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EFFECTIVE AUGUST 27, 2010, U.S. EMPLOYEES
ARE ALLOWED TO TAKE LAPTOPS CONTAINING TECHNICAL DATA WHILE TRAVELING OUTSIDE
THE UNITED STATES
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On August 27, 2010, a final rule was published in the Federal Register amending
the technical data licensing exemption in Section 125.4(b)(9) of the
International Traffic in Arms Regulations ("ITAR"). Under this rule, the
Directorate of Defense Trade Controls (DDTC) clarifies that a U.S. employee to a
U.S. corporation or to a U.S. government agency can send or take ITAR-controlled
technical data, regardless of media or format, outside the U.S. without approval
under certain conditions. Previously, the exemption language only contained the
word "sent" instead of "sent or taken" and also did not include the language
"regardless of media or format." As a consequence, the DDTC interpreted the
exemption literally taking the position that the exemption could not be used by
U.S. employees carrying laptops containing ITAR-controlled data. As a result,
U.S. employers established policies requiring laptops be "cleansed" of any
sensitive and/or proprietary data unless approval from the DDTC had been
obtained prior to departure. Now, the DDTC has revised the exemption in
§125.4(b)(9) explicitly allowing a U.S. employee to hand carry technical data
while traveling outside the U.S. (i.e. via laptop) without a license.
To use this licensing
exemption, however, the DDTC imposes certain conditions:
- The U.S. employee sending or taking the
technical data must be an employee of a U.S. corporation or government
agency.
- The technical data must be used solely by a U.S. person.
- The technical data must be sent or taken to a
U.S. person that is either directly employed by that U.S. corporation and not by
a foreign subsidiary, or is employed by a U.S. government agency outside the
United States.
- Classified information must be sent or taken
outside the U.S. in accordance with the requirements of the Department of
Defense National Industrial Security Program Operating Manual
("NISPOM").
Companies should be aware,
however, that the exemption does not apply to prohibited countries (i.e.
China). Further, laptops carried by returning travelers are subject to
examination, detention and seizure by US Customs and Border Protection (CBP)
upon entry into the United States.
Accordingly, companies that
do not otherwise fall within the requirements of the exemption must obtain DDTC
approval. Of course, whether or not the exemption applies, all companies must
ensure ITAR sensitive data is not inadvertently exported, disclosed, sent or
taken to non U.S. persons or prohibited countries without DDTC
approval. Companies can prevent inadvertent disclosure by implementing and
maintaining an ITAR compliance program.
If you should have any questions concerning compliance
with the final rule, implementing a compliance program, or other ITAR
requirements matter, please contact William D. Gilbride, Jr. or Heidi E. Warren
of Abbott Nicholson, P.C. at (313) 566-2500. |
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300 River Place, Suite 3000, Detroit, MI 48207 | Tel: 313.566.2500 | Fax: 313.566.2502
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