§ 742.13 Communications intercepting devices; software and technology for communications intercepting devices.

(a) License requirement. (1) In support of U.S. foreign policy to prohibit the export of items that may be used for the surreptitious interception of wire, oral, or electronic communications, a license is required for all destinations, including Australia, Canada, and the United Kingdom, for ECCNs having an “SL” under the “Reason for Control” paragraph. These items include any electronic, mechanical, or other device primarily useful for the surreptitious interception of wire, oral, or electronic communications (ECCNs 5A001.f.1 and 5A980); and for related “software” primarily useful for the surreptitious interception of wire, oral, or electronic communications (ECCN 5D001.c and 5D980.a); and “software” primarily useful for the “development”, “production”, or “use” of devices controlled under ECCNs 5A001.f.1 and 5A980 (ECCNs 5D001.a and 5D980.b); and for “technology” primarily useful for the “development”, “production”, or “use” of items controlled by ECCNs 5A001.f.1, 5D001.a (for 5A001.f.1), 5A980 and 5D980 (ECCNs 5E001.a and 5E980); and for “software” primarily useful to support such ECCN 5E001.a “development”, “production”, or “use” “technology” for 5A001.f.1 equipment and certain 5D001.a “software” (ECCN 5D001.b). These licensing requirements do not supersede the requirements contained in the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. 2512). This license requirement is not reflected on the Commerce Country Chart (supplement no. 1 to part 738 of the EAR). (2) “Communications intercepting devices” are electronic, mechanical, or other devices that can be used for interception of wire, oral, or electronic communications if their design renders them primarily useful for surreptitious listening even though they may also have innocent uses. A device is not restricted merely because it is small or may be adapted to wiretapping or eavesdropping. Some examples of devices to which these restrictions apply are: the martini olive transmitter; the infinity transmitter; the spike mike; and the disguised microphone appearing as a wristwatch, cufflink, or cigarette pack; etc. The restrictions do not apply to devices such as the parabolic microphone or other directional microphones ordinarily used by broadcasters at sports events, since these devices are not primarily useful for surreptitious listening. (b) Licensing policy. (1) License applications, except for those applications for which a license is required for both SL and AT reasons, will generally be approved for exports or reexports requiring a license for SL reasons when the exporter or reexporter is: (i) A provider of wire or electronic communication services or an officer, agent, or employee of, or person under contract with such a provider, in the normal course of the business of providing that wire or electronic communication service; or (ii) An officer, agent, or employee of, or a person under contract with, the United States, one of the 50 States, or a political subdivision thereof, when engaged in the normal course of government activities. For SL reasons, license applications will generally be denied to countries that are subject to controls for AT reasons. The normal course of the business of providing a wire or electronic communications service includes any activity which is a necessary incident to the rendition of the service or to the protection of the rights and property of the provider of that service. (2) Other license applications will generally be denied for exports or reexports requiring a license for SL reasons. (c) Contract sanctity. Contract sanctity provisions are not available for license applications involving exports and reexports of communications interception devices. (d) U.S. controls. Controls on items classified under ECCNs 5A980, 5D980, and 5E980 are maintained by the United States government for foreign policy purposes.