Page 489

N Laws, Documents, and Regulations, Relevant to Cryptography

N.1 STATUTES

N.1.1 Wire and Electronic Communications Interception and Interception of Oral Communications (U.S. Code, Title 18, Chapter 119)
Sec. 2510. Definitions.

As used in this chapter:

(1) 'wire communication' means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication;

NOTE: The material presented in this appendix has been reprinted from electronic files available on the Internet and is intended for use as a general reference, and not for legal research or other work requiring authenticated primary sources.



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Page 489 N Laws, Documents, and Regulations, Relevant to Cryptography N.1 STATUTES N.1.1 Wire and Electronic Communications Interception and Interception of Oral Communications (U.S. Code, Title 18, Chapter 119) Sec. 2510. Definitions. As used in this chapter: (1) 'wire communication' means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication; NOTE: The material presented in this appendix has been reprinted from electronic files available on the Internet and is intended for use as a general reference, and not for legal research or other work requiring authenticated primary sources.

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Page 490 (2) 'oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication; (3) 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States; (4) 'intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device; (5) 'electronic, mechanical, or other device means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than— (a)  any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; (b)  a hearing aid or similar device being used to correct subnormal hearing to not better than normal; (6) 'person' means any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation; (7) 'Investigative or law enforcement officer' means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses; (8) 'contents', when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication; (9) 'Judge of competent jurisdiction' means— (a) a judge of a United States district court or a United States court of appeals; and (b) a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire, oral, or electronic communications;

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Page 491 (10) 'communication common carrier' shall have the same meaning which is given the term 'common carrier' by section 153(h) of title 47 of the United States Code; (11) 'aggrieved person' means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed; (12) 'electronic communication' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include— (a) any wire or oral communication; (b) any communication made through a tone-only paging device; or (c) any communication from a tracking device (as defined in section 3117 of this title); (13) 'user' means any person or entity who— (a) uses an electronic communication service; and (b) is duly authorized by the provider of such service to engage in such use; (14) 'electronic communications system' means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications; (15) 'electronic communication service' means any service which provides to users thereof the ability to send or receive wire or electronic communications; (16) 'readily accessible to the general public' means, with respect to a radio communication, that such communication is not— (a) scrambled or encrypted; (b) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (c) carried on a subcarrier or other signal subsidiary to a radio transmission; (d) transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; (e) transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio; or (f) an electronic communication; (17) 'electronic storage' means— (a) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

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Page 492 (b) any storage of such communication by an electronic communication service for purposes of backup protection of such communication; and (18) 'aural transfer' means a transfer containing the human voice at any point between and including the point of origin and the point of reception. Sec. 2511. Interception and disclosure of wire, oral, or electronic communications prohibited. (1) Except as otherwise specifically provided in this chapter any person who— (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when— (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States; and (A) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or (B) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). (2)(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the

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Page 493 normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. (ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with— (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order or certification under this chapter. (b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained. (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication

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Page 494 is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. (e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act. (f) Nothing contained in this chapter or chapter 121, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire and oral communications may be conducted. (g) It shall not be unlawful under this chapter or chapter 121 of this title for any person— (i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public; (ii) to intercept any radio communication which is transmitted— (I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress; (II) by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public; (III) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (IV) by any marine or aeronautical communications system; (iii) to engage in any conduct which— (I) is prohibited by section 633 of the Communications Act of 1934; or (II) is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act; (iv) to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or (v) for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted. (h) It shall not be unlawful under this chapter— (i) to use a pen register or a trap and trace device (as those terms are defined for

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Page 495 the purposes of chapter 206 (relating to pen registers and trap and trace devices) of this title); or (ii) for a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service. (3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. (b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication- (i) as otherwise authorized in section 2511(2)(a) or 2517 of this title; (ii) with the lawful consent of the originator or any addressee or intended recipient of such communication; (iii) to a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or (iv) which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency. (4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both. (b) If the offense is a first offense under paragraph (a) of this subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then (i) if the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, and the conduct is not that described in subsection (5), the offender shall be fined under this title or imprisoned not more than one year, or both; and (ii) if the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, the offender shall be fined not more than $500. (c) Conduct otherwise an offense under this subsection that consists of or re-

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Page 496 lates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted— (i) to a broadcasting station for purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. (5)(a)(i) If the communication is— (A) a private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or (B) a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent jurisdiction. (ii)  In an action under this subsection— (A) if the violation of this chapter is a first offense for the person under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of this title, the Federal Government shall be entitled to appropriate injunctive relief; and (B) if the violation of this chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in any prior civil action under section 2520, the person shall be subject to a mandatory $500 civil fine. (b) The court may use any means within its authority to enforce an injunction issued under paragraph (ii)(A), and shall impose a civil fine of not less than $500 for each violation of such an injunction. Sec. 2512. Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited. (1) Except as otherwise specifically provided in this chapter, any person who intentionally— (a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; (b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component

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Page 497 thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or (c)  places in any newspaper, magazine, handbill, or other publication any advertisement of— (i)  any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or (ii)  any other electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire, oral, or electronic communications, knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce, shall be fined not more than $10,000 or imprisoned not more than five years, or both. (2) It shall not be unlawful under this section for— (a)  a provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service; or (b)  an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the United States, a State, or a political subdivision thereof, to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications. Sec. 2513. Confiscation of wire, oral, or electronic communication intercepting devices. Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of section 2511 or section 2512 of this chapter may be seized and forfeited to the United States. All provisions of law relating to (1) the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violations of the customs laws contained in title 19 of the United States Code, (2) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof, (3) the remission or mitigation of such forfeiture, (4) the compromise of claims, and (5) the award of compensation to informers in respect of such forfeitures, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not incon-

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Page 498 sistent with the provisions of this section; except that such duties as are imposed upon the collector of customs or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the provisions of the customs laws contained in title 19 of the United States Code shall be performed with respect to seizure and forfeiture of electronic, mechanical, or other intercepting devices under this section by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General. Sec. 2514. Repealed. Sec. 2515. Prohibition of use as evidence of intercepted wire or oral communications. Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter. Sec. 2516. Authorization for interception of wire, oral, or electronic communications. (1) The Attorney General, Deputy Attorney General, Associate Attorney General,' or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of— (a) any offense punishable by death or by imprisonment for more than one year under sections 2274 through 2277 of title 42 of the United States Code (relating to the enforcement of the Atomic Energy Act of 1954), section 2284 of title 42 of the United States Code (relating to sabotage of nuclear facilities or fuel), or under the following chapters of this title: chapter 37 (relating to espionage), chapter 105 (relating to sabotage), chapter 115 (relating to treason), chapter 102 (relating to riots), chapter 65 (relating to malicious mischief), chapter 111 (relating to destruction of vessels), or chapter 81 (relating to piracy); 1 See 1984 Amendment note below.

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Page 499 (b) a violation of section 186 or section 501(c) of title 29, United States Code (dealing with restrictions on payments and loans to labor organizations), or any offense which involves murder, kidnapping, robbery, or extortion, and which is punishable under this title; (c) any offense which is punishable under the following sections of this title: section 201 (bribery of public officials and witnesses), section 215 (relating to bribery of bank officials), section 224 (bribery in sporting contests), subsection (d), (e), (f), (g), (h), or (i) of section 844 (unlawful use of explosives), section 1032 (relating to concealment of assets), section 1084 (transmission of wagering information), section 751 (relating to escape), section 1014 (relating to loans and credit applications generally; renewals and discounts), sections 1503, 1512, and 1513 (influencing or injuring an officer, juror, or witness generally), section 1510 (obstruction of criminal investigations), section 1511 (obstruction of State or local law enforcement), section 1751 (Presidential and Presidential staff assassination, kidnaping, and assault), section 1951 (interference with commerce by threats or violence), section 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), section 1958 (relating to use of interstate commerce facilities in the commission of murder for hire), section 1959 (relating to violent crimes in aid of racketeering activity), section 1954 (offer, acceptance, or solicitation to influence operations of employee benefit plan), section 1955 (prohibition of business enterprises of gambling), section 1956 (laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 659 (theft from interstate shipment), section 664 (embezzlement from pension and welfare funds), section 1343 (fraud by wire, radio, or television), section 1344 (relating to bank fraud), sections 2251 and 2252 (sexual exploitation of children), sections 2312, 2313, 2314, and 2315 (interstate transportation of stolen property), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), section 1203 (relating to hostage taking), section 1029 (relating to fraud and related activity in connection with access devices), section 3146 (relating to penalty for failure to appear), section 3521(b)(3) (relating to witness relocation and assistance), section 32 (relating to destruction of aircraft or aircraft facilities), section 1963 (violations with respect to racketeer influenced and corrupt organizations), section 115 (relating to threatening or retaliating against a Federal official), and section 1341 (relating to mail fraud), section 351 (violations with respect to congressional, Cabinet, or Supreme Court assassinations, kidnaping, and assault), section 831 (relating to prohibited transactions involving nuclear materials), section 33 (relating to destruction of motor vehicles or motor vehicle facilities), section 175 (relating to biological weapons), or section 1992 (relating to wrecking trains); (d) any offense involving counterfeiting punishable under section 471, 472, or 473 of this title; (e) any offense involving fraud connected with a case under title 11 or the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States; (f) any offense including extortionate credit transactions under sections 892, 893, or 894 of this title;

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Page 666 addition to any other restrictions in Sec. 779.4, the use of General License GTDR is further restricted by Sec. 778.8(a)(5) of this subchapter. Sec. 779.5 Validated license applications.      (a) General. No technical data, other than that exportable without license to Canada or under general license to other destinations, may be exported from the United States without a validated export license. Such validated export licenses are issued by the Office of Export Licensing upon receipt of an appropriate export application or reexport request. An application for a technical data license shall consist of: (1) Form BXA-622P, Application for Export License, accompanied by; (2) A letter of explanation described in Sec. 779.5(d) for technology or description of the capabilities of the software; and (3)  For shipments to the Czech Republic, Hungary, Poland, and the Slovak Republic, an Import Certificate issued by the appropriate national government. (See Sec. 775.8 and supplement No. 1 to part 775 of this subchapter.)      (b) Application Form. Form ITA-622P shall be completed as provided in Sec. 772.4, except that Items 9(a) and 11 shall be left blank. In Item 9(b), "Description of Commodity or Technical Data," enter a general statement which specifies the technical data (e.g., blueprints, manuals, etc.). In Purpose."      (c) [Reserved]      (d) Letter of explanation. Each application shall be supported by a comprehensive letter of explanation in duplicate. This letter shall set forth all the facts required to present to the Office of Export Licensing a complete disclosure of the transaction including, if applicable, the following: (1) The identification of all parties to the transaction; (2) The exact project location where the technical data will be used; (3) The type of technical data to be exported; (4) The form in which the export will be made; (5) The uses for which the data will be employed; (6) An explanation of the process, product, size, and output capacity of the plant or equipment, if applicable, or other description that delineates, defines, and limits the data to be transmitted (the "technical scope"); (7) The availability abroad of comparable foreign technical data.      (e) Special provisions— (1)  Maritime nuclear propulsion plants and related commodities.16 These special provisions are applicable to technical data relating to maritime (civil) nuclear propulsion plants, their land prototypes, and special facilities for their construc- 16 See Sec. 779.8(a) which sets forth provisions prohibiting exports and reexports of certain technical data and products manufactured therefrom.

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Page 667 tion, support, or maintenance, including any machinery, device, component, or equipment specifically developed or designed for use in such plants or facilities. Every application for license to export technical data relating to any of these commodities shall include the following: (i) A description of the foreign project for which the technical data will be furnished; (ii) A description of the scope of the proposed services to be offered by the applicant, his consultant(s), and his subcontractor(s), including all the design data which will be disclosed; (iii) The names, addresses and titles of all personnel of the applicant, his consultant(s) and his subcontractor(s) who will discuss or disclose the technical data or be involved in the design or development of the technical data; (iv) The beginning and termination dates of the period of time during which the technical data will be discussed or disclosed and a proposed time schedule of the reports which the applicant will submit to the U.S. Department of Commerce, detailing the technical data discussed or disclosed during the period of the license; (v)  The following certification: I (We) certify that if this application is approved, I (we) and any consultants, subcontractors, or other persons employed or retained by us in connection with the project thereby licensed will not discuss with or disclose to others, directly or indirectly, any technical data relating to U.S. naval nuclear propulsion plants. I (We) further certify that I (we) will furnish to the U.S. Department of Commerce all reports and information which it may require concerning specific transmittals or disclosures of technical data pursuant to any license granted as a result of this application; (vi) A statement of the steps which the applicant will take to assure that personnel of the applicant, his consultant(s) and his subcontractor(s) will not discuss or disclose to others technical data relating to U.S. naval nuclear propulsion plants; and (vii) A written statement of assurance from the foreign importer that unless prior authorization is obtained from the Office of Export Licensing, the importer will not knowingly export directly or indirectly to Country Group Q, S, W, Y, or Z, or the People's Republic of China, the direct product of the technical data. However, if the U.S. exporter is not able to obtain this statement from the foreign importer, the U.S. exporter shall attach an explanatory statement to his license application setting forth the reasons why such an assurance cannot be obtained. (2)  Other license applications. For all other license applications to export technical data identified in an entry with an ECCN ending in the code letter "A" to any destination, other than Country Group Q, S, W, Y, or Z, or the People's Republic of China, an applicant shall attach to the license application a written statement from his foreign importer assuring that, unless prior authorization is obtained from the Office of Export Licensing, the importer will not knowingly reexport the technical data to any destination, or export any national security controlled direct product of the technical data, directly or indirectly, to Country Group Q, S, W, Y, or Z, or the People's Republic of China. However, if the U.S. exporter is not able to obtain the required statement from his importer, the ex-

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Page 668 porter shall attach an explanatory statement to his license setting forth the reasons why such an assurance cannot be obtained.      (f) Validity period and extension- (1)  Initial validity. Validated licenses covering exports of technical data will generally be issued for a validity period of 24 months. Upon request, a validity period exceeding 24 months may be granted where the facts of the transaction warrant it and the Office of Export Licensing determines that such action would be consistent with the objectives of the applicable U.S. export control program. Justification for a validity period exceeding 24 months should be provided in accordance with the procedures set forth in Sec. 772.9(d)(2) for requesting an extended validity period with a license application. The Office of Export Licensing will make the final decision on what validity beyond 24 months, if any, should be authorized in each case. (2)  Extensions. A request to extend the validity period of a technical data license shall be made on Form ITA-685P in accordance with the procedures set forth in Sec. 772.12(a). The request shall include on Form ITA-685P, in the space entitled "Amend License to Read as Follows," whether the license has been previously extended and the date(s) and duration of such extension(s). The Office of Export Licensing will make the final decision on what extension beyond 24 months, if any, should be authorized in each case. (See Sec. 779.8(c)(1) for validity period extensions for reexports of technical data.) Sec. 779.6 Exports under a validated license.      (a) Use of validated licenses— (1)  Retention of license. The validated technical data license need not be presented to the customs office or post office but shall be retained and made available for inspection in accordance with the provisions of Sec. 787.13 of this subchapter. (2)  Return of revoked or suspended technical data licenses. If the Office of Export Licensing revokes or suspends a technical data license, the licensee shall return the license immediately to the Office of Export Licensing in accordance with the instructions in Sec. 786.2(d) of this subchapter.      (b) Records. Any person to whom a validated technical data license has been issued shall retain the license and maintain complete records in accordance with Sec. 786.2(d) of this subchapter, including any export licenses (whether used or unused, valid or expired) and all supporting documents and shipping records. Sec. 779.7 Amendments. Requests for amendments shall be made in accordance with the provisions of Sec. 772.11. Changes requiring amendment include any expansion or upgrade of the technical scope that was described in the letter of explanation, as approved or modified on the export license.

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Page 669 Sec. 779.8 Reexports of technical data and exports of the product manufactured abroad by use of United States technical data.      (a) Prohibited exports and reexports. Unless specifically authorized by the Office of Export Licensing, or otherwise authorized under the provisions of paragraph (b) of this section, no person in the United States or in a foreign country may: (1)  Reexport any technical data imported from the United States, directly or indirectly, in whole or in part, from the authorized country(ies) of ultimate destination; (2)  Export any technical data from the United States with the knowledge that it is to be reexported, directly or indirectly, in whole or in part, from the authorized country(ies) of ultimate destination; or (3)  Export or reexport to Country Group Q, S, W, Y or Z, the People's Republic of China or Afghanistan any foreign produced direct product of U.S. technical data, or any commodity produced by any plant or major component thereof that is a direct product of U.S. technical data, if such direct product or commodity is covered by the provisions of Sec. 779.4(f) or Sec. 779.5(e)(1); or      (b) Permissive reexports— (1)  Exportable under General License GTDA or GTDR. Any technical data which have been exported from the United States may be reexported from any destination to any other destination provided that, at the time of reexport, the technical data may be exported directly from the United States to the new country of destination under General License GTDA or GTDR and provided that all of the requirements and conditions for use of these general licenses have been met. (2)  COCOM authorization. Separate specific authorization by the Office of Export Licensing to reexport any U.S. origin technical data is not required if all of the following conditions are met: (i)  The data being exported are identified by the suffix "A" on the CCL; (ii)  The export or reexport is from a COCOM participating country, i.e., Australia, Belgium, Canada, Denmark, France, the Federal Republic of Germany, Greece, Italy, Japan, Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, or the United Kingdom; (iii) The export or reexport is made in accordance with the conditions of the licensing authorization issued by the applicable COCOM participating country; and (iv) The export or reexport is to a country in Country Group Q, W, or Y or the People's Republic of China. (3)  Direct product. Separate specific authorization by the Office of Export Licensing to export or reexport the direct product of U.S. origin technical data is not required if the direct product, were it of U.S. origin, could be shipped under any of the permissive reexport provisions of Sec. 774.2 of this subchapter. (4)  People's Republic of China. Separate specific authorization by the Office of Export Licensing is not required to reexport software from a COCOM participating country, Austria, Finland, Hong Kong, Ireland, New Zealand, Sweden, or Switzerland to the People's Republic of China that meets the requirements set forth in Advisory Notes for the People's Republic of China or for Country Groups

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Page 670 Q, W, Y in the Commerce Control List (Supplement No. 1 to Sec. 799.1 of this subchapter) and are licensed for shipment by the country from which reexported.      (c) Specific authorization to reexport- (1) Submission of request for reexport authorization. Requests for specific authorization to reexport technical data or to export any product thereof, as applicable, shall be submitted on Form ITA-699P, Request To Dispose of Commodities or Technical Data Previously Exported (OMB approval No. 0625-0009), to: Office of Export Licensing, P.O. Box 273, Washington, DC 20044. (See Supplement No. 1 to Part 774 for instructions on completing the form.) If Form ITA-699P is not readily available, a request for specific authorization to reexport technical data or to export any product thereof, as applicable, may be submitted by letter. The letter shall bear the words "Technical Data Reexport Request" immediately below the heading or letterhead and contain all the information required by Sec. 779.5(d). Authorization to reexport technical data or to export the product thereof, if granted, will generally be issued with a validity period of 24 months on Form ITA- 699P, or by means of a letter from the Office of Export Licensing. Any request for extension of the validity period shall be requested in accordance with Sec. 774.5(b), and shall specify the period for which additional validity is required. The Office of Export Licensing will make the final decision on what validity beyond 24 months, if any, should be authorized in each case. (2) Return of reexport authorization. If the Office of Export Licensing revokes or suspends a reexport authorization, the licensee shall return the reexport authorization immediately to the Office of Export Licensing. (3)  Records. Any person to whom a reexport authorization has been issued shall retain and make available for inspection records in accordance with the provisions of Sec. 787.13 of this subchapter, including any reexport authorizations (whether used or unused, valid or expired) and all supporting documents and shipping records.      (d) Effect of foreign laws. No authority granted by the U.S. Office of Export Licensing, or under the provisions of the U.S. Export Administration Regulations, to reexport technical data or export a product thereof shall in any way relieve any person from his responsibility to comply fully with the laws, rules, and regulations of the country from which the reexport or export is to be made or of any other country having authority over any phase of the transaction. Conversely, no foreign law, rule, regulation, or authorization in any way relieves any person from his responsibility to obtain such authorization from the U.S. Office of Export Licensing as may be required by the U.S. Export Administration Regulations. Sec. 779.9 Commercial agreements with certain countries. Pursuant to section 5(j) of the Export Administration Amendments Act of 1979, as amended, any non-governmental U.S. person or firm that enters into an

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Page 671 agreement with any agency of the government of a controlled country (Country Groups Q, W, Y, and the People's Republic of China), which agreement encourages technical cooperation and is intended to result in the export from the U.S. to the other party of U.S.-origin technical data (except under General License GTDA or General License GTDR as provided under the provisions of Sec. 779.4(b)), shall submit those portions of the agreement that include the statement of work and describe the anticipated exports of data to the Office of Technology and Policy Analysis, Room 4054, P.O. Box 273, Washington, DC 20044. This material shall be submitted no later than 30 days after the final signature on the agreement.      (a) This requirement does not apply to colleges, universities and other educational institutions.      (b) The submission required by this section does not relieve the exporter from the licensing requirements for controlled technical data and goods.      (c) Acceptance of a submission does not represent a judgment as to whether Export Administration will or will not issue any authorization for export of technical data. Sec. 779.10 Other applicable provisions. As far as may be consistent with the provisions of this part, all of the other provisions of the Export Administration Regulations shall apply equally to exports of technical data and to applications for licenses and licenses issued under this part. Supplement No. 1 to Part 779—Technical Data Interpretations      1. Technology based on U.S.-origin technical data. U.S.-origin technical data does not lose its U.S.-origin when it is redrawn, used, consulted, or otherwise commingled abroad in any respect with other technical data of any other origin. Therefore, any subsequent or similar technical data prepared or engineered abroad for the design, construction, operation, or maintenance of any plant or equipment, or part thereof, which is based on or utilizes any U.S.-origin technical data, is subject to the same U.S. Export Administration Regulations that are applicable to the original U.S.-origin technical data, including the requirement for obtaining Office of Export Licensing authorization prior to reexportation.      2. Distinction between General and Validated License requirements for shipment to QWY destinations of technical data and replacement parts. A number of exporters have recently asked where the line is drawn between general license and validated license exports to PQWY destinations of technical data related to equipment exports. The export of technical data under validated license is authorized only to the extent specifically indicated on the face of the license. The only data related to equipment exports that can be provided under general license is the publicly

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Page 672 available data authorized by General License GTDA, or the assembly, installation, maintenance, repair, and operation data authorized by General License GTDR. 771.20 General License GLX; exports to Country Groups QWY and the People's Republic of China.      (a) Scope. A general license designated GLX is established, authorizing exports to civil end-users in Country Group QWY and the People's Republic of China (PRC) of certain specified items.      (b) Eligible exports. The items eligible for this general license are those described in the Advisory Notes in the CCL that indicate likelihood of approval for "Country Groups QWY and the PRC," except items described in the notes to ECCNs 1C18A and 2B18A. Likelihood of approval notes that apply only to the PRC, or to specified destinations in Country Group Y also qualify for this general license to eligible destinations (however, those notes indicating Country Group Q or W only, are specifically not eligible). In addition, those entries and sub-entires listed in Supplement No. 1 to this Part 771 are eligible to export under this general license. However, this general license is not available for items that are also subject to missile technology (MT), nuclear nonproliferation (NP), or foreign policy (FP) controls to the recipient country.      (c) Eligible consignees. This general license is available only for exports to civil end-users for civil end-uses. Exports under this general license may not be made to military end-users or to known military uses. Such exports will continue to require an individual validated license and be considered on a case-by-case basis. In addition to conventional military activities, military uses include any proliferation activities described in Part 778 of this subchapter. Retransfers to military end-users or end-uses in eligible countries are strictly prohibited, without prior authorization. The relevant part of the Commerce Control List is the "Information Security" category, as described below (taken from Supplement Number 1 to Section 799.1 of the Code of Federal Regulations). II. "Information Security" NOTE: The control status of "information security" equipment, "software", systems, application specific "assemblies", modules, integrated circuits, components, technology or functions is defined in the ''information security" entries in this Category even if they are components or "assemblies" of other equipment. NOTE: "Information security" equipment, "software", systems, application specific "assemblies", modules, integrated circuits, components, technology or functions that are excepted from control, not controlled, or eligible for licensing under an Advisory Note are under the licensing jurisdiction of the Department of Commerce. For all other, exporters requesting a validated license from the De-

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Page 673 partment of Commerce must provide a statement from the Department of State, Office of Defense Trade Control, verifying that the equipment intended for export is under the licensing jurisdiction of the Department of Commerce. A. Equipment, Assemblies and Components 5A11A Systems, equipment, application specific "assemblies", modules or integrated circuits for "information security", as described in this entry, and other specially designed components therefor. List of Items Controlled Systems, equipment, application specific "assemblies", modules or integrated circuits for "information security," as follows, and other specially designed components therefor:      a. Designed or modified to use "cryptography" employing digital techniques to ensure "information security'';      b. Designed or modified to perform cryptanalytic functions;      c. Designed or modified to use "cryptography" employing analog techniques to ensure "information security", except:       c.1. Equipment using "fixed" band scrambling not exceeding 8 bands and in which the transpositions change not more frequently than once very second;      c.2. Equipment, using "fixed" band scrambling exceeding 8 bands and in which the transpositions change not more frequently than once every ten seconds;      c.3. Equipment using "fixed" frequency inversion and in which the transpositions change not more frequently than once every second;      c.4. Facsimile equipment;      c.5. Restricted audience broadcast equipment;      c.6. Civil television equipment;      d.  Designed or modified to suppress the compromising emanations of information-bearing signals; NOTE: 5A11.d does not control equipment specially designed to suppress emanations for health and safety reasons.      e. Designed or modified to use cryptographic techniques to generate the spreading code for "spread spectrum" or hopping code for "frequency agility" systems;      f. Designed or modified to provide certified or certifiable "multilevel security" or user isolation at a level exceeding Class B2 of the Trusted Computer System Evaluation Criteria (TCSEC) or equivalent;      g. Communications cable systems designed or modified using mechanical, electrical or electronic means to detect surreptitious intrusion. 5B11A Equipment specially designed for the development of equipment or functions controlled by the "information security" entries in this Category, including measuring or test equipment.

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Page 674 5B12A Equipment specially designed for the production of equipment or functions controlled by the "information security" entries in this Category, including measuring, test, repair or production equipment. 5B13A Measuring equipment specially designed to evaluate and validate the "information security" functions controlled by the "information security" entries in 5A or 5D. C. Materials [Reserved] D. "Software" 5D11A "Software" specially designed or modified for the "development", "production", or "use" of equipment controlled by "information security'' entries 5A11, 5B11, 5B12, or 5B13 or "software" controlled by "information security" entries 5D11, 5D12, or 5D13. 5D12A "Software" specially designed or modified to support technology controlled by "information security" entry 5E11. 5D13A Specific "software" as follows. NOTE: Exporter must have determined that the software is not controlled by the Office of Defense Trade Control, Department of State, before using this general license. List of Items Controlled      a. "Software" having the characteristics, or performing or simulating the functions of the equipment controlled by the "information security" entries in 5A or 5B.      b. "Software" to certify "software" controlled by 5D13.a;      c. "Software" designed or modified to protect against malicious computer damage, e.g., viruses. E. Technology 5E11A Technology according to the General Technology Note for the "development", "production", or "use" of equipment controlled by "Information Security" entries 5A11, 5B11, 5B12, or 5B13 or "software" controlled by "information security" entries 5D11, 5D12, or 5D13. NOTES for "Information Security": NOTE 1: "Information security" entries in this Category do not control:      a. "Personalized smart cards" using "cryptography" restricted for use only in equipment or systems released from control under 5A11.c.1 to c.6, by this Note or as described in "Information Security" Advisory Notes 3 and 4 below;

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Page 675      b. Equipment containing "fixed" data compression or coding techniques;      c. Receiving equipment for radio broadcast, pay television or similar restricted audience television of the consumer type, without digital encryption and where digital decryption is limited to the video, audio or management functions;      d. Portable (personal) or mobile radio-telephones for civil use; e.g., for use with commercial civil cellular radiocommunications systems, containing encryption, when accompanying their users;      e. Decryption functions specially designed to allow the execution of copy-protected "software", provided that the decryption functions are not user-accessible. NOTE 2: "Information Security" entries in this Category do not control:      a.  "Software" ''required" for the "use" of equipment released by "Information Security" Note 1;      b. "Software" providing any of the functions of equipment released by "Information Security" Note 1; ADVISORY NOTE 3: Licenses are likely to be approved, as administrative exceptions, for exports to Country Group W or cellular radio equipment or systems specially designed for cryptographic operation, provided any message traffic encryption capability that is within the scope of the control of the "information security" entries in Category 5 and that is contained in such equipment or systems is irreversibly disabled. N.B.: Provided message traffic encryption is not possible within such a system, the export of mobile or portable cellular radio subscriber equipment containing cryptographic capabilities is permitted under this Advisory Note. ADVISORY NOTE 4: Licenses are likely to be approved, as administrative exceptions, for exports to satisfactory end-users in Country Groups QWY and the PRC of the following cryptographic equipment, provided that the equipment is intended for civil use:      a. Access control equipment, such as automatic teller machines, self-service statement printers or point of sale terminals, that protects password or personal identification numbers (PIN) or similar data to prevent unauthorized access to facilities, but does not allow for encryption of files or text, except as directly related to the password of PIN protection;      b. Data authentication equipment that calculates a Message Authentication Code (MAC) or similar result to ensure no alteration of text has taken place, or to authenticate users, but does not allow for encryption of data, text or other media other than that needed for the authentication;      c.  Cryptographic equipment specially designed, developed or modified for use in machines for banking or money transactions, such as automatic teller machines, self-service statement printers, point of sale terminals or equipment for the encryption of interbanking transactions, and intended for use only in such applications. ADVISORY NOTE 5: (Eligible for GTDR). Licenses are likely to be approved as administrative exceptions, for exports to satisfactory end-users in Country Groups QWY and the PRC of the following cryptographic "software";      a. "Software" required for the "use" of equipment eligible for administrative exceptions treatment under Advisory Notes 3 and 4 in the Notes for "Information Security" (Category 5);      b.  "Software" providing any of the functions of equipment eligible for administrative exceptions treatment under Advisory Notes 3 and 4 in the Notes for "Information Security" (Category 5). [End of Notes for "Information Security."]

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Page 676 III. Other Equipment, Materials, "Software" and Technology A. Equipment, Assemblies and Components 5A20B Telemetering and telecontrol equipment usable as launch support equipment for unmanned air vehicles or rocket systems. 5A80D Communications intercepting devices; and parts and accessories therefor. (Specify by name.) (Also see S776.13 of this subchapter.) NOTES:  1. These items are subject to the United Nations Security Council arms embargo against Rwanda described in S785.4 (a) of this subchapter.           2. Controls on this equipment are maintained in accordance with the Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. 90-351).