Homeland Security Investigations (HSI) Project Shield America (PSA)
Homeland Security Investigations (HSI) Project Shield America (PSA) Academia Homeland Security Investigations (HSI) Objectives Provide information on the following: HSI / Counter-Proliferation Investigations (CPI) Project Shield America (PSA) Export Control Laws, Sanctions and Authorities Definitions and Exemptions for Academia Export Controls: The Basics Compliance Challenges in Academia Pitfalls, Red Flags and Due Diligence Recommendations Consequences of Non-Compliance
Homeland Security Investigations (HSI) Homeland Security Investigations HSI is the investigative arm of Immigration and Customs Enforcement HSI is responsible for investigating the illegal movement of people, goods and finances into, within and out of the United States HSI is the largest investigative arm in DHS and second largest federal investigative agency in the U.S. Homeland Security Investigations (HSI) DHS Organizational Chart Transportation Security Administration U.S. Department of Homeland Security
Customs and Border Protection ICE / Homeland Security Investigations U.S. Coast Guard U.S. Citizenship and Immigration Services U.S. Secret Service Federal Emergency Management Agency Homeland Security Investigations (HSI) Homeland Security Investigations (HSI) Counter-Proliferation Investigations (CPI) Within HSI is the Counter-Proliferation Investigations (CPI) Program
CPI conducts criminal enforcement of ALL U.S. Export Control Laws According to a Department of Justice analysis, HSI was involved in over 73% of the major export enforcement and embargo related prosecutions between 2007 and 2012 Homeland Security Investigations (HSI) Counter-Proliferation Investigations (CPI) CPI works with all of its federal partners in the enforcement of U.S. Export Control Laws HSIs statutory customs border search authority allows for the search, detention and seizure of illegal exports HSI has the authority to investigate criminal violations of the ITAR (22 CFR 127.4) Homeland Security Investigations (HSI)
Export Enforcement Coordination Center (E2C2) Housed at HSI Headquarters with representation from each agency involved in the enforcement of export control laws Serves as the primary forum for enforcement and intelligence agencies to de-conflict and coordinate export enforcement actions Primary point of contact between enforcement and licensing agencies Coordinates public outreach to trade community Homeland Security Investigations (HSI) Project Shield America Outreach Program to Academia to: Seek greater compliance and awareness of export control laws Prevent the inadvertent violation of export control laws in academia Seek cooperation from academic institutions in protecting
controlled technology from illegal export and reverse engineering Establish more formal and informal dialogue through stronger government/academic partnerships Enhance U.S. National Security Homeland Security Investigations (HSI) U.S. Export Control Laws Arms Export Control Act (AECA) Title 22 U.S.C. 2778 Title 22 C.F.R. 120-130 Military Items, Services and Brokering Export Administration Regulations (EAR) Title 15 C.F.R. 730-774 Dual Use Technology
(Commercial & Military) Homeland Security Investigations (HSI) U.S. Export Control Laws Trading With the Enemy Act International Emergency (TWEA) Economic Powers Act (IEEPA) Title 50 U.S.C App 1- 44 Title 50 U.S.C. 1701 FACR 31 C.F.R. 500-599 Economic and Trade Sanctions Goods and Services Outbound Smuggling Title 18 U.S.C. 554 Any merchandise
Homeland Security Investigations (HSI) Primary Export Licensing Agencies U.S. Dept. of State U.S. Dept. of Commerce U.S. Dept. of Treasury Directorate of Defense Trade Controls (DDTC) Bureau of Industry and Security (BIS) Office of Foreign Assets Control
(OFAC) Regulates Export & Licensing of Single-Use Defense Articles Regulates Export & Licensing of Dual-Use Commodities Regulates Licensing of Transactions involving sanctions & embargos Comprehensive & Selective Regulations may apply to:
(Commercial & Military Applications) (military and space applications) Controlled Items List: - U.S. Munitions List (USML) Regulations Defined By: ITAR Violations Enforced Under: AECA Controlled Items List:
- Commerce Control List (CCL) Regulations Defined By: EAR Violations Enforced Under: EAA/IEEPA Countries Companies
Individuals Regulations Defined By: Sanctions/Embargos Violations Enforced Under: IEEPA Homeland Security Investigations (HSI) Definitions International Traffic in Arms Regulations (ITAR) - U.S. State Department regulations that govern the AECA (Title 22 USC 2778) and control the export of defense-related articles and services located on the U.S. Munitions List (USML).
ITAR regulations require registration with Directorate of Defense Trade Controls (DDTC) to export or broker items located on the USML. Criminal violations enforced by HSI while civil and administrative violations are enforced by State Department DDTC. Homeland Security Investigations (HSI) Definitions Technical Data - Required for the development of defense articles, including information in the form of blueprints, drawings, photographs, plans, instructions, and documentation. Also includes classified information relating to defense articles and defense services, information covered by an invention secrecy order and certain software directly related to defense articles. [ITAR 120.10] Homeland Security Investigations (HSI)
Deemed Export Definitions Used to describe the transfer of technology or technical data to foreign persons usually while inside of the U.S. Concept applies to both the EAR and the ITAR Deemed export can include controlled tangible items, software/software code or information Unless an exception or exemption applies, an export license is required when the following conditions are met: Intent to transfer controlled information to foreign nationals while in the United States; and Transfer of the same technology to the foreign national's home country would require an export license Homeland Security Investigations (HSI) Deemed Export
Definitions EAR - The release of technology or source code to a foreign national while on U.S. soil. An export is deemed to have taken place when controlled technology is transferred through visual inspection, oral exchange, or by practice or application. [15 CFR 734.2(b)(2)(ii)] ITAR Disclosing or transferring (including oral or visual disclosure) technical data to a foreign person or performing a defense service on behalf of or for the benefit of a foreign person whether in the United States or abroad. [22 CFR 120.17] Homeland Security Investigations (HSI) Definitions Foreign Person: any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). It
also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions). [ITAR 120.16] Homeland Security Investigations (HSI) Definitions Defense Article: Any item or technical data on the USML. [ITAR 120.6] Defense Service: The furnishing of assistance, including training, to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, etc. of defense articles. Also, the furnishing to foreign persons of any controlled technical data. [ITAR 120.9]
Homeland Security Investigations (HSI) Form I-129: Definitions U.S. Citizenship and Immigration Services (USCIS) petition form for non-immigrant workers Part six of this form is known as the Deemed Export Acknowledgment section and is a certification warning against the release of controlled technology to foreign persons in the U.S. Only applied to certain petitions (H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitions) Implemented to address illegal technology transfers and the threats of WMD proliferation, illicit weapon production, and industrial espionage Homeland Security Investigations (HSI)
Academic Exemptions Fundamental Research Exclusion: Basic and Applied Research in science and engineering at accredited institutions of higher learning where the resulting information is ordinarily published and shared broadly in the scientific community, as distinguished from research results which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls [ITAR 120.11(8)]. Homeland Security Investigations (HSI) Academic Exemptions Public Domain Exclusion: ITAR Provisions Includes information published in magazines, journals, etc. OR not published, but released with unlimited distribution after approval by the cognizant US Government,
Department, or Agency [ITAR 120.11(7)] Homeland Security Investigations (HSI) Academic Exemptions Public Domain Exclusion: EAR Provisions Published information in print, film, recordings, etc. Certain publicly available technology and software Patents and published patent applications Fundamental research See the EAR sections [ 734.3(b)3, 734.7 and 734.10] Homeland Security Investigations (HSI) Academic Exemptions Educational Instruction Exclusion: Information released in catalog listed courses
Faculty may discuss certain technologies in labs or classrooms even in the presence of foreign nationals Information must be general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, and information in accordance with the public domain exclusion Homeland Security Investigations (HSI) Academic Exemptions Bona Fide Full-time Employees Exemption: Applies to unclassified technical data in the U.S. by U.S. universities to foreign nationals where: Foreign national is university's bona fide full-time employee, and Foreign employee permanently resides in U.S. during employment, and
Foreign employee is not a national of an embargoed country, and University informs the employee in writing that information disclosed may not be disclosed to other foreign nationals without governmental approval [ITAR 125.4(b)(10)] Homeland Security Investigations (HSI) Academic Exemptions Fundamental Research Exclusion does NOT apply to: 1. 2. 3. 4. Most physical goods Software Encryption Certain non-publishable
research 5. Research conducted outside of the U.S. 6. Research with publication restrictions on results (Exemptions under 15 CFR 734.11) 7. Federally funded research with certain access and dissemination controls on project results (Also, see 15 CFR 734.11) In addition to determining the applicable exclusion, always check updated list of ITAR prohibited countries, embargoed countries, sanctioned countries, denied persons, specifically designated nationals, etc. Homeland Security Investigations (HSI) Fundamental Research - National Policy National Security Decision Directive (NSDD) 189
Issued by the President and formally defined fundamental research. Set the national policy expectation that the flow of ideas and information resulting from fundamental research should not be restricted NSDD 189 supports the principal of limiting the restrictions to federally funded fundamental research Homeland Security Investigations (HSI) Software / Encryption Depending upon the application and level of encryption, encrypted software may be controlled under either the EAR and ITAR Under the EAR, encryption may include software, hardware or other technology that incorporate encryption Many dual use encryption items fall under Category 5 of the EAR or are classified as EAR99
Homeland Security Investigations (HSI) Export Controls: The Basics Export controls may apply in the university setting regardless of whether or not the university project is funded by a grant (public or private) or some other contractual agreement Export controls may also apply to a project even if the sponsors award documentation does not specifically mention export controls Homeland Security Investigations (HSI) Export Controls: The Basics Export Controls may apply to the following activities: 1. Shipment of items to locations outside of the U.S. 2. Travel to certain sanctioned or embargoed countries for research or teaching 3. Transfer of export controlled technical data to persons
located outside of the U.S. 4. Sharing of export controlled scientific or technical information with foreign nationals within the U.S. Homeland Security Investigations (HSI) Export Controls: The Basics How Does Something Become Export Controlled? Controlled Technology Controlled items, services and technologies that are subject to regulations and found on a control list (CCL or USML)
Destination End Use End User Is destined for an embargoed location especially Cuba, Iran, N. Korea, Sudan and Syria The end use includes weapons proliferation or involves knowledge of a
violation The end user is a Specially Designated National or foreign military force Homeland Security Investigations (HSI) Export Controls: The Basics When Technology is Moved to Export Controlled Status Research prior to export control restrictions All technical data is determined to be
in the Public Domain and has no dissemination restrictions ----------EXPORT CONTROLS---------Research after export control restrictions All new technical data generated by research done under this contract is now export controlled Homeland Security Investigations (HSI) Compliance Challenges in Academia 1. Multiple regulatory authorities
Immigration laws (DHS) Evolving sanctions (Treasury) Licensing agencies (DOS, DOC, Treasury and others) Evolving definitions in export control 2. Informal/unauthorized research partnerships 3. Information exchanges email, FTP, cloud computing, international conferences, lab tours, foreign academic partnerships and exchanges 4. Foreign students, scientists and scholars 5. De-centralized structure of universities Homeland Security Investigations (HSI) Can Students Use Dual Use Equipment Is the information needed to operate
the item publicly available? Y Outside the scope of regulation N Is it merely being operated? Y Not going to
meet the definition of use technology N Do you have operation, installation, maintenance, repair, overhaul AND refurbishing? The technology is possibly EAR99
N Y ECCN? Y Evaluate for license requirements N Homeland Security Investigations (HSI) Potential Pitfalls
Foreign students (visa issues, deemed exports, etc.) Student assignment w/out review or little oversight No physical access controls of research facilities Foreign travel / delegations / transporting digital media Foreign university partnerships Lack of export control training Faculty working on outside contracts (private agreements) Data exchanges Project staffing changes Homeland Security Investigations (HSI)
Red Flag Indicators Multiple requests for identical product or research Uneducated, unfamiliar and/or uninformed end user Vague or non-existent end-user information Refusal to provide end-user certificate Suspect end-user located in a transshipment location Hand-carry of data or equipment Request for replacement parts to wrong customer location Troubleshooting inquiries by e-mail from different enduser or in the wrong language
Homeland Security Investigations (HSI) Targeted Technologies Information Systems Lasers, Optics, and Sensors Aeronautics Systems Electronics Marine Systems Positioning, Navigation, and Time Technology Information Security
Armaments and Energetic Materials Space Systems Materials and Processes 2011 Defense Security Service Report: Targeting U.S. Technologies: A Trend Analysis of Reporting from Defense Industry Homeland Security Investigations (HSI) Methods Used to Target Technology Unsolicited emails Front companies Liaisons with universities that have ties to defense contractors Recruitment by foreign intelligence services National laboratories
Compromise of laptop while traveling overseas Attending/Hosting conferences Relocating R&D facilities overseas Circumventing export control laws Visiting scientific and research delegations Hacking Downloading information from your network Source: Department of Commerce, Bureau of Industry and Security
Homeland Security Investigations (HSI) Avoiding Mistakes / Due Diligence Know what controls apply to your research, and if an exemption applies If your research is controlled, know who has access and if the facility is capable of isolating this controlled technology See that transactions/orders for production parts or technology are handled by export specialists Ensure that your export compliance specialists are knowledgeable about your research/product and current export controls and licensing procedures Screen for debarred parties, denied persons, designated nationals Homeland Security Investigations (HSI) Recommendations Create a university export control matrix or decision tree Create protocols for international mailing
Maintain a list of sanctioned, proliferating and transshipment countries Work closely with the university designated school official (DSO) Create a policy on foreign travel and transport of digital media Homeland Security Investigations (HSI) Recommendations Establish a collection of clean computers, USB flash drives, phones, and other digital media for the purpose of foreign travel Incorporate an export control training course Conduct annual review of university international shipments based on your university's freight forwarding account Avoid desktop sharing software Avoid cracked or pirated software
When in doubt, seek legal advice Homeland Security Investigations (HSI) Consequences of Non-Compliance Criminal and civil penalties potentially resulting in: Millions of dollars in fines Jail sentences Damage to national security Loss of federal funding Loss of exporting privileges Loss of technological advantage through IP theft Damage to individual and institutional reputation Homeland Security Investigations (HSI) Relevant Points of Contact 1. 2. 3.
4. 5. Issue ITAR military application EAR dual use commodity Embargos / Sanctions Student visas All potential export control violations 1. 2. 3.
4. 5. Agency Department of State - DDTC Department of Commerce - BIS Department of Treasury - OFAC Citizenship and Immigration Services (CIS) and HSI HSI 1.
2. 3. 4. 5. Contact (202) 663-1282 www.pmddtc.state.gov (202) 482-4811 www.bis.doc.gov 1-800-540-6322 www.treasury.gov/ofac 1-800-375-5283 www.uscis.gov 1-866-347-2423 www.ice.gov Homeland Security Investigations (HSI) How to Respond to a Suspicious Contact Dont slam the door Save all correspondence and make note of phone calls
Obtain contact numbers and e- mail with full headers Keep it neutral Contact HSI Special Agents for a controlled and monitored response Homeland Security Investigations (HSI) References University of Oklahoma, Office of Export Controls http://www.ou.edu/exportcontrols.html University of Virginia, Office of Sponsored Programs http://www.virginia.edu/sponsoredprograms/exportcontrols.html University of California San Diego, Office of Contract and Grant Administration http://ocga.ucsd.edu/Research/Export_Control/Overview.htm
Stanford University, Office of the Vice Provost and Dean of Research http://export.stanford.edu/ MIT, Office of Sponsored Programs http://osp.mit.edu/compliance/export-controls University of Missouri, Research Compliance http://research.missouri.edu/complia/export_exemption.htm Carnegie Mellon, Office of Sponsored Programs http://www.cmu.edu/osp/regulatory-compliance/export-compliance.html University of Maryland, Office of Research Administration http://www.umresearch.umd.edu/ORAA/export_control_guidance/ University of Central Florida, Office of Export Controls http://www.research.ucf.edu/ExportControl/ofac.html
Questions? Protecting the Borders Against Illicit Trade, Travel, and Finance Homeland Security Investigations (HSI) Daniel J. Sheill Special Agent Homeland Security Investigations (HSI) Detroit, MI 313.226.0513 [email protected]
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