The Georgia Institute of Technology, in cooperation with the Association of University Export Control Officers, hosted the second annual Impact of Export Controls on Higher Education and Scientific Institutions Conference May 5-7 at the Georgia Tech Hotel & Conference Center in Atlanta, GA. The conference brought together over 250 university, government and industry representatives to discuss emerging topics in export controls.
Building upon last year’s program, the conference kicked off with a day-long, “Export Control 101” workshop. Designed for those new to export controls or simply seeking a refresher, the workshop covered the basics of the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), sanctions issued by the Office of Foreign Assets Control (“OFAC”) and Department of Energy regulations. The program went on to cover how to assess whether a particular effort is controlled, and what steps to take once a project is identified as subject to one or more of the regulations.
The next two days featured panel discussions on a variety of topics. Of particular interest and relevance to the Harvard community were those sessions focusing on emerging technologies and the differences in the regulatory challenges posed by each. As discussed below, massively open online courses, or MOOCs, have triggered concerns based on their availability to students across the globe, including those in sanctioned countries. Cloud computing on the other hand, which is discussed in Part 2, has both raised data security concerns and challenged the existing definition of an “export”.
Globalizing classroom instruction, MOOCs have caught fire in the past couple of years, bringing classes from top universities into the homes of anyone with Internet access. While MOOCs inarguably open educational opportunities to those who might not otherwise have access, the fact that anyone, anywhere, can enroll in these courses has raised export control concerns. The issues posed by MOOCs are of particular interest to Harvard as the University continues to expand its online offerings through HarvardX and HBX.
- OFAC. OFAC, a division of the Department of the Treasury, administers and enforces trade and economic sanctions based on U.S. foreign policy goals and national security objections. Depending on the level of the sanction, certain transactions with persons in sanctioned countries require a license from OFAC. The transmission of personal correspondence and informational materials is generally exempted from such requirements. MOOC providers originally operated under the assumption that online courses qualify under the informational materials exemption, maintaining that instructor involvement was incidental to the transmittal. OFAC, however, has taken the position that MOOCs are a service, and as such, may not enroll students in sanctioned countries without first obtaining a license. Thus far, OFAC has worked with MOOC providers, such as EdX (a consortium founded by Harvard and MIT), to permit the majority of course offerings under either an existing general license or a license specific to the program. However, even where a license has been obtained, restrictions remain on the provision of advanced STEM courses and certain additional services. As universities and third-party course providers continue to expand their MOOC offerings, better understanding and streamlining the licensing process will be crucial to ensure education opportunities are not disrupted.
- EAR. The EAR, which regulate the export of “dual use” (military and commercial) items, do not commonly present issues for MOOCs. As on-campus coursework is generally exempt from licensing, there is a strong argument that the typical MOOC course likewise qualifies for the exemption. However, MOOCs that provide instruction beyond the realm of “educational information released by instruction in catalog courses and associated teaching laboratories” could be subject to the regulations.
- ITAR. The ITAR, which control the export of defense-related items, also offer an exemption for commonly taught STEM courses that arguably extends to MOOCs. Worth noting, however, is that, since coursework provides an added layer of instruction, a course may potentially qualify as a “defense service”, which includes training in the design, assembly and/or operation of controlled articles, as well as the provision of technical data related to such articles, even though the information being relayed is in the public domain. It is also unclear whether the “fundamental research” exemption, which applies to accredited institutions within the United States, would extend to research done by international participants as part of a university course conducted through a MOOC provider.
If you have questions related to these or other topics discussed at the conference, please contact Megan Moore (email@example.com) in the Office for Sponsored Programs. If you have export control questions related to specific Harvard activities, please contact the Office of the Vice Provost for Research (firstname.lastname@example.org) or your school export liaison.