As you may know, the United States’ export control regime controls items, services, and information through regulations enforced by the State, Commerce, and Treasury Departments. Since all three departments promulgate their own set of definitions and rules, trying to determine which set of regulations and definitions to apply to your particular export can get confusing – especially when similar words are used by different departments to describe similar (but legally distinct) classes of exports.
Today I want to shed some light on a distinction that confuses many of my clients, at least initially: the difference between “Technical Data” and “Technology.”
Since the government has not quite caught up with the rapid evolution of cloud technology and information security products, properly classifying information for export can get complicated. What you need to know is that the information the government regulates is called controlled information. Controlled information is referred to as “Technical Data” (capital T, capital D) under State Department regulations (International Traffic in Arms Regulations) and “Technology” (Capital T) under Commerce Department regulations (Export Administration Regulations).
If you have an item controlled by the State Department, look at the Technical Data definition. It is defined as information used in the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of Defense Articles, classified information and software relating to Defense Articles, or information covered by a specific invention secrecy order issued by the government. Information is not considered Technical Data if it is in the public domain, consists of general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or basic marketing information describing the general function or purpose of Defense Articles.
If you have an item controlled by the Commerce Department, look at the Technology definition. It is defined as specific information necessary for the development, production, or use of an item. Development is related to all stages prior to serial production while production includes all stages ranging from manufacture to quality assurance. In order to be controlled because it is necessary for the use of an item, information must satisfy a narrower standard. The information must be used to operate, install, maintain, repair, overhaul, and refurbish the item. Information is not considered Technology if it is (or will be) published, a result of fundamental research, educational, included in certain patent applications, or under the exclusive jurisdiction of another U.S. government agency,
As with any system, to get an accurate result you have to make sure to employ the proper standard for the particular analysis you are doing. Remember: in order to determine if the State Department controls information see if it falls under the Technological Data definition, and in order to determine if the Commerce Department controls the information see if it falls under the Technology definition.
Have a great day,