Next time you are in the airport, don’t be surprised if some ICE agents, dressed as Viking pillagers, come running after you in the jet-way screaming “What’s in your laptop?” At least that’s a possibility hinted at by BIS Assistant Secretary Darryl Jackson’s remarks to the ACI Conference on International Technology Transfer last Saturday.

In noting the means which are used by foreign governments to obtain controlled technology, Assistant Secretary Jackson cited “theft or other exploitation of laptops, PDAs and other data storage devices carried abroad by U.S. business persons, scientists and engineers.” Accordingly, he suggested that compliance programs should now determine whether “employees traveling overseas have controlled technology on their laptops or PDAs.”

Of course, the EAR, properly read, may currently prohibit employees from traveling outside the United States with laptops containing technical data relating to EAR-controlled dual use technology, depending on the technology and the country. License Exception TMP which allows temporary exports of “tools of the trade” such as laptops permits the temporary export of controlled software but not technical data. Proposals have been suggested to include technical data in License Exception TMP, but they so far have not been adopted by BIS. (Temporary export of laptops by U.S. citizens with technical data controlled by ITAR is permitted under most circumstances by ITAR § 125.4(b)(9) as long as the data is solely for the use of the departing U.S. citizen).

I am probably not stepping out on a limb by saying that dual-use technical data is probably routinely exported by U.S. employees traveling overseas with such data on their laptops, either because they are unaware of the problem or because of a mistaken belief that License Exception TMP applies. Nor has this been a particular enforcement priority by BIS in the past. But if BIS intends to start requiring licenses for temporary exports of laptops for personal use by traveling U.S. employees, this seems to be misguided, particularly where it seems premised mostly on the remote possibility that these laptops will be stolen or compromised. This concern is more properly addressed by enforcing the provision of License Exception TMP that requires the laptop to remain under the “effective control” of the exporter or the exporter’s employee.

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