The export control regulations include categories of information that are considered "publicly available" (under the EAR)/"public domain" (under the ITAR) (available to the public without any restrictions). Each set of regulations has its own definition (see below).
Is publicly available/public domain information subject to the export control regulations?
No, publicly available information is not subject to the export control regulations (e.g. ITAR, EAR).
Is it okay to send publicly available/public domain information to any location?
No, it may be prohibited to send publicly available information to an embargoed/sanctioned country without a license.
International Traffic in Arms Regulations (ITAR)
Not Subject to the ITAR, Public Domain (22 CFR § 120.11)
(a) Public domain means information which is published and which is generally accessible or available to the public:
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also §125.4(b)(13) of this subchapter);
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.
Export Administration Regulations (EAR)
Not Subject to the EAR (15 CFR § 734.3(b)(3))
Information and “software” that:
- Are published* as described in (15 CFR § 734.7), see below
- Arise during, or result from, fundamental research, as described in § 734.8
- Are released by instruction in a catalog course or associated teaching laboratory of an academic institution
- Appear in patents or open (published) patent applications available from any patent office, unless covered by an invention secrecy order, or are otherwise patent information at described in § 734.10
- Are non-proprietary system descriptions
- Are telemetry data as defined in Note 2 to Category 9, Product Group E.
Excludes certain encryption software – see ECCN 5D002
*Published 15 CFR § 734.7
(a) Unclassified technology and software is published - and therefore not technology or software subject to the EAR - when it has been made available to the public without restrictions upon its further dissemination such as through any of the following:
(1) Subscriptions available without restriction to any individual who desires to obtain or purchase the published information;
(2) Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents;
(3) Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public;
(4) Public dissemination (i.e., unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public; or
(5) Submission of a written composition, manuscript, presentation, computer-readable data set,formula, imagery, algorithms, or some other representation of knowledge with the intention that such information will be made publicly available if accepted for publication or presentation:
(i) To domestic or foreign co-authors, editors, or reviewers of journals, magazines, newspapers or trade publications;
(ii) To researchers conducting fundamental research; or
(iii) To organizers of open conferences or other open gatherings.
(b) Published encryption software classified under ECCN 5D002 remains subject to the EAR unless it is publicly available encryption object code software classified under ECCN 5D002 and the corresponding source code meets the criteria specified in § 740.13(e) of the EAR.
AFAEA: (10 CFR Part 810.2(c)(2))
Publicly available information, publicly available technology, and the results of fundamental research.
Definitions (10 CFR Part 810.3)
- Publicly available information means information in any form that is generally accessible, without restriction, to the public.
- Publicly available technology means technology that is already published or has been prepared for publication; arises during, or results from, fundamental research; or is included in an application filed with the U.S. Patent Office and eligible for foreign filing under 35 U.S.C. 184.
- Fundamental research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.