The ITAR defines fundamental research in a bullet under "Public domain means information which is published and which is generally accessible or available to the public” (§120.11). Some government officials, as well as guidance on several university web sites, have asserted that only technical data which is (already) published qualifies as fundamental research excluded from the ITAR.
Other government officials have stated that the intent of the ITAR is not different from the EAR, and is intended to encompass the conduct and results of fundamental research. This aligns with established university research practice and with the practical reality of universities. When there are no restrictions on publication, and no restrictions on participation in federally-funded research, universities make the reasonable determination that there is no basis for excluding non-US researchers from participating in the conduct of research that will become publicly available, and it’s reasonable to expect that the results of the research will be improved by the contributions of the most capable researchers without regard to nationality.
Following the "already published" model would mean that only US researchers could contribute to research in the scope of the ITAR, which would be restricted until publication — and then available to everyone.
Looking to related government expressions for clarification:
- Further, specifically exempted from the definition of technical data is ... information that is in the “public domain” if published and generally available and accessible to the public through, for example, sales at newsstands and bookstores, subscriptions, second class mail, and libraries open to the public (22 CFR 120.11). Information is also in the public domain if it is made generally available to the public “through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public in the United States” or “through fundamental research in science and engineering at accredited institutions of higher learning in the U.S., where the resulting information is ordinarily published and shared broadly in the scientific community.” 22 CFR 120.11(6), (8) [Dept. of State Public Notice 3954]
- “‘Fundamental research’ means 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.” ... No restrictions may be placed upon the conduct or reporting of federally-funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes. [NSDD-189].
Taken as a whole, MIT’s interpretation is that the intent of the ITAR is that research conducted on campus, without restrictions on publication or participation, is fundamental research from inception to publication as long as the intent is to publish the results.
The Fundamental Research Exclusion to US Export Control Law does not apply outside the United States. To minimize the chance of export control violation it is a good practice to limit material presented outside of the United States to that which has already been published per the definitions of the ITAR, such as in conference proceedings, journals, websites, publically-accessible theses, etc. To the extent practicable, this should be kept in mind when answering questions about the research at public fora.
When discussing potential collaborations with foreign nationals, by phone, email, and other correspondence, you should use judgment and contact the ECO if you are in any doubt about areas of research you will be discussing or other material you plan to disclose. Also, the ECO can check that the potential collaborator and his/her institution is not on the restricted parties list. Opinion within the State Department on the status of probative collaborative discussions with international counterparts is mixed. You should be careful not to disclose any "technical data" on restricted material defined as information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles.
The exchange of scientific information with researchers abroad can trigger control requirements such as end user screening and export licensing for tangible items and software under ITAR and EAR control regimes as well as OFAC sanctions on select countries (currently Cuba, Sudan, Iran, and Crimea area of Ukraine). In addition, the ITAR regulations include controls on providing a “defense service.” This pertains to providing advice, training assistance, and other release of technical data to a foreign national with respect to an article on the USML or for a military/defense objective with respect to any article, whether or not listed on the USML. Visiting scholars and researchers who visit MIT as part of a collaboration need to be restricted from accessing laboratories in which ITAR items or data are kept or used.