What Can Hold Up Your International Project?

The term “export controls” is enough to send most people either to sleep or running for the hills.  In the cybersecurity world it can have often unforeseen consequences. Let’s take a look at why this is. In Britain, Export Controls apply to cryptography in a very strange way and the impact can be overlooked until that unfortunate call that tells you your goods have been seized by customs.    By David Hayes
 
How the Controls Work
The easiest way to look at the controls is on a “catch and release” basis. 
Start by considering that any item that uses cryptography, effectively with a key length in excess of 56 bits, called a “described security algorithm” for “data confidentiality” is subject to export licensing.
 
It is tempting to dismiss this as being ridiculous – your phone would be export licensable! This is where the releases or “decontrols” come in.  Depending how they are counted, there are around fifteen separate decontrols. 
 
One of the main decontrols is what Americans call “mass market” and the UK calls the “Cryptography Note” or “Note 3”.  The American expression gives a clear indication of what the term means – it is sometimes informally called the “PC World test” in the UK.
 
There are many other, more specific, decontrols, ranging from items designed for a limited to banking or money transactions to devices limited to certain types of remote industrial monitoring. However, many items that cybersecurity professionals encounter daily are subject to export licensing, including many enterprise servers, firewalls, switches etc.
 
There are a number of assumptions that are made by exporters that often result in practical problems: 
  • I am only upgrading my employer’s global network – not selling the equipment, so I don’t need a licence.
  • I can buy this thing on the internet, so it must meet this Note 3 thing
  • It only uses readily available cryptography, like SSL
  • It’s my laptop and I’m carrying it with me

Only one of these, number four, means that the item does not require a licence.  Even then, any technology stored on the laptop, or accessed from overseas by using the clean laptop, may require a licence in its own right.

Note 3: Cryptography Note
The main provision of the Note relates to items that are generally available to the public by being sold, without restriction, from stock at retail selling points by means of any of the following:
  • Over-the-counter transactions;
  • Mail order transactions;
  • Electronic transactions; or
  • Telephone call transactions;
There are other elements, relating to whether the cryptography can easily be changed and to ease of installation but availability is the primary driver.
 
Different EU regulators take very different positions on the cryptography note, with some offering significantly more flexibility to exporters than others. The note is notoriously subjective and the UK’s interpretation is equally notoriously conservative, e.g. most satellite communications items are regarded as being export licensable. 
 
In classifying or decontrolling under Note 3, or more specifically the so-called “Note to Note 3”,  a regulator can take into account any factors it considers relevant - in essence, if the regulator wants an item to be controlled it is controlled.  Factors that may be considered include price and typical user - but not in isolation and not on a level playing field between products.  Product A at £10k may be ruled No Licence Required (NLR) under Note 3, while product B at £7k is ruled controlled, depending on the position of each in the market for that type of product and who are the typical purchasers of each.
 
Cryptography Exports – A suggested approach
Firstly, develop an understanding of your equipment, software and technology against the dual-use control list.  The current UK list can be found at: UK Strategic Export Control Lists
 
Look at Category 5, Part 2 Information Security: If you have a need to export from the UK items that use cryptography with a key length in excess of 56 bits, start from the position that, prima facie, these are export controlled. Can you document a rationale for why the item you are assessing meets a decontrol? If not, your item is licensable.  It may be that you are upgrading your own company infrastructure or exporting temporarily to a trade fair or a multitude of other “innocent” uses; it matters not! 
 
When exporting cryptography, a major arms manufacturer, a supermarket company and the world’s largest manufacturer of rubber ducks are all equals.
 
Finally, when dealing with the plethora of cryptographic items exported from the United States as “mass market”, or with a US Export Control Classification Number of 5*992 (where * is A-E), it is NOT safe to assume that the UK regulator will agree with the US decision.  You may well need a licence. Don’t forget that US origin items are often subject to US law outside the US.  US law ‘attaches’ to the item and compliance with US law by foreign nationals is expected and enforced.
 
David Hayes has many year’s experience in export controls, from the varied perspectives of regulator, Head of Compliance for global companies and is a highly as a successful independent consultant:  https://davidhayes-exportcontrols.com/
 
You Might Also Read:
 
Killer Robots For Export:
 
 
« US Police Display Powerful New Surveillance Tools
Taiwan's Entire Population Database Stolen »

CyberSecurity Jobsite
Perimeter 81

Directory of Suppliers

ManageEngine

ManageEngine

As the IT management division of Zoho Corporation, ManageEngine prioritizes flexible solutions that work for all businesses, regardless of size or budget.

NordLayer

NordLayer

NordLayer is an adaptive network access security solution for modern businesses — from the world’s most trusted cybersecurity brand, Nord Security. 

Jooble

Jooble

Jooble is a job search aggregator operating in 71 countries worldwide. We simplify the job search process by displaying active job ads from major job boards and career sites across the internet.

ZenGRC

ZenGRC

ZenGRC - the first, easy-to-use, enterprise-grade information security solution for compliance and risk management - offers businesses efficient control tracking, testing, and enforcement.

North Infosec Testing (North IT)

North Infosec Testing (North IT)

North IT (North Infosec Testing) are an award-winning provider of web, software, and application penetration testing.

Maryville Online - Cybersecurity Program

Maryville Online - Cybersecurity Program

The Cybersecurity Program at Maryville Online is designed to help students reach opportunities in cybersecurity leadership and management through an entirely online curriculum.

SCIS Security

SCIS Security

SCIS Security provides affordable cyber security services and solutions to small to medium sized businesses and homes.

ExpressVPN

ExpressVPN

ExpressVPN is a Virtual Private Network services provider offering secure encrypted access to the internet.

Egyptian Supreme Cybersecurity Council (ESCC)

Egyptian Supreme Cybersecurity Council (ESCC)

ESCC is responsible for developing a national strategy to face and respond to the cyber threats and attacks and to oversee its implementation and update.

Approach

Approach

Approach is a leading provider of cyber security consulting and secure application development services in Belgium.

Vaadata

Vaadata

Vaadata are experts in ethical hacking. We secure your web, mobile and IoT platforms.

RIT Global Cybersecurity Institute

RIT Global Cybersecurity Institute

At RIT's Global Cybersecurity Institute, we educate and train cybersecurity professionals; develop new cybersecurity and AI-based knowledge for industry, academia, and government.

ARIA Cybersecurity Solutions

ARIA Cybersecurity Solutions

The ARIA ADR Automatic Detection & Response solution was designed to find, verify, and stop all types of attacks - automatically and in real time.

Def-Logix

Def-Logix

Def-Logix was founded in 2008 to help solve cyber threats being experienced by government agencies of the United States.

ManageEngine

ManageEngine

As the IT management division of Zoho Corporation, ManageEngine prioritizes flexible solutions that work for all businesses, regardless of size or budget.

Cybernatics

Cybernatics

Cybernatics is inspired by bringing together best-in-class innovations around Cybersecurity and Analytics. We offer tailored enterprise solutions to safeguard your organisations best interests.

Eurotech

Eurotech

Eurotech provides Edge Computers and IoT solutions. We help to connect your assets and make them smarter through secure and agnostic hardware and software technologies.

Amyna Systems

Amyna Systems

Amyna has developed an IoT cybersecurity platform that prevents malignant attacks, helping users to protect themselves from cyberattacks.

Token

Token

Token is changing the way our customers secure their organizations by providing passwordless, biometric, multifactor authentication.

Trium Cyber

Trium Cyber

Trium Cyber - Expert Cyber Underwriting and Claims Management. Based in the US and UK. Backed by Lloyd’s of London.

Assurestor

Assurestor

Assurestor's singular focus is delivering leading cloud-based backup and disaster recovery designed to increase levels of IT resilience.