Office of the General Counsel

1
The Impact of 9/11 Legislation on Fundamental
Research

• Lauren K. Schoenthaler
• lks_at_stanford.edu
• June 3, 2004
• Committee on Research Public Meeting

2
OVERVIEW

• Since September 11, 2001 Congress has enacted
  several pieces of key anti-terrorism legislation.
• This legislation is affecting Stanford University
  and other academic institutions in the United
  States.
• The potential negative impacts of the legislation
  were recognized early by the Government. . .

3
OVERVIEW

• Our nation today is a science superpower. . .
• We are not, however, a science monopoly, and
• we have much to learn from colleagues elsewhere
  in
• the world. Science thrives on open discourse.
• Measures that inhibit discourse will impede
  progress.
• We cannot limit scientific interactions with
  other
• nations without paying a price.
• John Marburger, Director of the Office of Science
  
• Technology Policy, December 2001.

4
Three Areas of Impact

• International Scholars
• Select Agent Research
• Sensitive, but not classified
  Research

5
I. Impact on International Scholars

• Laws Affecting International Students
  Scholars Access to the United States
• USA Patriot Act of 2001
• Enhanced Border Security Visa Entry Reform
  Act of 2002
• Homeland Security Act of 2002
• These laws collectively defer decisions and
  procedures about how visas are issued to the
  Department of Homeland Security and the State
  Department.

6
I. Impact on International Scholars

• DHS has created the Visa Mantis process
• a coordinated procedure to determine whether
  the travel of certain foreign students and
  businessmen may jeopardize the safeguarding of
  critically sensitive technology and information.
• Mantis applications require scrutinized
  screening procedures including FBI background
  checks.
• Local consular officers determine Mantis status
  based on the Technology Alert List -- which
  contains approximately 200 technologies deemed
  sensitive for national security purposes.
• In 2003, Mantis applications took an average of
  67 days to process.

7
I. Impact on International Scholars

• Burdens on Stanford in particular
• International Student enrollment is down.
• Applications down by approximately15 this
  year.

8
I. Impact on International Students

• Students in U.S.
• Much more difficult to qualify for entry to
  U.S. for the first time.
• Once out of the U.S., students from
  many countries must reapply for visa to reenter
  and there is no way to expedite this process.
  No guarantee that student will return from an
  unexpected trip home or planned break.
• (As at Stanford) foreign applications are down
  across the country highly qualified students
  are going elsewhere.

9
II. Research on Select Agents

• Legislation Affecting Research on Select Agents
• USA Patriot Act of 2001
• Public Health Security Bioterrorism
  Preparedness and Response Act of 2002

10
II. Research on Select Agents

• Select Agents are government-identified
  biological agents or toxins subject to heightened
  possession and use requirements because of the
  security and health risked posed by these agents.
• The concern surrounding Select Agent research is
  that information gleaned about the agent could
  be potentially used either for good (to stop
  disease) or for evil (to spread disease).
• This concept is termed dual use research.

11
II. Research on Select Agents

• Examples of Select Agents include
• Bacillus anthrasis (commonly, anthrax)
• Ebola virus
• Variola major virus (commonly, smallpox)

12
II. Research on Select Agents

• Collectively the anti-terrorism laws make
  possession of select agents both a civil and
  criminal offense unless the possession is
• 1) for bona fide research and
• 2) the agents are properly registered with
  the correct agency (HHS or USDA)
• Consequences of violation
• 1) Civil fines can be up to 250,000 for an
  individual and 500,000 for entity.
• 2) Criminal penalty can be up to 5 years in
  prison

13
II. Research on Selected Agent

• In addition, Restricted Persons Cannot Access
  Selected Agents a Restricted Person is someone
  who
• - is under indictment for a felony
• - has suffered a felony conviction
• - is a fugitive from justice or
• - is an unlawful user of a controlled
  substance or
• - has been adjudicated a mental defective or
  committed to a mental institution or
• - is a foreign national of a Country identified
  by the State Department (currently Cuba, Iran,
  Iraq, Lybia, North Korea, Sudan or Syria) or
• - has been dishonorably discharged.

14
II. Research on Select Agents

• Labs used for research on Select Agents must
  meetstrict security requirements
• - ID badges
• - key code doors changed after departure of
  personnel
• - logs of entry
• The labs are subject to inspection.These
  requirements present an unfunded mandate to the
  University.

15
II. Research on Select Agents

• On March 4, 2004 the Department of Health
  HumanServices created the
• NATIONAL SCIENCE ADVISORY BOARD FOR
  BIOSECURITY
• NSAAB will develop guidelines for Dual Use
  Research, including
• Oversight of dual use materials
• Publication of potentially sensitive research
• Local Review Approval Procedures
• Code of Conduct for lab workers

16
II. Research on Select Agents

• Effects of LegislationDiminishing Interest in
  Research on Select Agents because
• - must undergo background check process
• - there is the potential for severe civil and
  criminal consequences stemming from benign
  administrative errors
• - there is a real concern that results of
  research may not be published due to security
  concerns.

17
III. Sensitive, But Not Classified

• Stanford will not undertake classified research
  all research must be open available for
  dissemination.
• Government has talked of middle category,
  sensitive, but not classified.
• Concern that government might invoke this title
  mid-research.
• Concern that journals may refuse to publish
  information of a sensitive nature.
• In most instances, scholars need to publish to
  advance.

18
STANFORDS RESPONSES

• Faculty Senate issued a resolution raising
  concerns about the Patriot Act.
• ASSU passed resolution in support of proposed
  SAFE Act to curtail Patriot Act.
• Stanfords administration is committed to its
  pre-Patriot Act policy that requires a subpoena
  prior to release of confidential information.
• Stanford has been speaking with other schools
  about these issues and is raising its concern
  with legislators.

19
CONCLUSION

• The government is engaged in a difficult
  balancing act of vitally important competing
  interests
• Protection against domestic terrorism
• Open access to information an exchange of
  ideas
• Yet very real concern that Marburgers
  predictionwill come to pass U.S.s scientific
  preeminence is at risk unless we maintain free
  and open discourse across borders, and preserve
  the ability to disseminate appropriate scholarly
  findings.