On July 1, 2009, a federal judge sentenced 71-year old retired University of Tennessee professor, John Reece Roth, to four years in prison for illegal exports of military technical information. Roth was convicted on September 3, 2008 by a jury in the U.S. District Court for the Eastern District of Tennessee of conspiring with Atmospheric Glow Technologies, Inc. (“AGT”), a privately held plasma technology company located in Knoxville, Tennessee, to unlawfully export fifteen different “defense articles” to a citizen of the People’s Republic of China, in violation of the Arms Export Control Act (“AECA”), 22 U.S.C. § 2778. Those illegal exports related to technical information about plasma actuators which were being developed for use in U.S. Air Force (“USAF”) drones. Professor Roth was also convicted of one count of wire fraud for defrauding the University of Tennessee.

It is well established that transfers of controlled defense technical data to foreign nationals, even in the United States, violate the AECA if done without proper authorization from the U.S. government. There have been numerous prosecutions of violations in the past, but this case marks a rare instance in which AECA penalties have been imposed in a university setting. U.S. District Judge Tom Varlan said Roth could have caused “harm to the security of the United States” by allowing foreign national students access to technology related to USAF drones. The same day he was sentenced, Roth filed a motion for release pending appeal. Judge Varlan stated that he would allow Roth to go free pending a determination by the U.S. Bureau of Prisons on where he will be housed.

The AECA regulates the export from and import into the United States of “defense articles” and “defense services.” Defense articles include any items or technical data designated on the United States Munitions List, which is codified in Section 121 of the International Traffic in Arms Regulations (“ITAR”). Technical data encompasses information required for the design, development, production, testing, or modification of defense articles. Defense services include the furnishing of assistance to foreign persons, whether in the United States or abroad, in the design, development, testing, or use of defense articles. Under the AECA, the export of defense-related materials, including technical data related to such materials, to a foreign national or a foreign country, is prohibited without a valid license or written approval from the U.S. Department of State, unless an exemption applies. This includes sharing technical data with a foreign national in the United States.

Although the four-year sentence represents a downward departure from the Federal Sentencing Guidelines, and is less than the federal prosecutors’ recommendation of a sentencing range between 78 to 97 months, this case demonstrates that universities and professors engaged in research and development face a real risk of prosecution for violations of U.S. export controls. U.S. Attorney Russ Dedrick of the Eastern District of Tennessee stated, “This case should send a stern warning to those who would betray the trust of our nation by violating the export control laws by providing our military information to foreign nationals.” In addition, David Kris, Assistant Attorney General for National Security, stated, “The illegal export of restricted military data represents a serious threat to national security. We know that foreign governments are actively seeking this information for their own military development. Today’s sentence should serve as a warning to anyone who knowingly discloses restricted military data in violation of our laws.” This sentence may be a harbinger of similar enforcement actions, and serves as a cautionary tale to universities and other organizations involved in research and development about the importance of appropriate compliance measures to protect against improper exports and disclosures of controlled goods and technical data. Proper compliance policies and procedures can not only assist in preventing and detecting violations, they can aid in the defense of an institution in cases where individuals violate established policy when conducting illegal exports.

This article was prepared by Kimberly Levy from Fulbright's International Trade Practice Group.