What is a deemed export?

While an export is generally considered to be materials, information and technology that leave the country, something can be a deemed export without leaving the country. If regulated information or technology is released to a foreign national living in the U.S., it is deemed to be an export to the home country or countries of the foreign national.

This concept holds true for industrial espionage situations as well as national security concerns. The Export Administration Regulations (EAR) state that,

An export of technology or source code (except encryption source code) is ‘deemed’ to take place when it is released to a foreign national within the United States. Technology is ‘released’ for export when:

  • it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.);
  • when technology is exchanged orally; or
  • when technology is made available by practice or application under the guidance of persons with knowledge of the technology.
    •     See §734.2(b)(2) of EAR.

While International Traffic in Arms Regulations (ITAR) do not incorporate the term “deemed export” the concept is in the definition of an export and pertains to the release of ITAR technical data and defense services.

Preventing a deemed export is the primary compliance issue facing university research. Therefore, it is vitally important that we assess a research project/proposal for export issues when:

  • A foreign national will be assisting/collaborating;
  • Third party proprietary data will be shared; or
  • A software license agreement contains language indicating that the software is controlled to certain countries. 

As with other exports, publicly available technology is not subject to the deemed export rule. Nor does it apply to fundamental research appropriately structured to protect export controlled information / technology from foreign nationals involved with the project.

Learn more about Export Administration Regulations (EAR)
Learn more about International Traffic in Arms Regulations (ITAR)