Call for Inputs: Export Control rules for encryption items/software/technology (SCOMET Category 8A5 Part 2)

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Call for Inputs: Export Control rules for encryption items/software/technology (SCOMET Category 8A5 Part 2)

Garima Prakash

@GarimaP

September 9, 2021

Public Policy

Information security products and technology are subject to export control restrictions under Category 8A5 Part 2 of India's SCOMET list. Companies routinely incorporate cryptography in software to enable data confidentiality, and therefore, have to assess whether an export licence is needed.

This determination is based on whether the item, software or technology incorporating cryptography can be classified under the scope of the SCOMET list. This classification is made based on the text of the SCOMET list. We understand that there are certain ambiguities in various terms and phrases used in the text of Category 8A5 Part 2 of the SCOMET list, such as:

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.
Clarity is needed on the meaning of primary function as given under Category 8A502 a. 3. and supports the non-primary function as given under Category 85A02 a. 4. of the SCOMET list.

Clarity on the above points will help the industry in building a standard approach towards classifying their items/software/technology under Category 8A5 Part 2 of the SCOMET list, thus furthering their obligations under India’s export control regime.

In this context, we are engaging with companies that have experience in exporting items, software or technology under SCOMET Category 8A5 Part 2. This exercise is expected to help finalise our suggestions to the government on bringing clarity to applicability of export control rules to encryption items. We are seeking information on the following:

With respect to ambiguities highlighted in the earlier paragraphs, do you have specific examples that can explain these ambiguities better? These can be based on a classification challenge that you might have faced earlier, with respect to Category 8A5 Part 2.
Are you aware of guidance available in other jurisdictions on interpretation of the text of Category 5 Part 2 of the Wassenaar Arrangement Dual Use list? (the text of Category 5 Part 2 of the Wassenaar Arrangement Dual Use list is identical to Category 8A5 Part 2 of India's SCOMET list)
Do you have any suggested solutions on how clarity on these ambiguities can be provided?
In addition to the ambiguities highlighted above, are there any other terms/phrases under Category 8A5 Part 2 that require clarification with respect to its language, scope, ordering/structuring or possible editorial changes?

Kindly send your inputs to garima@nasscom.in.

exportcontrol encryption Information Security SCOMET

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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