Date: Tue, May 12, 2009 at 6:15 PM Subject: Fwd: Criminal Prosecution: Deemed Exports and the University Environment
This is an enlightening article about export control. It is a serious topic and we each have responsibilities.
------ Forwarded Message Client Alert—Criminal Prosecution: Deemed Exports and the University Environment
11-May-2009
by Nancy A. Fischer <http://www.pillsburylaw.com/nancy.fischer> , Michael J. Noonan <http://www.pillsburylaw.com/michael.noonan> <http://www.pillsburylaw.com/content/portal/publications/2009/5/200951116222765/InternationalTrade_Vol1500No1527.pdf> On May 13, 2009, professor emeritus J. Reece Roth of the University of Tennessee is scheduled to be sentenced for violations of the Arms Export Control Act (AECA) , the International Traffic in Arms Regulations (ITAR) , and other violations due to a conviction on all 18 counts of an indictment arising from deemed and actual exports to China. Professor Roth faces a maximum penalty of 180 years in prison and fines of up to $16 million; however, the prosecution has recommended a sentence of 78 to 97 months' imprisonment. Professor Roth was convicted of providing controlled technical data regarding plasma technology for use in drone aircraft to a Chinese national graduate student and traveling to China with a laptop containing controlled technical data. The University escaped indictment in this matter because Professor Roth’s illegal activities were conducted as part of his work with a private company licensed by the University to use University-patented technology, and not directly for the University, and because the University had in place export control policies and procedures. The conviction, however, raises significant questions for university awareness of export controls, the outside activities of university staff, and the 600,000 international students in the United States. Professor Roth hired a Chinese graduate student to assist in plasma testing being performed as part of a Department of Defense contract with Atmospheric Glow Technologies (AGT), a for-profit company licensed by the University of Tennessee to use University-patented technology for development of plasma actuators for use in flight controls for munitions systems. AGT entered into a subcontract with Professor Roth in his individual capacity, not as a University employee, but which contemplated use of the University lab and graduate students to perform testing in support of the overall contract. Technical data related to defense articles and defense services is controlled by the AECA and the ITAR, and prior to the export of that technical data the holder is required to obtain a license from the State Department. Included in the definition of "export" is the provision of controlled technology to a foreign national in the United States, which is commonly referred to as a "deemed export." By sharing the technology with the Chinese graduate student, Professor Roth was deemed to have exported controlled technology to the student’s home country, China, which violated the AECA. The government’s aggressive prosecution of Roth was an apparent attempt to demonstrate to the university community that it considers ITAR violations of this type to be extremely serious. In this case, the University was not indicted along with Professor Roth due at least in part to the fact that the University had in place its own policies and procedures to address export controls in the university environment.
