Technology and Technical Data

The phrases “Technology" or “Technical Data” refer to technical information beyond general and basic marketing materials about a controlled commodity. They do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, broadly speaking, the terms “technology” and “technical data” mean specific information necessary for the development, production, or use of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation.


Sharing with Foreign Nationals

The U.S. government regulates the transfer of technology or technical data to foreign nationals in the U.S. (i.e., a deemed export). You may need a license prior to sharing export-controlled technology or technical data.

Even a discussion with a foreign researcher or student in a campus laboratory is considered a “deemed export.” Export controls preclude the participation of all foreign nationals in research that involves restricted technology without first obtaining a license or license exception from the appropriate government agency.

Publicly available information, technology, and software are not subject to EAR and may be shared with foreign persons without obtaining an export license or other authorization.


Technical Assistance and Defense Service

Under both the EAR and ITAR, technical assistance and defense services on export restricted items are controlled.

Technical Assistance

Technical assistance may involve the transfer of technical data and may take forms such as instruction, skills training, working knowledge, consulting services.

Defense Service

Under § 120.9 (a) Defense service means:

  1. The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;
  2. The furnishing to foreign persons of any technical data controlled under this subchapter (see § 120.10), whether in the United States or abroad; or
  3. Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.

Contact the Export Control Officer to determine whether your international collaborations could meet the requirements for technical assistance or defense services.


Dual Use

The EAR controls exports of items, information, and software that are primarily commercial but have both commercial and military applications. These items are called dual use items. Dual use items may require an export license depending on the item, the recipient, the destination country, and the end use.


Dual Use Research and Dual Use Research of Concern

Research that yields new technologies or information with the potential for both benevolent and malevolent applications is referred to as “dual use research.” A subset of life science research with the highest potential for yielding knowledge, products, or technology that could be misapplied to threaten public health or national security is referred to as dual use research of concern.”


Dual Use Research of Concern

Dual use research of concern (DURC) is life sciences research, based on current understanding, which can be reasonably anticipated to provide knowledge, information, products, or technologies that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, material, or national security.

Research with one or more of the fifteen DURC agents and/or toxins, listed in the U.S. government DURC policy, which aims to produce or can be reasonably anticipated to produce one or more of the seven experimental effects of concern listed in the DURC policy must be evaluated by the responsible campus official for its DURC potential. The UC policy on DURC outlines the review and oversight for DURC items and technology.

Researchers are responsible for assessing if their research is DURC, reporting this assessment to the DURC Institutional Review Entity, and if required, implementing a risk mitigation and management plan. See EH&S Dual Use Research of Concern for more information and the UC Berkeley DURC form. If you have any questions, please contact EH&S.


Software

Before purchasing or otherwise receiving software, ask the software provider to identify the ECCN (Export Control Classification Number alphanumeric code) that controls the software. Research the applicability of control, given the possibility that the software provider is being overly cautious and the software is not, in fact, controlled. Contact the Export Control Officer for assistance.

Review software licenses for any potential restrictions related to export control. Do not sign agreements with restrictions on citizenship or dissemination of the software.

When creating University software, make it “publicly available” whenever possible.

Publish” software and technical data, that is, make it available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution.


Encryption Software

Encryption software controlled under ECCN 5D002 for Encryption Items (EI) reasons on the Commerce Control List and mass market encryption software with symmetric key length exceeding 64-bits controlled under ECCN 5D002 remain subject to EAR.

Encryption software controlled under 5D002 can be exported under license exception TSU (Technology & Software Unrestricted) if it is made publicly available. The source code and corresponding object code resulting from compiling such source code may be posted on the internet where it may be downloaded by anyone, as long as the Department of Commerce is notified of the internet location or is provided a copy of the source code (See EAR, Part 740.13).

Contact the Export Control Officer with questions and for assistance.


Third-Party Controlled Items or Data

The conduct of fundamental research may proceed openly and its results may be shared freely with foreign nationals in the U.S. without concern about violating deemed export restrictions. Any export-controlled information or any materials provided by a third party may not be shared openly with foreign nationals.

Research conducted for a business entity will be considered fundamental research if and when the researchers are able to make the resulting scientific and technical information publicly available without delay based on proprietary concerns or other restrictions.

The initial transfer of information from a business entity to researchers does not qualify as fundamental research when the parties have agreed that the business may withhold from publication some or all of the information provided.

Prepublication review by the business would not be considered a proprietary restriction if it is only a temporary delay and is only to ensure that the company provided proprietary information or patent rights would not be compromised.

A vendor or a research partner may have to disclose information on a piece of export-controlled hardware being provided for use in a fundamental research experiment. Information about export-controlled equipment is itself export-controlled and carries with it export-control requirements that must be honored if the researcher agrees to accept such information.

Prior to accepting a third party’s controlled items or data, review restrictions on the items or data.

Contact the Export Control Officer with questions and for assistance.


Agreements

Researchers should be aware of issues with these types of agreements:

  • Any restrictions on the basis of nationality or citizenship.
  • Any publication restrictions that include approval prior to publication or require extensive delay in publication.
  • Proprietary data agreements where the commercial entity includes an export control notice, or restricts dissemination to others on the basis of nationality or citizenship. Do not sign these agreements.
  • DD2345, Militarily Critical Technical Data Agreement. Do not sign this agreement as a condition of attending a conference or receiving materials from the government.
  • Confidentiality/Non-Disclosure Agreements (NDAs). Review these agreements to ensure that you and UC are not assuming the burden of restricting dissemination based on citizenship status or securing licenses. Do not sign agreements with these restrictions. See the Frequently Asked Question on NDAs for guidance and contact information.