Publicly Available Information
Overview
U.S. export control regulations generally exclude certain information that has been published or otherwise made available to the public.
The terminology and requirements differ among the applicable regulations. For example:
- The Export Administration Regulations (EAR) address published technology and software.
- The International Traffic in Arms Regulations (ITAR) address information in the public domain.
- Certain nuclear export control regulations address publicly available information and technology.
Whether information qualifies for one of these exclusions depends on the applicable regulations and the circumstances under which the information has been made available.
Important: Public availability for export control purposes does not eliminate other legal, contractual, sponsor, intellectual property, confidentiality, sanctions, or institutional requirements that may apply to a research activity.
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Common Examples
Depending on the applicable regulations, information that may qualify as published, public domain, or otherwise publicly available can include information made available through:
- Books and textbooks.
- Published journal articles.
- Public libraries or other public collections.
- Open conferences, meetings, or seminars.
- Unrestricted public websites.
- Issued patents and certain published patent applications.
- Other forms of public dissemination without restrictions on further distribution.
- Qualifying fundamental research.
Whether a particular category qualifies depends on the applicable export control regulations and the circumstances of the activity.
Common Considerations
Under the EAR, unclassified technology or software that is published as described in 15 CFR § 734.7 generally is not subject to the EAR.
Published technology or software may include information made available to the public without restrictions on further dissemination through:
- Subscriptions available without restriction.
- Libraries or other public collections open to the public.
- Unlimited distribution at conferences, meetings, seminars, trade shows, or exhibitions generally accessible to the interested public.
- Public dissemination, including posting on Internet sites available to the public.
- Certain submissions intended for publication or presentation.
The EAR separately address technology or software arising during or resulting from qualifying fundamental research.
Important: Specialized requirements apply to certain encryption software and other specifically regulated technology or software. Contact ORS before publicly releasing controlled software or technology if you are uncertain whether an exclusion applies.
The ITAR use the term public domain for certain information that has been published and is generally accessible or available to the public.
Whether information qualifies as public domain depends on the requirements of the ITAR and how the information was made publicly available.
Information that remains subject to access, dissemination, proprietary, or other restrictions may not qualify for public domain treatment.
Contact ORS before releasing technical information if you are uncertain whether it is subject to the ITAR.
DOE nuclear export control regulations recognize exclusions involving certain publicly available information and technology.
Researchers working with nuclear technology, technical assistance, or activities potentially subject to 10 CFR Part 810 should contact ORS if they are uncertain whether a public availability exclusion applies.
Fundamental research is a related but distinct export control concept.
Under the EAR, technology or software arising during or resulting from qualifying fundamental research and intended to be published generally is not subject to the EAR.
Fundamental research protections do not automatically apply to equipment, materials, software, technology, technical data, or proprietary information received or used in conducting the research.
Information that is published, public domain, or otherwise publicly available for export control purposes may still be subject to other requirements.
Additional review may be appropriate for activities involving:
- Sanctioned or embargoed countries.
- Restricted organizations or individuals.
- Sponsor or contractual requirements.
- Proprietary or confidential information.
- Controlled Unclassified Information (CUI).
- Classified Information.
- Intellectual property restrictions.
- Other limitations on access, use, or dissemination.
ORS can assist in determining which requirements apply.
Frequently Asked Questions
Is every published journal article publicly available for export control purposes?
Generally, published journal articles that are publicly available without restrictions on further dissemination will fall within applicable public availability provisions. The specific regulatory requirements should be considered when controlled technology or technical information may be involved.
Can information presented at a conference qualify as publicly available?
Yes, under certain circumstances. For example, the EAR recognize unlimited distribution at conferences, meetings, seminars, trade shows, or exhibitions generally accessible to the interested public as a method of publication.
Closed, restricted, invitation-only, or controlled sessions may require additional review depending on the information being presented.
Does posting information on the Internet automatically make it publicly available?
Not necessarily. Whether the information qualifies depends on the applicable regulations, the information involved, how it is made available, and whether restrictions on access or further dissemination apply.
Special requirements may also apply to certain software, including encryption software.
Does publicly available information mean I can send it anywhere?
Not necessarily. Even when the information itself is not subject to export control requirements, sanctions, restricted-party requirements, contractual obligations, sponsor requirements, or other federal requirements may still affect the proposed activity.
Is fundamental research the same as publicly available information?
No. They are related concepts but have different regulatory requirements. Under the EAR, published technology and software are addressed in § 734.7, while technology or software arising during or resulting from fundamental research is addressed separately in § 734.8.
Related Guidance
| Reference Guide | Description |
|---|---|
| Fundamental Research | Learn when research qualifies for the Fundamental Research Exclusion and how sponsor restrictions may affect its applicability. |
| Export Administration Regulations (EAR) | Learn about export controls governing commercial and dual-use items, software, and technology. |
| International Traffic in Arms Regulations (ITAR) | Learn about export controls governing defense articles, defense services, and technical data. |
| Government Information | Learn about the types of government information and associated requirements |
| Export Control Classification | Learn how equipment, materials, software, technology, and technical information are classified under U.S. export control regulations. |
Federal Regulatory References
| Federal Regulatory Reference | Description |
|---|---|
| Export Administration Regulations (15 CFR §§ 734.3 and 734.7) | Addresses published technology and software that are generally not subject to the EAR and identifies methods through which technology or software may be considered published. |
| Export Administration Regulations — 15 CFR § 734.8 | Addresses technology or software arising during or resulting from qualifying fundamental research. |
| International Traffic in Arms Regulations (22 CFR § 120.34) | Addresses public domain information under the ITAR. |
| Assistance to Foreign Atomic Energy Activities (10 CFR Part 810) | Addresses publicly available information, publicly available technology, and fundamental research under DOE nuclear export control requirements. |
Need Assistance?
If you are uncertain whether information qualifies as published, public domain, or otherwise publicly available under applicable export control regulations, or whether sponsor, contractual, sanctions, or other requirements apply before sharing research information, contact the Office of Research Security.