It may have already happened at your university or its supporting foundation—you just don’t know it yet. A faculty member has solicited and received a gift of a piece of equipment—for example, a special type of passive sensor—from a company active in the faculty member’s area of study.
Or perhaps the faculty member uses private funds held by your foundation to purchase the equipment so it does not have to go through the normal procurement process. The equipment has already been delivered and is in use in the faculty member’s lab. It has not been secured, and it is possible that foreign graduate students have had access to it, or the faculty member shared information about the sensors and details from their research with a foreign colleague as part a collaborative effort or even through a presentation at a conference. Possibly the research is stored using cloud computing or on a computer that is then taken outside the country for unrelated purposes.
Regardless, in all instances, your institution would be liable if access to those sensors or the information about them is export controlled. If it was a gift, there may not even be a paper trail or gift receipt. If the equipment was purchased through your university’s foundation, it may have been acquired and immediately transferred to the university with little oversight.
Six months after the equipment is acquired, the department head receives a notice from the company that the equipment had been placed on the U.S. Munitions List (USML) or the Commerce Control List (CCL) a few months before. The next phone call you receive is from the department head telling you that someone from the government is at his lab asking questions about his equipment.
The International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) are federal regulations that prohibit the export of certain controlled materials, equipment, software, technologies, and information to foreign countries. An export may be the actual shipment or transmission of such controlled items outside of the United States or the release or disclosure of information to a foreign national. The largest risk to universities comes from these “deemed exports,” where disclosure can be made orally, in writing, visually, or perhaps through a foreign graduate student having access to a lab from which a controlled technology is being used. A disclosure may also come in the form of collaborative efforts with foreign academics, through a conference lecture or even by storing covered information on unsecured servers.
Violations of EAR or ITAR carry both civil and criminal penalties that include significant monetary fines, restriction of future export privileges, and even imprisonment, and ignorance is no defense. Most institutions have export compliance offices and have trained procurement staff on ITAR and EAR compliance. Once acquired, these items are then tracked and monitored through the export compliance office. However, as described above, faculty members do not just acquire covered equipment through university procurement. Instead, it is either gifted or bought with private funds held by and procured through the university’s foundation.
Consequently, there is a high likelihood that faculty members at your university have already violated ITAR/EAR or will in the future without even knowing it. Steps your institution should consider taking include: having your development officers and foundation staff attend training sessions offered by your university’s export compliance office; developing gift acceptance forms that would ask specific questions related to ITAR and EAR applicability; and periodically sending a copy of your recent gift-in-kind and equipment procurement lists to your university’s export compliance office for review.
Otherwise, that cool breeze whistling past you is from the back door that was left wide open … and you are now left waiting for that inevitable phone call.
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