Industry News

BIS Issues Advisory Opinion on Exporting Publicly Available Encrypted Software to Terrorists Supporting Countries

September 24, 2009


The Information Technology Controls Division of the Bureau of Industry and Security (BIS) recently issued an advisory opinion concerning the export of mass-market encryption software to individuals in terrorist supporting   countries.  The opinion issued on September 11, 2009 and posted on BIS’ website states that a company’s publishing of “mass-market” encryption software to the Internet where it could be downloaded, free of charge, by anyone would “neither establish ‘knowledge’ of a prohibited export or reexport nor triggers any ‘red flags’ necessitating the affirmative duty to inquire under the ‘Know Your Customer’ guidance” provided in Supplement 3 to Part 732 of the Export Administration Regulations (EAR).  More specifically, BIS states in the opinion that a person or company who posts “mass market” encryption software on the Internet for free and anonymous download will not be found in violation of the EAR if such software is subsequently downloaded, at a later time, by an anonymous person in Iran, Cuba, Syria, Sudan or North Korea.  Further, no violation would occur if the IP address of the person downloading the software is collected at the time of download and stored as a footprint in the software provider’s data base, provided the footprint it nor tracked or used by the software provider for any purpose. 

This exception, however, is inapplicable where a company or person posts such software and requires registration (i.e., provision of a name and email address) before downloading may occur.  BIS states that, in this case, the download of the software would no longer be anonymous and allowing the download by a person in Iran, Cuba, Syria, Sudan or North Korea without the necessary licenses would constitute a violation of the EAR.

The advisory opinion may be viewed here.  Should you have any questions concerning this BIS advisory opinion or any export related issues, please contact a Barnes/Richardson attorney.