Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada's Export & Import Controls Bureau Launches Consultations on Encryption Technology

On March 8, 2010, Canada's Export & Import Controls Bureau of the Department of Foreign Affairs and International Trade (the "EICB") announced it is engaging in consultations with interested Canadian companies and wishes to receive from Canadian companies information concerning how the Wassenaar Arrangement Participating States are currently interpreting the individual provisions of the Wassenaar Arrangement Category 5 Part 2 Cryptography Note. The EICB would like to receive submissions no later than April 30, 2010.

The Wassenaar Arrangement is an international agreement that has been established in order to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations. Participating States seek, through their domestic laws and policies, to ensure that transfers of these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities.

The Wassenaar Arrangement Note, in part, relates to encryption software. Certain types of goods, such as those that contain encryption capabilities, may be subject to export controls. Many common types of software programs, including database programs, browsers, word processing programs, and others incorporate encryption functions are within the scope of export controls.

The Participating States of the Wassenaar Arrangement are:

Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom and United States.

The Wassenaar Arrangement Cryptography Note consultation process seeks specific input from Canadian companies and individuals who:

  1. Have received a formal government ruling from a Wassenaar Arrangement Participating State in respect of an item assessed as complying with the provisions of the Cryptography Note; or
  2. Have supplemental information issued by a Wassenaar Arrangement Participating State export control authority clarifying any of the provisions of the Wassenaar Arrangement Category 5 Part 2 Cryptography Note. This information could be a presentation, briefing, correspondence, etc issued by a Wassenaar Arrangement Participating State government authority.

For those Canadian companies and individuals who have obtained such foreign government rulings, Export Controls Division requests they provide the following detailed information:

  1. A spreadsheet identifying the unique items that have been assessed as meeting the Cryptography Note, a short description of the item, which foreign government issued the ruling, and its associated ruling reference identifier. For example

Item

Description

Foreign Government

Reference Identifier

My Modem ABC Ver 3.5

WiFi modem

US

CCATS 3333444

Same as above

Same as above

UK

UK BIS letter dated 10 Jan 2003

For each of the foreign government rulings:

    1. Copy of the foreign government issued ruling;
    2. Copy of the data submission to the foreign government;
    3. Copy of the correspondence exchanges with the foreign government in support of the Cryptography Note subsections;
    4. If the data submission to, and correspondence exchanges with, the foreign government do not explain the product distribution network to the public, provide further details in support of this criterion;
    5. If the data submission to, and correspondence exchanges with, the foreign government do not explain how the cryptographic functionality of the item cannot be easily changed by the user, provide further details in support of this criterion;
    6. If the data submission to, and correspondence exchanges with, the foreign government do not explain how the item is designed for installation by the user without further substantial support by the supplier, provide further details in support of this criterion including the types and level of installation support provided..

For those Canadian companies and individuals who have supplemental information issued by a Wassenaar Arrangement Participating State export control authority clarifying any of the provisions of the Wassenaar Arrangement Category 5 Part 2 Cryptography Note, the Export Controls Division requests they provide the following detailed information:

  1. Copy of the foreign government supplemental information; and
  2. Background describing the context around which the supplemental information was obtained.

This consultation process on the international interpretations of the Wassenaar Arrangement Cryptography Note is restricted to gathering formal foreign government rulings and foreign government supplemental information only. Submissions of any other nature will not be taken into consideration as part of the review.

We would be pleased to help companies organize their information and make their submissions. If you require assistance, please contact Cyndee Todgham Cherniak at 416-307-4168.

For more information, go to the following EICB link - http://www.international.gc.ca/controls-controles/about-a_propos/expor/Wassenaar_crypto.aspx?lang=eng

Leave a Reply

remember my information