One of the greatest strengths of open source development is how it enables collaboration across the entire world. However, because open source development is a global activity, it necessarily involves making available software across national boundaries. Some countries’ export control regulations, such as the United States, may require taking additional steps to ensure that an open source project is satisfying obligations under local regulations.
The Linux Foundation has recently published a whitepaper on considerations for open source communities in detail, which can be downloaded here. This blog post is a summary of the general principles open source communities should be aware of and follow as it relates to both US export control requirements and open source encryption.
Export controls in the United States and other countries
The primary source of United States federal government restrictions on exports are the Export Administration Regulations or EAR. The EAR is published and updated regularly by the Bureau of Industry and Security (BIS) within the US Department of Commerce. The EAR applies to all items “subject to the EAR,” and may control the export, re-export, or transfer (in-country) of such items.
Under the EAR, the term “export” has a broad meaning. Exports can include not only the transfer of a physical product from inside the US to an external location but also other actions. The simple act of releasing technology to someone other than a US citizen or lawful permanent resident within the United States is deemed to be an export, as is making available software for electronic transmission that can be received by individuals outside the US.
This may seem alarming for open source communities, but the good news is open source technologies that are published and made publicly available to the world are not subject to the EAR. Therefore, open source remains one of the most accessible models for global collaboration.
For the purposes of compliance with the EAR, if the open source technology is publicly available without restrictions upon its further dissemination, then it is “published” and therefore “not subject to” the EAR.
In addition to the United States, the European Union has similar provisions under its own export control regulations.
What kind of open source projects are not subject to the EAR and export restrictions?
All of them. Open source software from the Linux Foundation and project communities we work with is published and made available to the public without restrictions on further dissemination or distribution of the software.
The following typical scenarios (but not an exhaustive list) are not subject to the EAR because “open source” is “published”:
- Open source software that is published publicly is not subject to the EAR
- Open source specifications that are published publicly are not subject to the EAR
- Open source files that describe the designs for hardware that are published publicly are not subject to the EAR
- Open source software binaries that are published publicly are not subject to the EAR
To meet the requirement of “published” under the EAR, however, open source communities may need to take an additional step if the project includes encryption technology.
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