Regulatory Basics

Technical Data
Public Domain

 Because the ITAR and EAR were drafted prior to the "Internet," the definition of public domain does not specifically reference information available without restriction to the public through the Internet. However, such information should be regarded as within the public domain. ("Publicly available" is the EAR term.) Remember that the USG has not determined the best way to manage information posted on the web — you and your organization should avoid the use of information located online in your business transactions with foreign nationals.

Depending on the restrictions in the funding agreement, work done (in whole or part under a federal contract, or with USG funds) may not be releasable without prior USG review. DoD's Office of Security Review (OSR) conducts such reviews. Many organizations will have brochures and pictures of their products cleared via the OSR process prior to having them printed for public distribution. This extra clearance through a USG agency ensures that organizations are not accidentally transmitting technical data via a too detailed picture or brochure.

As a general rule, public domain information does not include any technical embellishment, enhancement, explanation, or interpretation, which in itself is not in the public domain.

The ITAR and the definition of "fundamental research" imply strongly that corporate research will not be considered fundamental because such research usually is regarded as proprietary.