January 13, 2009 Advisory Opinion on the Application of EAR to Grid and Cloud Computing Services

Citation
Bureau of Industry and Security, Advisory Opinion on the Application of EAR to Grid and Cloud Computing Services (Jan. 13, 2009) (n_cloud_grid_computing.pdf full-text).

Overview
This Advisory Opinion considered whether the provision, as opposed to use, of cloud computing services would be subject to export control. The Advisory Opinion distinguishes between providers that only sell computational capacity from those that both sell capacity and give users assistance in using it.

The Advisory Opinion states, among other things, that

"[t]he service of providing computational capacity would not be subject to the EAR as the service provider is not shipping or transmitting any commodity, software or technology to the user."

However, the Advisory Opinion also states that if a service provider furnishes software, technical data, or technical assistance "that is not publicly available in order to give the user[s] knowledge on how to access and use the computational capacity provided by grid or cloud computing, then that technology would be subject to the EAR."