Export-controlled information or material is any information or material that cannot be released to foreign nationals or representatives of a foreign entity, without first obtaining approval or license from the Department of State for items controlled by the International Traffic in Arms Regulations (ITAR), or the Department of Commerce for items controlled by the Export Administration Regulations (EAR). Export-controlled information must be controlled as sensitive information and marked accordingly. A large, frequently updated database of information on export regulations is available at www.bis.doc.gov.
One objective of the ITAR and EAR is to prevent foreign citizens, industry, or governments, or their representatives, from obtaining information that is contrary to the national security interests of the United States.
Different laws and regulations use different definitions of a U.S. person, U.S. national, and foreign national. This is a source of considerable confusion in implementing international security programs.
The rules are especially confusing when dealing with an immigrant alien who possesses a green card for permanent residence in the U.S. For the purpose of export control regulations, such an individual is a "U.S. person" and can be allowed access to export-controlled information without an export license. If the export controlled information is classified, however, the regulations for release of classified information apply. According to the National Industrial Security Program Operating Manual, a permanent resident with a green card is still a foreign national and not a "U.S. person." Therefore, such an individual cannot have access to classified export-controlled information.
Statutory/Regulatory Responsibilities & Obligations
Access to Export-Controlled Information
Marking Export-Controlled Information
All documents that contain export-controlled technical data must be marked with the following warning:
Safeguarding Export-Controlled Information
The possessor of export-controlled information must deny the opportunity for access to foreign nationals or any unauthorized person. Records must be maintained for all exports of items on the Department of Commerce Control List for a period of at least two years. Records of the export of items listed on the ITAR must be maintained for five years.
Export-controlled information may be put on an Internet web site only if access to the site is limited to a specific target audience that is authorized to have the information and the information is encrypted. See Pre-Publication Review of Web Site Content.
Department of Defense technical data subject to export controls shall be safeguarded as described in Technical Data.
The penalty for unlawful export of items or information controlled under the ITAR is up to 2 years imprisonment, or a fine of $100,000, or both. The penalty for unlawful export of items or information controlled under the EAR is a fine of up to $1,000,000 or five times the value of the exports, whichever is greater; or for an individual, imprisonment of up to 10 years or a fine of up to $250,000 or both.
Legal & Regulatory Authorities