Publication Exclusion under the Export Administration Regulations

Jul 21, 2025

Erik Chmelar, JD, PhD, MBA, PE
Young Basile Hanlon & MacFarlane

Many researchers engage in global collaboration. However, sharing certain technical data with colleagues who are not U.S. citizens or permanent residents may constitute a violation of U.S. export control laws, exposing both the individual and the employer to potential civil or criminal liability. Global collaboration is especially important in advanced fields such as semiconductors, quantum computing, and artificial intelligence.

U.S. export regulations are broad in scope. For example, 15 C.F.R. § 734.3 identifies items subject to the Export Administration Regulations (EAR) with phrases such as “All items in the United States” and “All U.S. origin items wherever located,” where “items” encompasses not only expected things like physical commodities and software, but also less intuitive items such as “technology”—a category that includes information, data, and even technical assistance. Although exclusions and exemptions are available, researchers should understand the extent and limits of each before relying on them.

This article provides an overview of the fundamental research exclusion under the EAR and discusses corresponding provisions under the other major U.S. export control framework—the International Traffic in Arms Regulations (ITAR). Future articles will address additional topics, such as the general license for deemed exports of quantum computing technologies authorized by the September 6, 2024 Interim Final Rule (IFR).

Export Administration Regulations

The EAR governs the export, reexport, and deemed export of dual-use items, i.e., goods, software, and technology that have both commercial and potential military or proliferation applications. However, technology or software that arises during, or results from, fundamental research and is intended to be published is not subject to the EAR. See 15 C.F.R. § 734.8(a).

Fundamental research is defined as research in science, engineering, or mathematics, the results of which are ordinarily published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons. See § 734.8(c).

The decision to freely publish or disclose research results is paramount to this exemption from the EAR. So long as there are no restrictions on dissemination—whether from funding sources, collaborators, or institutional agreements—the technology or software that arises during, or results from, the fundamental research are excluded from EAR jurisdiction, even if the subject matter would otherwise be controlled (e.g., would otherwise require an export license).

The EAR clarifies that prepublication review (e.g., for patent filing, or to protect a sponsor’s proprietary inputs) does not, on its own, disqualify the research from fundamental research status—provided such review does not restrict the publication of the researchers’ own results. See § 734.8(b).

Additionally, technology or software is considered “published,” and therefore not subject to the EAR, when it has been made available to the public without restrictions on further dissemination, such as by:

  • Open-access journal publications or library collections;
  • Public conferences or seminars;
  • Internet posting on publicly available websites; or
  • Submissions for publication or presentation with the intent to make the material public.

See § 734.7(a).

(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 § 742.15(b) of the EAR.)

However, once a decision is made to restrict or protect the release or publication of results (e.g., by keeping data proprietary or accepting nondisclosure restrictions), the information becomes subject to the EAR if it falls within the scope of § 734.3(a) (e.g., all U.S. items wherever located). See § 734.8 Note 2 to paragraph (a).

Finally, disclosure of EAR-excluded fundamental research remains excluded even if the recipients include foreign nationals or individuals from sanctioned jurisdictions, unless the dissemination is restricted or the research was never intended to be made public. There is no requirement to screen recipients of fundamental research publications against restricted party lists like the Entity List or Unverified List, so long as the dissemination is truly public and unrestricted.

International Traffic in Arms Regulations (ITAR)

Unlike the EAR, the ITAR does not include a broad “fundamental research” exclusion. “Technical data” subject to ITAR includes not only detailed engineering designs and blueprints for defense articles, but also information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of items on the U.S. Munitions List (USML). See 22 C.F.R. § 120.10.

ITAR controls apply regardless of location—including to “deemed exports” (i.e., disclosures to foreign persons physically located in the U.S.). A “foreign person” means any person who is not a U.S. citizen, U.S. lawful permanent resident, or protected individual (e.g., refugees and asylees). See § 120.63. Disclosures to such persons, whether verbally, visually, or electronically, are treated the same as physical exports and typically require prior authorization from the State Department’s Directorate of Defense Trade Controls (DDTC).

Public domain exclusions under ITAR are significantly narrower than under the EAR. Technical data is not subject to ITAR if it is in the public domain, meaning it has been:

  • Released through approved channels such as libraries, open conferences, public exhibitions, or sales at newsstands or bookstores;
  • Made available through unrestricted subscriptions or publicly accessible websites; or
  • Approved for release by the Directorate of Defense Trade Controls (DDTC) under an authorized
    exemption or license.

See § 120.34.

Importantly, intent to publish alone is not sufficient to exempt ITAR-controlled technical data. Until the information is actually published and meets the criteria of public domain under § 120.34, it remains subject to ITAR, and disclosure to any foreign person—even within the U.S.—requires a license.

Additionally, prepublication release of ITAR-controlled technical data to foreign co-authors, collaborators, reviewers, or conference organizers may constitute an unauthorized export. Unlike the EAR’s treatment of fundamental research, ITAR does not recognize a fundamental research exclusion in the same manner.

Even if materials are posted on the internet, they do not become ITAR-exempt unless the posting itself was authorized by DDTC or otherwise qualifies under § 120.34. Unauthorized online publication of ITAR-controlled data may constitute an illegal export to all foreign persons worldwide who can access it.

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