Export control laws limit the ability of foreign governments and persons to access sensitive technology and strategically important items. Accordingly, export control laws operate on both a country-wide basis—with higher or lower levels of control applicable to countries based on their strategic relationship—and on specific persons and entities who may pose a special concern. Unlike customs laws, which deal only with physical goods, export control laws also apply to intangible goods such as software and to underlying technology. Export control laws deal with both traditional exports—i.e. the movement of an item across a national border—as well as constructive or “deemed” exports—when a foreign national is allowed access to controlled technology.
In the United States the primary export control regimes are the International Traffic in Arms Regulations (“ITAR”) administered by the Department of State’s Directorate of Defense Trade Controls, which concerns items with primarily military applications, and the Export Administration Regulations (“EAR”) administered by the Department of Commerce’s Bureau of Industry and Security, which concerns most other items. Export control lawyers may also deal with other more limited programs, such as nuclear trade controls administered by the Department of Energy.
Export control lawyers help clients negotiate these laws. They ensure that the goods, software or technology that clients produce are correctly classified under the EAR, ITAR, or other applicable regime, and help clients obtain export licenses from those agencies when necessary. Accordingly, export control lawyers play a primarily advisory role, usually assisting clients with internal compliance matters or non-adversarial interactions with government regulators. However, they are also called upon to represent those clients in agency enforcement matters. Unlike trade remedies matters or even customs matters, however, export control enforcement matters almost never end up in court.
Within the government, export control lawyers may perform the counterpart of the roles described above but are especially likely to be involved in drafting new export control regulations and identifying new persons and entities to be added to lists of prohibited parties.
Export control lawyers also frequently practice in other areas within the national security space. Their practice frequently includes economic sanctions administered by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), the Department of State, and the United Nations. And thanks to recent changes to the laws governing foreign investment in U.S. businesses, export control lawyers now play a critical role in shepherding such transactions through review by the Committee on Foreign Investment in the United States (“CFIUS”).
Export control practice is a good option for lawyers who like working with cutting edge technology and want a great deal of direct client contact. Export control practice is characterized by long relationships with clients who consult with the lawyer on an as-needed basis, with individual matters often taking a few days or weeks to resolve. Export control lawyers are especially likely to deal with start-ups and other small companies and are therefore as likely to take calls from a C.E.O. as from an in-house counsel. They also need to be able to quickly grasp—and become conversant in—highly technical areas ranging from supersonic aircraft engines, to semiconductor design, to encryption.
Export control practice also offers the most mobility of all the international trade practices. Every law firm that works on cross-border transactions needs at least one export control lawyer in its roster, especially firms that cater to the tech sector. Export control lawyers also have excellent opportunities to move in house, especially due to their significant access to their clients’ executive teams.