DEVELOPMENTS CONCERNING SECRECY IN UNIVERSITY RESEARCH

Dave Broome Sr. Associate General Counsel NC State University

A Brief History of Publication Controls/Fundamental Research

February 27, 1981

“Five Presidents’ Letter” to Secretaries of Commerce, State and Defense

“to convey our grave concern about attempts to extend export restrictions to American colleges and universities.”

September 30, 1982

National Academy of Sciences Study Report: Scientific Communication and National Security • Export controls should not apply to unclassified university research.

• No restrictions on publication. Even in “gray” areas, only 60-day notice and comment should apply

September 21, 1985

National Security Decision Directive (NSDD) 189, The White House • National policy that the products of fundamental research remain unrestricted.

• Where control is needed, the mechanism is classification.

• No restriction on conduct or reporting, except classification.

November 1, 2001

Condoleeza Rice, The White House • NSDD 189 remains in effect and will be followed…

However….

 Research Administrators across the U.S. are finding increasing pressure to agree to publication restrictions in federally-funded projects.

Recent NAS Conference: Scientific Openness and National Security

(January 2003)

• Penrose (Parney) C. Albright, PhD • Asst Dir for Homeland and National Security, OSTP • January 9, 2003

Issues Raised by Albright

   Advances in biological research aimed at understanding disease can be turned against us  Little needed infrastructure   Widely available expertise, and Devastating consequences Exacerbated by recent events (Anthrax attacks, paper on synthesis of polio virus, Congressional interest, etc.) The public reasonably expects its governments to take reasonable steps to reduce the risk of bioterrorism

Issues Raised by Albright

   Biological research is not controllable by U.S. • Heavily internationalized; Independent Commercial Sector Science community lacks articulated and defensible criteria for deciding… • • Creates “vacuum” • Public will look for a coherent policy and how a particular event fits in that policy • What sort of work is “inappropriate research” or inappropriate for open publication How to handle unexpected and potentially dangerous results from “benign” projects The absence of a community-accepted policy invites political action (Probably onerous & ineffective)

Albright Recommendations

    Scientific community should develop criteria for deciding what is “good” research and what is “bad”; public debate Develop process for assessing the “hard” cases and for handling unexpected research results Processes generally like those created for recombinant DNA research may be a model This issue will not go away, and action is needed quickly

Export Controls; ITAR

ITAR - State Department (w/ DOD advice)  United States Munitions List (8-9 pages)  Basic concept--items developed specifically for military use

Export Controls; EAR

EAR – Commerce Department

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Commerce Control List

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“Dual Use” Technologies

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175 pages

Technical Information; Definitions ITAR

“technical data”

EAR

“technology” “information” “required for the design, development, manufacture … testing … or modification of a defense article.” “specific information necessary for the development, production or use of a product.”

Deemed Export Rule:

Transfer of technical information about a listed item to a foreign national in the United States IS AN EXPORT.

ITAR

“Export: … disclosing … technical data to a foreign person, whether in the United States or abroad …”

EAR

“Release of technology … subject to the EAR to a foreign national in the United States … is deemed to be an export to the home country or countries of the foreign national.”

Foreign “National” or “Person”

Consistent definition under both EAR and ITAR    Not a U.S. citizen Not a permanent resident alien Has not actually been granted asylum status

Fundamental Research

 

ITAR

Definition of technical data does not include information in the public domain.

Public domain includes information resulting from university fundamental research.

EAR

Technology that arises during or results from university fundamental research is “not subject to the EAR.”

Fundamental Research Definition

ITAR

“Fundamental research is defined to mean …”

EAR

“The intent behind these rules is to identify as ‘fundamental research’ …”

Both ITAR and EAR:

“… basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community …”

Fundamental Research Under ITAR--Right to Publish

  Specific ITAR exclusion where publication controls over research results are accepted:

“University research will not be considered fundamental research if (i) the university or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or (ii) the research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.”

Fundamental Research

EAR, National Security Controls

 734.8(b)(6) The provisions of § 734.11 of this part will apply if a university or its researchers accept specific national security controls … on a research project or activity sponsored by the U.S. Government.

Fundamental Research

EAR, National Security Controls

 § 734.11 (a) If research is funded by the U.S. Government, and specific national security controls are agreed on to protect information resulting from the research, § 734.3(b)(3) of this part will not apply to any export or reexport of such information in violation of such controls. However, any export or reexport of information resulting from the research that is consistent with the specific controls may nonetheless be made under this provision. (emphasis added)

Fundamental Research

EAR, National Security Controls

§ 734.11 (b) Examples of "specific national security controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research…

Fundamental Research

EAR, National Security Controls

Supplement #1 to Part 734, Question E(2): Under § 734.11 of this part, … [a]ny … export …that is consistent with the controls will continue to be eligible for export … under the "fundamental research" rule set forth in violating the EAR…. § 734.8(a) of this part. Thus, if you abide by the specific controls you have agreed to, you need not be concerned about

Fundamental Research

EAR, National Security Controls

  Thus, under EAR, accepting a narrowly prescribed U.S. government prepublication clearance control may not trigger the deemed export rule.

HOWEVER, this result is NOT available if the project is subject to ITAR Regulations.