From: Dimitri Vulis Sender: "work on connecting the USSR to internet, weekly digest" To: "Kauto Huopio, LUT" Subject: SUEARN-L Digest 901223 Date: Sun, 23 Dec 90 17:51:00 EST ****** * * ****** **** ****** * ** **** SUEARN-L is the weekly * * * ** ** ** ** ** ** ** ** ** digest for discussing the ****** * * ***** ****** ****** ****** *** ** ** ongoing work on connecting * * * ** ** ** ** ** ** ** ** ** the USSR to Internet. ****** ****** ****** ** ** ** ** ** * ** ** Moderator: M.A.Meystel [This is a special issue of the digest. I'm reposting Jim Conklin's message from several other lists and 3 long files, full of legalese, which I got from LISTSERV@UBVM, and which should be carefully studied by anyone contemplating sending *any* programs to Soviet e-mail addresses. -Dimitri Vulis] --- Date: Wed, 19 Dec 90 15:05:57 EST Reply-To: BITNIC LIAISON Sender: BITNIC LIAISON From: Jim Conklin Subject: US Dept of Commerce Rules for internat. mail & data Comments: To: bitnews@BITNIC.BITNET, policy-l@BITNIC.BITNET, inforep@BITNIC.BITNET, jmyhg@uottawa.BITNET The following files, all from LISTSERV@BITNIC, contain information about the U.S. Department of Commerce rules for general availability of data which may be useful to participants in BITNET and its international Cooperating Networks: LEGAL GTDA -- The GTDA rules for info which may be generally distributed without special Dept of Commerce license LEGAL COMMERCE -- The Letter of Clarification to CREN (BITNET) from the U.S. Department of Commerce, explaining the issues involved in allowing East Block countries to connect to BITNET (directly or via EARN) LEGAL COUNSEL -- The opinion of the CREN counsel regarding the implications of allowing the East Block countries to connect to BITNET CREN and BITNIC are not staffed to follow the changes in Department of Commerce rules in detail. We will gladly post advisory memoranda that are made available to us by the Department or by others, however. At present, the above constitute the on-line information. All organizations which use the networks are responsible for ensuring their own compliance to the Department of Commerce Rules, so Member Representatives, Information Representatives, and others in positions of responsibility in the organizations which participate in BITNET or other networks should take the time to become familiar with these files and to educate their faculty, students, and staff about these responsibilities. Jim --- The file LEGAL COUNSEL: CREN Information Center LEGAL COUNSEL Feb. 21, 1990 Suite 600, 1112 Sixteenth St, NW, Washington, DC 20036 (202)872-4200 Legal Aspects of Linking BITNET to Foreign Countries The network access to foreign countries (especially those which may have restrictions placed upon the information which can legally be sent to them) which is now possible through CREN networks places significant legal responsibilities on CREN Members and Affiliates to ensure that they do not violate federal law by transmitting material to such foreign countries which is not allowed under current law and federal policy. The definitive policy statement regarding what data may be freely distributed is provided by the US Department of Commerce Export Administration Regulations, of which section 779.3, "General License GTDA; Technical Data Available to All Destinations" defines that information which may be distributed without special license from the Department of Commerce. It is the responsibility of each CREN Member and Affiliate to ensure that it abides by these regulations in all respects. The following opinion from CREN counsel supplements the letter of clarification to CREN from the US Department of Commerce and the GTDA policy statement defining General Technical Data Availability to provide CREN Members and Affiliates with an understanding of the legal issues of which they should be aware in using the networks for communication abroad. These three documents are all available from LISTSERV@BITNIC as the files LEGAL COUNSEL, LEGAL COMMERCE, and LEGAL GTDA, respectively. CREN Members and Affiliates are strongly advised to familiarize themselves with these documents and to take whatever steps are necessary to ensure that their staff and students are not in violation of the federal regulations in their use of the networks. Legal Aspects of Linking BITNET to East Block Nations Opinion of Counsel OPINION MEMORANDUM TO: Ira Fuchs, President CREN Board of Trustees DATE: February 7, 1990 FROM: Edward J. Bergman, Esquire CREN Corporate Counsel RE: Link to Eastern Europe and PRC This memorandum is in response to your request for an opinion of counsel regarding network connection by entities within Eastern European Countries and The People's Republic of China. Following review of the United States Department of Commerce, Bureau of Export Administration, letter to Jim Conklin, dated January 18, 1990, hereafter "The Commerce Letter" (Exhibit A); The Export Regulation Act, USCA, Title 50, Appendix, Sections 2401 et seq; the General License GTDA, 15 CFR Part 779, Federal Register Vol. 54, No. 190, October 3, 1989, (Exhibit B); and telephone conferences with the Department of Commerce, we offer the following review and evaluation: Broadly speaking, the General License GTDA permits the exportation of non-proprietary information consisting of three principal categories: a. Publicly available information b. Fundamental research c. Educational information We will refrain from restating or paraphrasing the General License GTDA which is, instead, attached as Exhibit "A" hereto. The salient common characteristic of the aforementioned categories is the lack of proprietary restrictions upon access to the information in question. Thus "fundamental" research generates information which is "ordinarily published and shared broadly within the scientific community," and "educational information" comprehends information released "by instruction in catalog courses and associated teaching laboratories of academic institutions." "Publicly available information" constitutes the broadest category comprehended within the General License GTDA and is well defined in Sec. 779.3(b). Narrower categories are covered by Sec. 779.3(e), (f) and (g). The information carried over the network will almost universally qualify for the licensing protection of the GTDA unless and until CREN decides to add proprietary data bases at some future time. CREN member guidelines already prohibit use of the network for "commercial traffic". Presently, CREN does not disseminate or export technical data as an entity since CREN does not undertake activities other than internal organization, policy making and membership related matters through its Board of Trustees and its prime contractor, EDUCOM. The members, not CREN, are the prospective exporters within this format. Logically, and in accordance with The Commerce letter, the foregoing structure determines that CREN's principal, if not sole responsibility, is communication to the membership of applicable statutes and regulations governing restrictions on exportation of information. CREN is thus encouraged to transmit or publish the General License GTDA over the network. Perhaps the most troublesome and elusive aspect of The Commerce letter deals with its elaboration of "Bitnet" responsibilities. "Bitnet" is burdened by a "level of care" commensurate with its organizational structure in which members elect "management", "use guidelines" are established, and Trustees or the prime contractor could, at times, learn of the content of transmitted information. That "level of care", however, appears limited to reportage of prospective member violations which are known or should be known by "Bitnet" to be forthcoming. The Commerce Letter evinces confusion about what or who "Bitnet" is, i.e. the members, the Board, and/or the prime contractor. It mistakenly refers to "Bitnet employees." Conferences with the Department of Commerce reveal that the problem lies in a lack of actual guidelines or regulations on the duty of care issue. This paucity of data is not likely to be remedied. In practice, should a Trustee or a representative of the prime contractor know of a prospective violation or have reason to know of a prospective violation, and fail to prevent or report same, CREN could be prosecuted for said violation. If a member knows of a prospective violation or has reason to know of a prospective violation by another member and fails to report same, the passive but aware member would almost certainly not be prosecuted unless it received a benefit from the violation, either pecuniary or in the sense, for example, that it was collaborator in wrongfully disseminated research data. Without some connection between the members regarding the improperly disseminated information, prosecution of the non- reporting, but aware member, would apparently be deemed too remote. No regulation or stated opinion of the Department of Commerce imposes a duty on CREN to actively monitor network transmission. Sanctions for violations of the Export Regulations Act, Act and regulations promulgated thereunder are covered by Section 2410 of the Act. Three categories of sanctions exist. Ordinary violations which are not willful are punished by fines of "not more than five times the value of the exports involved or $50,000.00, whichever is greater, or imprisoned not more than 5 years, or both." (Corporations cannot be imprisoned and, assuming we do not have a violation by an individual acting outside the scope of his corporate duties, it is almost inconceivable that incarceration would be an issue). Willful violations involve somewhat more complex sub-categories but, in the worst instance, expose the corporate offender to fines up to five times the value of the exports involved or $1,000,000.00, and the individual violator to fines up to $250,000.00 or imprisonment for up to 10 years, or both. Civil penalties are also authorized up to $10,000.00 for each violation along with potential suspension or revocation of authority to export. In conclusion, counsel recommends that the proposed connection of entities within Eastern European Countries and The People's Republic of China to the network proceed via entertainment of such applications for processing according to existing membership guidelines. It is further recommended that the General License GTDA Section 2410 of the Export Regulation Act, the Commerce Letter and the Memorandum Opinion of Counsel be disseminated to the membership over the network. All interested parties should be aware that a conservative approach mandates that any questions or gray areas be the subject of inquiries addressed to counsel. --- The file LEGAL COMMERCE: CREN Information Center LEGAL COMMERCE May 31, 1990 Legal Aspects of International Network Communication The network access to foreign countries (especially those which may have restrictions placed upon the information which can legally be sent to them) which is now possible through CREN networks places significant legal responsibilities on CREN Members and Affiliates to ensure that they do not violate federal law by transmitting material to such foreign countries which is not allowed under current law and federal policy. The definitive policy statement regarding what data may be freely distributed is provided by the US Department of Commerce Export Administration Regulations, of which section 779.3, "General License GTDA; Technical Data Available to All Destinations" defines that information which may be distributed without special license from the Department of Commerce. It is the responsibility of each CREN Member and Affiliate to ensure that it abides by these regulations in all respects. The following letter of clarification to CREN from the US Department of Commerce is supplemented by the GTDA policy statement defining General Technical Data Availability and a memo from CREN's counsel, to provide CREN Members and Affiliates with an understanding of the legal issues of which they should be aware in using the networks for communication abroad. These three documents are all available from LISTSERV@BITNIC as the files LEGAL COMMERCE, LEGAL GTDA, and LEGAL COUNSEL, respectively. CREN Members and Affiliates are strongly advised to familiarize themselves with these documents and to take whatever steps are necessary to ensure that their staff and students are not in violation of the federal regulations in their use of the networks. ---------------------------------------------------------------------- UNITED STATES DEPARTMENT OF COMMERCE Bureau of Export Administration Washington, D.C. 20230 Jan. 18, 1990 Mr. James B. Conklin, Jr. Director BITNET Network Information Center EDUCOM 1112 16th Street, N.W. Washington, D.C. 20036 Dear Mr. Conklin: This is in further response to your request for an advisory opinion regarding any applicable U.S. Export Administration Regulations (EAR) that govern your proposal to provide BITNET access to the Soviet Union. We understand that BITNET is an electronic communications network that links computers at more than 480 universities, colleges, collaborating research centers, and some industrial-sector members in the United States. Moreover, BITNET forms a single logical network with NetNorth (Canada) and EARN (Western Europe), and this combined network serves over 1,300 members. The purpose of BITNET (along with EARN and NetNorth) is to permit users to share information (e.g. files and messages) via electronic mail. You indicate further that the BITNET network does not and will not allow a user to log onto another computer on the network. The BITNET guidelines preclude use of the network for commercial traffic. Industrial sector members "are not supposed to use BITNET to communicate with other industrial- sector members except in support of academic activity sponsored by an academic BITNET member." We presume that academic members may also not use the network for commercial traffic. The Office of Technology and Policy Analysis has already provided guidance on the possible physical export of certain commodities to the Soviet Union. However, you have called to inform us there will be no physical exports or reexports from the United States by BITNET of hardware for the network or for the gateway to connect the proposed members in the Soviet Union. Rather, the Soviets will import necessary equipment from third countries or the United Sates through their normal procurement channels. These probably will be no software exported or reexported from the United States by BITNET to establish the network gateway for the Soviet Union. However, you wish further discussion of the rules as they apply to technical data and software to be exported and reexported over the network once it is established. Prohibitions Against the Export of Technical Data and Software In the absence of a validated or general license, the EAR prohibits exports or reexports from the United States of computers, switches, software, and technical data. The term technical data is broadly defined to include virtually all know-how. In addition, the regulations apply to exports in any form, including electronic transmission from the United States and disclosure to a foreign national in the United States or abroad. These regulations apply to both individuals and institutions. As we have indicated to you in our prior correspondence, wide area networks exported to the Soviet Union require an individual validated license. If such validated licenses are issued for exports from the United States of items that will enable the consignee to build a network or establish a gateway for a network, then the EAR does not prohibit or require permission to establish or use such a network so long as prohibited exports are not made over the network. Moreover, the EAR does not require permission to establish a network gateway with wholly foreign origin commodities, software and technical data. However, I must underscore that this letter does not constitute permission or authority for BITNET or any BITNET member or user to export from the United States technical data or software over the BITNET system. Rather, each individual and each institutional member using BITNET for international transmissions is responsible for compliance with the EAR just as they are responsible for compliance with the EAR when making exports in any other fashion. Moreover, this letter should not be taken as an indication of whether third parties will be granted export licenses by the Department of Commerce for exports of commodities or software necessary to establish the gateway to the Soviet Union. Responsibility of BITNET The scope of responsibility of BITNET for the violations of the EAR by its members using the network is a question you have raised in meetings with our staff. You have explained that BITNET does not monitor traffic on the network. It is a non-secure network. However, BITNET does adopt usage limitations, and members find it in their self-interest to report violations of those rules to BITNET management. It is our understanding that if members see lines busy with commercial messages, they have an incentive to report that violation of your usage rules to BITNET management. Under the EAR, BITNET may not participate in any activity with actual knowledge or reason to know a member is about to use the network to export technical data or software unlawfully. Therefore, there is a level of care required of BITNET. The regulations do not require BITNET to initiate monitoring. In this respect, BITNET has taken the position that it is similar to a telephone common carrier, which is not responsible for the illegal export of technical data over its lines by a subscriber, so long as that happens without the knowledge or reason to know of the common carrier. In our opinion, BITNET has a closer relationship to its members than a telephone carrier has with its subscribers. This is because BITNET management is elected by the membership, BITNET sets network use guidelines, and at least on occasion, BITNET learns of violations of its own usage limitations from its members. For these reasons, BITNET has more opportunity to learn of the export activities of its members than does a telephone common carrier. In exercising its appropriate duty of care under the EAR, BITNET must take into account information provided to it by members in the normal course of BITNET's business. As noted below, BITNET is also different from the telephone common carrier to the extent that BITNET maintains its own data services or data bases. BITNET itself is the exporter of such data if BITNET employees place the data on the network in a manner that renders it available to foreign users of the network. In our meetings, BITNET has indicated an interest in informing its members of the scope of the export controls imposed by the EAR. When you first inquired of OTPA in person, we were preparing a revision of General License GTDA, which has since been issued in final form on October 3, 1989. That general license is especially significant for members of the academic community because it clarifies the authority to export certain fundamental research and publicly available information to any destination, including the Soviet Union. General License GTDA: Fundamental Research, Publicly Available Information, and Educational Information We welcome the interest of BITNET in publishing the new General License GTDA on the network for your members. A copy is attached for your convenience. That rule includes several specific examples intended to illustrate the scope of the general license. A complete discussion of General License GTDA is beyond the scope of this letter. However, a few comments about GTDA are in order. General License GTDA authorizes the export of information arising during or resulting from fundamental research. Under General License GTDA, "fundamental research" is defined to be: [B]asic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons as defined . . . Section 779.3(c). General License GTDA also authorizes the export of information that is publicly available and educational information. Publicly available information includes, among other items, information generally accessible to the interested public in any form including: 1. Publication in periodicals and books, 2. Availability in libraries open to the public, or 3. Release at open conferences, meetings, etc. Educational information includes information: [R]eleased by instruction in catalog courses and associated teaching laboratories of academic institutions. Section 779.3(d). If information qualifies for General License GTDA under any category, the general license remains available even though not exported in the same form. For example, information taught in a catalog course at one university may be exported by a means other than release to foreign nationals in a classroom. In addition, the information may be exported by a party other than the first instructor or institution to teach the material in the classroom. It is also important to note that the publication of a patent in a government office accessible to the public makes the disclosed information "publicly available" within the meaning of this general license. (Of course, patented information is not in the public domain for purposes of intellectual property protection.) BITNET Data Services Your letter refers to user access to BITNET servers and data services. You have informed us by telephone that such information is not proprietary and is published electronically without restriction on distribution and without charge by the author or generator. For information and software placed on the network by BITNET officers and employees, BITNET is the exporter and is responsible for the proper general or validated license for its export. However, such information likely qualifies for General License GTDA. The questions and answers provided by the new rule should give you parameters of General License GTDA as it applies to such data. If you remain uncertain as to whether such data is publicly available or otherwise qualifies for General License GTDA, you may provide us with specific descriptions of the data and information surrounding its availability. We will then provide you with a formal classification as the general license eligibility. However, you have also told our staff that in the future, BITNET may add proprietary data bases that will not qualify for General License GTDA. If BITNET becomes the provider of such information in the future, BITNET will be the exporter. If you enter this area of distribution, BITNET will require classification of the technical data before you can determine the application of the EAR. You will also require more information concerning the EAR than we can provide in this letter. The know-how may or may not require a validated export license to all destinations. It may or may not require written assurances against reexport of the technical data to the Soviet Bloc, the PRC, and the boycotted countries of North Korea, Vietnam, Cambodia, Cuba, and Libya. Exports of Software Certain software requires a validated license for export to the Soviet Union. If your members or users export software by file transfer over the network, they must establish or obtain the appropriate general license or validated license. A few forms of software, such as semiconductor design software and software for numerical controlled machine tools, require a validated license to all destinations. Several other types of software are COCOM embargoed for the Soviet Union; and they may be exported to Free World destinations only after the exporter first receives from his consignee written assurances that the software will not be reexported to the Warsaw Pact, the PRC, and Country Groups S and Z (North Korea, Vietnam, Cambodia, Cuba, and Libya). The scope of this letter will not permit a complete description of every aspect of software controls under the EAR. However, we understand you intend to publish this letter on the network; and that will give BITNET users notice that the export of software requires an appreciation of the EAR. Remote Computing and Diversion in Place You have indicated that the network does not enable a user to log onto a remote computer and use the computing capabilities of that remote computer. Rather, the BITNET system only permits the remote party to compel the transfer of a file on a remote computer, when that file has been placed in the network by a user who knows that it will then be exported to a foreign user. If the network permitted remote computing by foreign users, that would raise questions for Commerce. For foreign computers, we have long applied a theory we refer to as diversion in place. For example, if a computer is exported to western country "A: for use in that country, then the stated end-use for the export is breached or violated if a user in eastern country "B" enters that computer via modem and telephone line in a manner that enable him to use the computing power of the computer. He is doing indirectly that which has not been authorized directly, i.e. use of such a computer in country "B." For supercomputer installations outside the United States and Japan, there are security safeguard plans in effect. While this may be more relevant for EARN, BITNET should also be aware of basic prohibitions: 1. Both direct and remote computational access by COCOM-proscribed nationals or work done on their behalf. 2. Transfer of technical data or software derived from the use of supercomputer which relate to COCOM- controlled items. I trust that this letter will answer your request regarding BITNET access to the Soviet Union and other destinations. If you have any more specific questions, please contact either Dan Cook at 377-4188 or Larry Christensen at 377-5305. Sincerely, William L. Clements Director Office of Technology and Policy Analysis --- The file LEGAL GTDA: CREN Information Center Legal GTDA May 31, 1990 General License GTDA Technical Data Available to All Destinations The network access to foreign countries (especially those which may have restrictions placed upon the information which can legally be sent to them) which is now possible through CREN networks places significant legal responsibilities on CREN Members and Affiliates to ensure that they do not violate federal law by transmitting material to such foreign countries whic his not allowed under current law and federal policy. The definitive policy statement regarding what data may be distributed is provided by the US Department of Commerce Export Administration Regulations, of which section 779.3, "General License GTDA; Technical Data Available to All Destinations" defines that information which may be distributed without special license from the Department of Commerce. It is the responsibility of each CREN Member and Affiliate to ensure that it abides by these regulations in all respects. The following GTDA policy statement defining General Technical Data Availability is supplemented by a letter of clarification to CREN from the US Department of Commerce and a memo from CREN's counsel, to provide CREN Members and Affiliates with an understanding of the legal issues of which they should be aware in using the networks for communication abroad. These three documents are all available from LISTSERV@BITNIC as the files LEGAL GTDA, LEGAL COMMERCE, and LEGAL COUNSEL, respectively. CREN Members and Affiliates are strongly advised to familiarize themselves with these documents and to take whatever steps are necessary to ensure that their staff and students are not in violation of the federal regulations in their use of the networks. NOTE: The following includes the "General License GTDA: Technical Data Available to All Destinations" portion of the U.S. Department of Commerce Export Administration Regulations, as modified and effective October 3, 1989. For further information, contact Jim Seevaratnum, Bureau of Export Administration, (202) 377-5695. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PART 779 - (AMENDED) 1. The authority citation for 15 CFR part 779 continues to read as follows: Authority: Pub. L. 96-72, 93 Stat. 503 (50 U.S.C. app. 2401 et seq.), as amended by Pub. L. 97-145 of Dec. 29, 1981, by Pub. L. 99-64 of July 12, 1985, and by Pub. L. 100-418 of Aug. 23, 1988; E.O. 12525 of July 12, 1985 (50 FR 28757, July 16, 1985); Pub. L. 95-223 of Dec. 28, 1977 (50 U.S.C. 1701 et seq); E.O. 12532 of Sept. 9, 1985 (50 FR 36861, Sept, 10, 1985) as affected by notice of Sept. 4, 1986 (51 FR 31925, Sept. 8, 1986); Pub. L. 99-440 of Oct. 2, 1986 (22 U.S.C. 5001 et seq); and E.O. 12571 of Oct. 27, 1986 (51 FR 39505, Oct. 29, 1986). 2. Section 779.3 is revised to read as follows: $ 779.3 General license GTDA; technical data available to all destinations Note: in this $ 779.3 the word "information" means "technical data" as defined in $ 779.1 including software (a) Establishment of general license. A General License GTDA is hereby established authorizing: (1) Unrestricted export to any destination of information that is already publicly available or will be made publicly available as described in paragraph (b) of this section; (2) Unrestricted export to any destination of information arising during or resulting from fundamental research, as described in paragraph (c) of this section; Note: Paragraphs (a)(1) and (a)(2) of this section do not authorize the export of data contained in a patent application for purposes of filing and/or publishing for opposition abroad. Such exports are controlled by the U.S. Patent and Trademark Office and must be licensed by that office. See EAR $ 770.10(j). (3) Release of educational information, as described in paragraph (d) of this section; and (4) Export of information in connection with certain patent applications, as described in paragraph (e) of this section. Note 1: See paragraph (1) regarding Government sponsored research covered by contractual national security controls and the note following this section regarding consulting and training. Use of General License GTDA is subject to the prohibitions of $ 771.2(C) (1), (4), and (9), but not to the other prohibitions of $ 771.2 (c). Note 2: Supplement No. 5 to part 779 contains explanatory questions and answers about the use of General License GTDA. Certain paragraphs of this $ 779.3 are followed by references to relevant questions and answers in supplement No. 5. (b) Publicly available. Information is made public and so becomes "publicly available" when it becomes generally accessible to the interested public in any form, including: (1) Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons, such as those in a scientific or engineering discipline, interested in the subject matter either free or at a price that does not exceed the cost of reproduction and distribution (see Questions A(1) through A(6)); (2) Ready availability at libraries open to the public or at university libraries (see Question A(6)); (3) Patents available at any patent office; and (4) Release at an open conference, meeting, seminar, trade show, or other open gathering. (i) A conference or other gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (not necessarily a recording) of the proceedings and presentations. (ii) All technically qualified members of the public may be considered eligible to attend a conference or other gathering notwithstanding: (A) A registration fee reasonably related to costs and reflecting an intention that all interested and technically qualified persons be able to attend, or (B) A limitation on actual attendance, as long as attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility (see Questions B(1) through B(6)). This General License GTDA authorizes submission of papers to domestic or foreign editors or reviewers of journals, or to organizers of open conferences or other open gatherings, with the understanding that the papers will be made publicly available if favorably received. (See Questions A(1) and A(3).) (c) Information resulting from fundamental research--(1) Fundamental research. Paragraphs (c)(2) through (c)(4) and paragraph (f) of this section provide specific operational rules that will be used to determine whether research in particular institutional contexts qualifies as "fundamental research." The intent behind those operational rules is to identify as "fundamental research" basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons as defined in $ 779.3(f). (See Question D(8).) (2) University-based research. (i) Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research, as described below. ("University" means any accredited institution of higher education located in the United States.) (ii) Prepublication review by a sponsor of university research solely to ensure that publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the rule described in paragraph (c)(2)(i) of this section. However, General License GTDA does not authorize the release of information from a corporate sponsor to university researchers where the research results are subject to prepublication review. See other sections in this part 779 for provisions that may authorize such releases without a validated license. (See Questions D(7), D(9), and D(10).) (iii) Prepublication review by a sponsor of university research solely to ensure that publication would not compromise patent rights does not change the rule described in paragraph (c)(2)(i) of this section, so long as the review causes no more than a temporary delay in publication of the research results. (iv) However, General License GTDA does not authorize the initial transfer of information from an industry sponsor to university researchers where the parties have agreed that the sponsor may withhold from publication some or all of the information so provided. (See Question D(2).) (v) University based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example, of an industrial sponsor) other restrictions on publication of scientific and technical information resulting from the project or activity. Scientific and technical information resulting from the research will nonetheless become subject to General License GTDA once all such restrictions have expired or have been removed. (See Questions D(7) and D(9).) (vi) The provisions of paragraph (f) of this section will apply if a university or its researchers accept specific national security controls (as defined in paragraph (f) of this section) on a research project or activity sponsored by the U.S. Government. (See Questions E(1) and E(2).) (3) Research based at Federal agencies or FFRDCs. Research conducted by scientists or engineers working for a Federal agency or a Federally Funded Research and Development Center (FFRDC) may be designated as "fundamental research" within any appropriate system controlling release of information by such scientists and engineers devised by the agency or the FFRDC. (See Questions D(8) and D(11).) (4) Corporate research. (i) Research conducted by scientists or engineers working for a business entity will be considered "fundamental research" at such time and to the extent that the researchers are free to make scientific and technical information resulting from the research publicly available without restriction or delay based on proprietary concerns or specific national security controls as defined in paragraph (f) of this section. (ii) Prepublication review by the company solely to ensure that the publication would compromise no proprietary information provided by the company to the researchers is not considered to be a proprietary restriction under paragraph (c)(4)(i) of this section. However General License GTDA does not authorize the release of information to university researchers where the research results are subject to prepublication review. See other sections in this part 779 for provisions that may authorize such releases without a validated license. (See Questions D(8), D(9), and D(10).) (iii) Prepublication review by the company solely to ensure that prepublication would compromise no patent rights will not be considered a proprietary restriction for this purpose, so long as the review causes no more than a temporary delay in publication of the research results. (iv) However, General License GTDA does not authorize the initial transfer of information from a business entity to researchers where the parties have agreed that the business entity may withhold from publication some or all of the information so provided. (5) Research based elsewhere. Research conducted by scientists or engineers who are not working for any of the institutions described in paragraphs (c)(2) through (c)(4) of this section will be treated as corporate research, as described in paragraphs (c)(2) through (c)(4) of this section will be treated as corporate research, as described in paragraph (c)(4) of this section. (See Question D(8)). (d) Educational information. The release of "educational information" referred to in paragraph (a)(3) of this section is release by instruction in catalog courses and associated teaching laboratories of academic institutions. Dissertation research is treated in paragraph (c)(2) of this section. (See Question C(1) through C(6).) (e) Patent applications. The information referred to in paragraph (a)(4) of this section is: (1) Information contained in a patent application prepared wholly from foreign-origin technical data where the application is being sent to the foreign inventor to be executed and returned to the United States for subsequent filing in the U.S. Patent and Trademark office; (2) Information contained in a patent application, or an amendment, modification, supplement, or division of an application, and authorized for filing in a foreign country in accordance with the regulations of the Patent and Trademark Office, 37 CFR part 5 (see $ 770.10(j)); or (3) Information contained in a patent application when sent to a foreign country before or within six months after the filing of a United States patent application for the purpose of obtaining the signature of an inventor who was in the United States when the invention was made or who is a co-inventor with a person residing in the United States. (f) Government-sponsored research covered by contract controls. (1) If research is funded by the U.S. Government, and specific national security controls are agreed on to protect information resulting from the research, paragraph (a)(2) of this section will not apply to any export of such information in violation of such controls. General License GTDA as described in paragraph (a)(2) of this section is nonetheless available for any export of information resulting from the research that is consistent with the specific controls. (2) Examples of "specific national security controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research. A general reference to one or more export control laws or regulations or a general reminder that the Government retains the right to classify is not a "specific national security control". (See Questions E(1) and E(2).) (g) Advice concerning uncontrolled information. Persons may be concerned that an export of uncontrolled information could adversely affect U.S. national security interests. Exporters who wish advice before exporting such information can contact the appropriate Government scientific or technical personnel by calling the Bureau of Export Administration at (202) 377-4811. Note: Consulting and training. Technical data can be inadvertently exported in various ways. Consulting and training are especially effective mechanisms of technology transfer. The exporter should be aware that the Department of Commerce maintains controls on exports of technical data that do not qualify for General License GTDA as described in paragraphs (a)(1) through (a)(3) of this section, including application abroad of personal knowledge or technical experience acquired in the United States. (See also paragraph (g) of this section and Question F(1).) (Approved by the Office of Management and Budget under control number 065- 0011) 3. A new supplement No. 5 to part 779 is added to read as follows: Supplement No. 5 to Part 779--Questions and answers--General License GTDA This supplement No. 5 contains explanatory questions and answers about General License GTDA. This Supplement is divided into six sections according to topic as follows: Section A: Publication of technical data and exports of technical data that has been or will be published. Section B: Release of technical data at conferences. Section C: Educational instruction. Section D: Research, correspondence, and informal scientific exchanges. Section E: Federal contract controls. Section F: Commercial consulting. Section G: Software. Section H: Available in a public library. Section I: Miscellaneous Section A: Publication Question A(1): I plan to publish in a foreign Journal a scientific paper describing the results of my research, which is in a area listed in $ 779.4(d). Do I need a validated license? Answer: No. General License GTDA permits unrestricted export to any destination not only of technical data that are already publicly available, but of technical data that are made public by the transaction in question ($ 779.3(a)(1)). Your research results would be made public by the planned publication. You would not need a validated license. Question A(2): Would the answer differ depending on where I work or where I performed the research? Answer: No. Of course, the General License would not relieve you from any restrictions on publications that your employer or another sponsor of your research may have imposed. Question A(3): Would it make any difference if I published in a foreign journal? Would I need a validated license to send the paper to the editors for review? Answer: No to both questions. General license GTDA authorizes submission of papers to editors or reviewers of journals, including foreign journals, if the intention is that the papers will be published if favorably received $ 779.3(b), last paragraph). Question A(4): The research on which I will be reporting in my paper is supported by a grant from the Department of Energy. The grant requires prepublication clearance by DOE: Does that make any difference under the Export Administration Regulations? Answer: No; GTDA would still apply. But if you publish in violation of the controls you have accepted in the Grant, you will be subject to appropriate administrative, civil, and possible criminal sanctions under other laws. Question A(5): We provide consulting services on the design, layout, and construction of integrated circuit plants and production lines. A major part of our business is the publication for sale to clients of detailed handbooks and reference manuals on key aspects of the design and manufacturing processes. A typical cost of publishing such a handbook and manual might be $500; the typical sales price is around $15,000. Does general license GTDA cover publication and sale of such handbooks or manuals? Answer: No. The price is above the cost of reproduction and distribution ($ 779.3(b)(1)). Thus, you would need some other form of license before you could export any of these handbooks or manuals. Question A(6): My Ph.D. thesis on a subject listed in $ 779.4(d) has never been published for general distribution. However, it is available at the institution from which I took the degree. Do I need a validated license to send another copy to a colleague overseas? Answer: That may depend on where in the institution it is available. It is is not readily available in the university library (e.g., by filing in open stacks with a reference in the catalog), it is not "publicly available" and the GTDA license would not be available on that ground. The GTDA license would still be applicable if you Ph.D. research qualified as "fundamental research" under $ 779.3(c). If not, however, you will need some other form of license before you can send a copy out of the country. Question A(7) : We sell electronically recorded information, including software and databases, at wholesale and retail. Our products are available by mail order to any member of the public, though intended for specialists in various fields. They are priced to maximize sales to persons in those fields. Do we need validated license to sell our products to foreign customers? Answer: You would not need a validated license for otherwise controlled technical data or software if the technical data and software are made publicly available at a price that does not exceed the cost of production and distribution to the technical community. Even if priced at a higher level, General License GTDA authorizes the export if the technical data or software source code is in a library accessible to the public. ($ 779.3(b)(1). Section B: Conferences Question B(1): I have been invited to give a paper at a prestigious international scientific conference on a subject listed in $ 779.4 (d). Scientists in the field are given an opportunity to submit applications to attend. Invitations are given to those judged by a panel of scientific peers to be the leading researchers in the field, and attendance is by invitation only. Attendees will be free to take notes, but not make electronic or verbatim recordings of the presentation or discussions. Some of the attendees will be foreigners. Do I need a validated license to give my paper? Answer: No. General License GTDA is available for release of information at an open conference. The conference you describe fits the definition of an open conference ($ 779.3(a)(1) and (b)(4)). Question B(2): Would it make any difference if there were a prohibition on making any notes or other personal record of what transpires at the conference? Answer: Yes. To qualify as an "open" conference, attendees must be permitted to take notes or otherwise make a personal record (although not necessarily a recording). If note taking or the making of personal records is altogether prohibited, the conference would not be considered "open." Question B(3): Would it make any difference if there were also a registration fee? Answer: That would depend on whether the fee is reasonably related to costs and reflects an intention that all interested and technically qualified persons should be able to attend ($ 779.3 (b)(4)(ii)(A)). Question B(4): Would it make any difference if the conference were to take place in another country? Answer: No. Question B(5): Must I have a validated license to send the paper I propose to present at such a foreign conference to the conference organizer for review? Answer: No. General license GTDA authorizes submission of papers to foreign organizers of open conferences or other open gatherings with the intention that the papers will be delivered at the conference, and so made publicly available, if favorably received ($ 779.3(b), last paragraph). Question B(6): Would the answers to any of the foregoing questions be different if my work were supported by the Federal Government? Answer: No. You may use GTDA to export the papers, even if the release of the paper violates any agreements you have made with your government sponsor. However, nothing in the Export Administration Regulations relieves you of responsibility for conforming to any controls you have agreed to in your Federal grant or contract. Section C: Educational Instruction Question C(1): IU teach a university graduate course on design and manufacture of very high-speed integrated circuitry. Many of the students are foreigners. Do I need a validated license to teach this course? Answer: No. Release of information by instruction in catalog courses and associated teaching laboratories of academic institutions is licensed under general license GTDA ($ 779.3(d)). Question C(2): Would it make any difference if some of the students were from Communist Bloc countries? Answer: No. Question C(3): Would it make any difference if I talk about recent and as yet unpublished results from my laboratory research? Answer: No. Question C(4): Even if that research is funded by the Government? Answer: Even then the general license would apply, but the export Administration Regulations would not release you from any separate obligations you have accepted in your grant or contract. Question C(5): Would it make any difference if I were teaching at a foreign university? Answer: No. Question C(6): We teach proprietary courses on design and manufacture of high-performance aircraft and missles. Is the instruction in our classes covered by the GTDA license? Answer: That instruction would not qualify as "release of educational information" under $ 779.3(a)(3) because your proprietary business does not qualify as an "academic institution" within the meaning of $ 779.3(d). Conceivably, however, the instruction might qualify as "release at an open *** seminar, *** or other open gathering" under $ 779.3 (b)(4). The conditions for qualification of such a seminar or gathering as "open," including a fee "reasonably related to costs (of the conference, not of producing the data) and reflecting an intention that all interested and technically qualified persons be able to attend," would have to be satisfied. Section D: Research, Correspondence, and Informal Scientific Exchanges Question D(1): Do I need a validated license in order for a foreign graduate student to work in my laboratory? Answer: Not if the research on which the foreign student is working qualifies as "fundamental research" under $ 779.3(c). In that case, the GTDA general license is available. Question D(2): Our company has entered into a cooperative research arrangement with a research group at a university. One of the researchers in that group is a Polish national. We would like to share some of our proprietary information with the university research group. We have no way of guaranteeing that this information will not get into the hands of the Polish scientist. Do we need to obtain a validated license to protect against that possibility? Answer: No. General License GTDA authorizes the disclosure of information to any scientists, engineers, or students at a U.S. university in the course of industry-university research collaboration under specific arrangements between a firm and the university, provided these arrangements do not permit the sponsor to withhold from publication any of the information that he provides to the researchers. However, if your company and the researchers have agreed to a prohibition on publication, then you must qualify for another general license or obtain a validated license before transferring the information to the university. It is important that you as the corporate sponsor and the university get together to discuss whether foreign nationals will have access to the information, so that you may obtain any necessary export authorization prior to transferring the information to the research team. Question D(3): My university will host a prominent scientist from the Soviet Union who is an expert on research in engineered ceramics and composite materials. Do I require a validated license before telling our visitor about my latest, as yet unpublished, research results in those fields? Answer: Probably not. If you performed your research at the university, and you were subject to no contract controls on release of research results agreed to with a sponsor of the research, your research would qualify as "fundamental research" ($ 779.3(c)(2)). Unrestricted export of information arising during or resulting from such research is covered by general license GTDA (779.3(a)(2)). You should probably assume, however, that your visitor will be debriefed later about anything of potential military value he learns from you. If you are concerned that giving such information to him, even through licensed, could jeopardize U.S. security interests, the Commerce Department can put you in touch with appropriate Government scientists who can advise you. Write to Department of Commerce, Bureau of Export Administration, Office of Technology and Policy Analysis, P.O. Box 273, Washington, D.C. 20044. Question D(4): Would it make any difference if I were proposing to talk with a Soviet expert in the Soviet Union? Answer: No, if the information in question arose during or resulted from the same "fundamental research." Question D(5): Could I properly do some work with him in his research laboratory inside the Soviet Union? Answer: Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience, and such an export is subject to the Export Administration Regulations ($ 779.1(b)(1)(iii) and (2)(iii) and $ 779.2). Such an export must be licensed. If any of the knowledge or experience you export in this way is not covered by general license, you would need a validated license. Question D(6): I would like to correspond and share research results with a Soviet-Bloc expert in my field, which is listed in $ 779.4(d). Do I require a validated license to do so? Answer: Not as long as we are still talking about information that arose during or resulted from research that qualifies as "fundamental" under the rules spelled out in $ 779.3(c). Question D(7): Suppose the research in question were funded by a corporate sponsor and I had agreed to prepublication review of any paper arising from the research? Answer: Whether your research would still qualify as "fundamental" would depend on the nature and purpose of the prepublication review. If the review is intended solely to ensure that your publications will neither compromise patent rights nor advertently divulge proprietary information that the sponsor has furnished to you, the research could still qualify as "fundamental." But if the sponsor will consider as part of its prepublication review whether it wants to hold your new research results as trade secrets or otherwise proprietary information (even if your voluntary cooperation would be needed for it to do so), your research would no longer qualify as "fundamental." As used in these regulations it is the actual and intended openness of research results that primarily determines whether the research counts as "fundamental" and so comes under general license GTDA. Question D(8): In determining whether research is thus open and therefore counts as "fundamental," does it matter where or in what sort of institution the research is performed? Answer: In principle, no. "Fundamental research" is performed in industry, Federal laboratories, or other types of institutions, as well as in universities. The regulations introduce some operational presumptions and procedures that can be used both by those subject to the regulations and by those who administer them to determine with some precision whether a particular research activity is covered. Recognizing that common and predictable norms operate in different types of institutions, the regulations use the institutional locus of the research as a starting point for these presumptions and procedures. Nonetheless, it remains the type of research, and particularly the intent and freedom to publish, that identifies "fundamental research"--not the institutional locus ($ 779.3(C)). Question D(9): I am doing research on high-powered lasers in the central basic-research laboratory of an industrial corporation. I am required to submit the results of my research for prepublication review before I can publish them or otherwise make them public. I would like to compare research results with a scientific colleague from an East Bloc country and discuss the results of the research with her when she visits the United States. Do I need a validated license to do so? Answer: You probably do need a validated license ($ 779.3(c)(4)). However, if the only restriction on your publishing any of that information is a prepublication review solely to ensure that publication would compromise no patent rights or proprietary information provided by the company to the researcher, your research may be considered "fundamental research," in which case you may be able to share information under the GTDA general license. Note that GTDA will not be available if the prepublication review is intended to withhold the results of the research from publication. Question D(10): Suppose I have already cleared my company's review process and am free to publish all the information I intend to share with my colleague, though I have not yet published? Answer: If the clearance from your company means that you are free to make all the information publicly available without restriction or delay, the GTDA license will apply and you will not need a validated license for this exchange ($ 779.3(c)(4)). Question D(11): I work as a researcher at a Government-owned, contractor- operated research center. May I share the results of my unpublished research with foreign nationals without concern for export controls under the Export Administration Regulations? Answer: That is up the sponsoring agency and the center's management. If your research is designated "fundamental research" within any appropriate system devised by them to control release of information by scientists and engineers at the center, it will be treated as such by the Commerce Department, and the GTDA license will apply. Otherwise, you would need some other form of license, except to publish or otherwise make the information public ($ 779.3(c)(3)). Section E: Federal Contract Controls Question E(1): In a contract for performance of research entered into with the Department of Defense, we have agreed to certain national security controls. DOD is to have ninety days to review any papers we proposed before they are published and must approve assignment of any foreign nationals to the project. The work in question would otherwise qualify as "fundamental research" under $ 779.3(c). Does the GTDA license cover information arising during or resulting from this sponsored research? Answer: Any "export" inconsistent with the controls you have agreed to will not qualify for export under GTDA as "fundamental research." Any "export" consistent with the controls will qualify for export under GTDA as "fundamental research." Thus, if you abide by the specific controls you have agreed to, you need not be concerned about violating the Export Administration Regulations. If you violate those controls and export information as "fundamental research" under $ 779.3(c), you may subject yourself to the sanctions provided for under the Export Administration Regulations, including criminal sanctions, in addition to administrative and civil remedies for breach of contract. Question E(2): Do the Export Administration Regulations restrict my ability to publish the results of my research? Answer: The Export Administration Regulations are not the means for enforcing the national security controls you have agreed to. If such a publication violates the contract, you would be subject to administrative, civil, and possible criminal penalties under other law. Section F: Commercial Consulting Question F(1): I am a professor at a U.S. university, with expertise in design and creation of submicron devices. I have been asked to be a consultant for a "third-world" company that wishes to manufacture such devices. Do I need a validated license to do so? Answer: Quite possibly you do. Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience that is subject to the Export Administration Regulations ($ 779.1(b)(1)(iii) and (2)(iii), and $ 779.2). Such an export must be licensed. If any part of the knowledge or experience you export in this way is not covered by general license, you would need a validated license. Section G: Software Question G(1): Does General License GTDA authorize the export of software in machine readable code when the source code for such software is publicly available? Answer: If the source code of a software program is publicly available, then the machine readable code compiled from the source code is software that is publicly available and therefore eligible for General License GTDA. Question G(2): Does General License GTDA authorize the export of software sold at a price that does not exceed the cost of reproduction and distribution? Answer: Software in machine readable code is publicly available if it is available to a community at a price that does not exceed the cost of reproduction and distribution. Such reproduction and distribution costs may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions either in your company or in a third party contribution system. In your company, such costs may not include recovery for development, design, or acquisition. In this case, the provider of the software does not receive a fee for the inherent value of the software. Question G(3): Does General License GTDA authorize the export of software sold at a price BXA concludes in a classification letter to be sufficiently low to qualify the particular software for General License GTDA? Answer: In response to classification requests, BXA may choose to classify certain software as eligible for General License GTDA even though it is sold at a price above the costs of reproduction and distribution as long as the price is nonetheless sufficiently low to qualify for such a classification in the judgement of BXA. Section H: Available in a Public Library Question H(1): Does General License GTDA authorize the export of information available in a library and sold through an electronic or print service? Answer: Electronic and print services for the distribution of information may be relatively expensive in the marketplace because of the value venders add in retrieving and organizing information in a useful way. If such information is also available in a library--itself accessible to the public-- or has been published in any way, that information is "publicly available" for those reasons, and the information itself remains eligible for General License GTDA even though you access the information through an electronic or print service for which you or your employer pay a substantial fee. Question H(2): Does General License GTDA authorize the export of information available in an electronic form in a library at no charge to the library patron? Answer: Information available in an electronic form at no charge to the library patron in a library accessible to the public is information publicly available even though the library pays a substantial subscription fee for the electronic retrieval service. Question H(3): Does General License GTDA authorize the export of information available in a library and sold for more than the cost of reproduction and distribution? Answer: Information from books, magazines, dissertations, papers, electronic data bases, and other information available in a library that is accessible to the public qualifies for General License GTDA. This is true even if you purchase such a book at more than the cost of reproduction and distribution. In other words, such information is "publicly available" even though the author makes a profit on your particular purchase for the inherent value of the information. Section I: Miscellaneous Question I(1): The manufacturing plant that I work at is planning to begin admitting groups of the general public to tour the plant facilities. We are concerned that an export license might be required if the tour groups include foreign nationals. Would such a tour constitute an export? If so, does General License GTDA authorize this type of export? Answer: EAR $ 779.1(b) defines exports of technical data to include release through visual inspection by foreign nationals of U.S.-origin equipment and facilities. Consequently, you must obtain export authorization prior to permitting foreign nationals to tour your facilities. Such an export qualifies under the "publicity available" provision of General License GTDA so long as the tour is truly open to all members of the public, including your competitors, and you do not charge a fee that is not reasonably related to the cost of conducting the tours ($ 779.3(a)(1)). Question I (2): Does General License GTDA authorize the export of information not in a library or published, but sold at a price that does not exceed the cost of reproduction and distribution? Answer: Information that is not in a library accessible to the public and that has not been published in any way, may nonetheless become "publicly available" if you make it both available to a community of persons and if you sell it at no more than the cost of reproduction and distribution. Such reproduction and distribution costs may include variable and fixed cost allocations of overhead and normal profit for the reproduction and distribution functions either in your company or in a third party distribution system. In your company, such costs may not include recovery for development, design, or acquisition of the technical data or software. The reason for this conclusion is that the provider of the information receives nothing for the inherent value of the information. Question I(3): Does General License GTDA authorize the export of information contributed to an electronic bulletin board? Answer: Assume each of the following: 1. Information is uploaded to an electronic bulletin board by a person that is the owner or originator of the information; 2. That person does not charge a fee to the bulletin board administrator or the subscribers of the bulletin board; and 3. The bulletin board is available for subscription to any subscriber in a given community regardless of the cost of subscription. Such information is "publicly available" and therefore eligible for General License GTDA even if it is not elsewhere published and is not in a library. The reason for this conclusion is that the bulletin board subscription charges or line charges are for distribution exclusively, and the provider of the information receives nothing for the inherent value of the information. Question I(4): Does General License GTDA authorize the export of patented information fully disclosed on the public record? Answer: Information to the extent it is disclosed on the patent record open to the public is eligible for General License GTDA even though you may use such information only after paying a fee in excess of the costs of reproduction and distribution. In this case the seller does not receive a fee for the inherent value of the technical data; however, General License GTDA is nonetheless available because any person can obtain the technical data from the public record and further disclose or publish the information. For that reason, it is impossible to impose export controls that deny access to the information. Dated: September 25, 1989. James M. LeMunyon, Deputy Assistant Secretary for Export Administration [FR Doc. 89-23046 Filed 10-2-89; 8:45 a.m.] Billing Code 3510-DT-M