There are several concerns you should have when teaching a course or part of a course outside the United States university system.
- Are there students from OFAC sanctioned countries or terrorist states? (Iran, Sudan, Cuba, Iraq, Syria, North Korea, Crimea, etc.) You cannot teach them without a license.
- Are any of the students on the Restricted Parties list? You may not teach them. To find out their status, their names must be run through a screening program. MIT Export Control can help you work out a plan to do this.
- Is the course material transferring knowledge on "principles not commonly taught"?
- Is there sensitive nuclear technology being taught?
Below are some guidelines but every scenario is unique. If you are planning any of these activities have a conversation with the Export Control Officer before you are committed.
Following are some more details:
Each of the export control regimes provides for university education to be conducted outside their control — but each takes a slightly different approach.
The EAR provides that educational information released by instruction in catalog courses and associated teaching laboratories of academic institutions (except for certain encryption technology) is not subject to the EAR [EAR §734.3(b)(3)(iii) ].
This is broad and unambiguous (except encryption technology, which can be complicated)
The ITAR provides that information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, is not included in the definition of technical data subject to the ITAR [§120.10(a)(5)].
The references to specific academic fields, use of “principles” rather than “information”, and inclusion of undefined terms such as “general” and “commonly taught” makes the ITAR definition potentially narrower and more subject to differing interpretations than the EAR definition.
The Department of Energy Assistance to Foreign Atomic Energy Activities regulations consider information available in public libraries, public reading rooms, public document rooms, public archives, or public data banks, or in university courses to be public information not subject to its controls [10 CFR 810.3].
Education in the US is generally not affected by the Treasury Department's Office of Financial Assets Controls (OFAC) sanctions programs, although online education is. However, the State Department is required to deny a visa to citizens of Iran seeking to study in preparation for a career in the Iran energy sector, or in nuclear science or engineering in Iran, and the Department of Homeland Security is required to deny them entry. [Pub.L. 112-158, Section 501].
The practical effect is that most university courses are clearly excluded from export controls, enabling participation by international students and faculty. To be sure that a course dealing with advanced or sensitive technology qualifies for educational exclusion, first determine which export control regime has jurisdiction over the course’s technology, and then apply the criteria for that regime.
- Material released in catalog courses is considered publicly available, and therefore excluded from US export controls, by delivery in instruction at universities in the US or abroad, except for:
- Encryption (EAR)
- Principles not commonly taught (ITAR)
- Sensitive nuclear technology (DoE)
- Courses with no export control connection: many courses in business, media studies, economics, foreign languages, history, literature, management, music and theater arts, political science, writing and humanistic studies, and some courses in other departments and programs have subject matter that is not within the scope of the export controls, which focus on controlled items and the resources needed to make them.
- Courses with content within the scope of EAR (possibly in engineering, chemistry, etc.): educational information is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions. We rely on Question C(5) to establish that the undefined term “academic institutions” here applies both outside and inside the U.S. (EAR §734.3, 734.9).
- Note: Encryption software controlled under 5D002 for EI reasons and mass market encryption software with symmetric key length >64 bits controlled under 5D992 remain subject to the EAR
- Courses with content within the scope of ITAR (possibly in aero/astro, physics, nuclear science): “information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities“ is excluded from the definition of ITAR-controlled “technical data” and is not subject to ITAR controls §120.10(a)(5). Courses with unusual content should be evaluated for consistency with this criterion.
- Note: Even though the course material is excluded from export controls, follow-on discussion or active selection, collection, and transfer of the uncontrolled course material can meet the definition of “defense service” (§120.9(a)(1)), which is subject to control.
- Courses with content within the scope of Dept of Energy (including some courses in Nuclear Science and Engineering and Physics): furnishing public information, including information “in university courses”, is generally authorized, provided no sensitive nuclear technology is transferred.
- “Sensitive nuclear technology” means information (including tangible items and services) not available to the public which is important to the design, construction, fabrication, operation, or maintenance of a uranium enrichment or nuclear fuel reprocessing facility or a facility for the production of heavy water. 10 CFR §810.3, 810.7.
- DoE has pointed out that follow-on-questions and discussion can go beyond the public information and into practical implementation, which requires specific authorization. Some of the above is based on verbal discussion with DoE, and cannot be readily identified in the current regulations.
The ITAR §120.9 defines Defense Service as
- 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;
- The furnishing to foreign persons of any technical data controlled, whether in the United States or abroad; or
- 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.
ITAR §120.10 defines Technical Data as
- Information, other than software as defined in §120.10(a)(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
- Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;
- Information covered by an invention secrecy order; or
- Software directly related to defense articles.
(b) The definition in paragraph (a) of this section does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
CCL Part 772 defines Technology as
Information necessary for the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item.
Contact the MIT Export Control Compliance Team at firstname.lastname@example.org, or by phone at 617-253-2762 (Janet Johnston).