Export Controls: The Government
This International Business & Trade
Law Alert is intended to provide
Sends a Message to the Academic Research Industry
general information for clients or
Export control laws and regulations have been on the books for decades,
interested individuals and should not
but the government has stepped up enforcement in a number of areas ? including
be relied upon as legal advice. Please
the area of academic research. The recent conviction of Professor J. Reece Roth
consult an attorney for specific advice
of the University of Tennessee serves as a timely cautionary tale.
regarding your particular situation.
Roth, a 72-year-old professor of electrical engineering is awaiting sentencing
Judd L. Kessler
later this month after being convicted of illegally exporting military technical
data without a license from the U.S. Department of State. He may be sentenced
to up to 78 months in prison and may have to pay more than $1 million in fines.
Renata S. Vasconcellos The professor was convicted on charges that he, together with Atmospheric Glow
202-778-3060 Technologies (AGT), violated the Arms Export Control Act by allowing a Chinese
national graduate student to work on a project to develop technology for use on
military drones. He was also found to have illegally disclosed, to an Iranian
graduate student, information on the project and to have taken materials related
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to it in his laptop on a visit to China.
Traditionally, the U.S. has been very hospitable to foreign students looking
for challenging scientific research. The U.S. has the means, structure, and culture
to support scientific research, and foreign scholars have been very attracted to
that environment. That partnership seems to have worked in the past ? and can
still work provided certain lines are not crossed. For example, it is a violation of
U.S. export control laws under the so-called ?deemed export rule? to disclose to
a foreign national technical data or technology that is controlled for export by
the Department of Commerce or the Department of State. The government
considers such a disclosure within the U.S. to constitute an export to the foreign
national?s country of citizenship.
Many research laboratories and other entities involved in scientific work
covered by the export control regulations are aware of these risks and have
taken measures to protect against violations. To avoid serious and costly
problems, your organization may want to consider the following steps:
? First, determine whether any of the information with which you are working
is controlled for export by the Commerce Department or State Department.
This step is essential but, often, the assessment as to whether your data is
or is not controlled is complex and not readily determined. When in doubt,
The Commerce Department controls certain technology that may be used for civil and military applications
(dual use technology). The Commerce Control List is found at 15 C.F.R. Part 744, Supp. 1.
The State Department controls technical data that relates to defense (military) items. The list of items (U.S.
Munitions List) is found at 22 C.F.R. Part 121.
ask for advice from counsel with experience regarding export controls.
Understanding the complexities of the export control laws or knowing how
to seek advice from the agency potentially controlling the kind of data you
work with is often the key to obtaining an accurate answer.
? Second, examine your research team. It is critical to know the nationality
and visa status of all foreign nationals working on projects which involve
controlled equipment, technology or technical data. All foreign nationals
are subject to the ?deemed export? rule unless they have been granted
permanent residence (i.e., a Green Card) or have otherwise been granted
status as a protected person under 8 U.S.C. §1324b(a)(3) (related to certain
political refugees and political asylum holders). If your research involves
controlled technical data or technology and you believe that a foreign
scholar?s contribution to the project will be important, request a license
from the appropriate government agency.
? Third, if your research involves controlled data, establish strict controls on
access, so that unwitting ?deemed exports? do not occur. Do not carry
controlled research data overseas and be very conscientious about what
you carry in your laptop or pen drive. Both the Commerce Department and
the State Department control the export of technical data/technology that
is not otherwise already available to the public. This data need not be
considered classified. Unclassified information is also controlled for export.
? Fourth, with respect to ongoing research projects, immediately conduct an
internal audit to ensure compliance with export control laws.
The Roth case will certainly serve as a wake-up call to universities and
researchers and was intended as such by the agencies involved. In an
atmosphere of academic freedom and collaborative effort, professors may not
think about possible export control problems and, therefore, may not be attuned
to their legal obligations. It must be understood, however, that, from a legal
perspective, it is irrelevant whether a foreign national had the intent to pass on
controlled information to his country. A violation occurs the moment the foreign
national has access to the controlled technology/technical data, even if he/she
simply stores it in a drawer and never touches it again.
To minimize the risk of enforcement actions, universities and other entities
involved in potentially controlled research areas must assess and carefully
monitor their collaborations with foreign students, scientists, and scholars. If
potential problems are identified and the proper licenses are obtained, the
chances are good that the work involved can be completed with a minimum of
delay or disruption and that penalties can be avoided. If your organization does
not have a compliance program in place to deal with these issues, we urge that
you seek qualified advice to establish one.
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