Submission to MeitY seeking clarification of export control of encryption items, software and technology

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Submission to MeitY seeking clarification of export control of encryption items, software and technology

Garima Prakash

@GarimaP

June 11, 2021

Public Policy

294

On June 11, 2021, NASSCOM responded to Ministry of Electronics and Information Technology (MeitY) seeking clarity of certain phrases or terms under Category 5 - Part 2 of the Wassenaar Arrangement List of Dual-Use Goods and Technologies (WA dual-use goods list). Category 5 Part 2 of the WA dual-use goods list contains items/software or technology pertaining to information security. This list can be found here.

Areas where more clarity is sought by the industry, to be able to classify the items/software/technology with more accuracy under Category 5 part 2 of the WA dual-use goods list include:

Clarity is needed on the meaning of 'the item must be of potential interest to a wide range of individuals and businesses' as given under Note to Cryptography Note of WA dual-use goods list. For example, whether an item or software that incorporates encryption functionality and is of interest to a segment of customers, but not all individuals/businesses, would qualify as being of interest to a wide range of individuals and businesses.
Clarity is needed on the meaning of 'the cryptographic functionality cannot easily be changed by the user' under Cryptography Note. For example, whether turning on and off encryption facility amounts to cryptographic functionality being easily changed by the user.
Whether software that are for civil-use only and incorporate encryption technology only for the purpose of complying with obligations under GDPR to secure personal data of users are included under Category 5 Part 2 of WA dual-use goods list.
Clarity is needed on the meaning of 'primary function' as given under Cat 5A2 a. 1. and 'supports the non-primary function' as given under Cat 5A2 a. 4. of WA dual-use goods list.

Clarity on the above points will help the industry in building a standard approach towards classifying their items/software/technology under Cat 8A502 of the SCOMET list, thus furthering their obligations under India’s export control regime.

NASSCOM is preparing a paper outlining the areas of improvement under SCOMET Category 8A502 which directly corresponds with Category 5 Part 2 of the WA dual-use goods list. This paper aims to explore areas for which the industry seeks clarity and suggest improvement in the licencing regime for the benefit of the industry.

We will continue to engage with MeitY and other relevant government departments on matters relating to encryption export controls. For sending your inputs further and seeking more information on this topic, kindly write to garima@nasscom.in.

#exportcontrol #export #DGFT #meity #encryption

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Garima Prakash

Manager, Public Policy and Government Affairs

Reach out to me for all things policy about e-commerce, international trade, export controls, start-ups and fintech

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