DEVELOPMENTS CONCERNING SECRECY IN UNIVERSITY RESEARCH

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DEVELOPMENTS CONCERNING SECRECY IN UNIVERSITY
RESEARCH

• Dave Broome
• Sr. Associate General Counsel
• NC State University

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A Brief History of Publication Controls/Fundamenta
l 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.

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• 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

4

• 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.

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• November 1, 2001
• Condoleeza Rice, The White House

• NSDD 189 remains in effect and will be followed

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However.

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

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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

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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

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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
• What sort of work is inappropriate research or
  inappropriate for open publication
• How to handle unexpected and potentially
  dangerous results from benign projects
• Creates vacuum
• Public will look for a coherent policy and how a
  particular event fits in that policy
• The absence of a community-accepted policy
  invites political action (Probably onerous
  ineffective)

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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

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Export Controls ITAR

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

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Export Controls EAR

• EAR Commerce Department
• Commerce Control List
• Dual Use Technologies
• 175 pages

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Technical Information Definitions

• ITAR
• technical data
• information required for the design,
  development, manufacture testing or
  modification of a defense article.

• EAR
• technology
• specific information necessary for the
  development, production or use of a product.

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Deemed Export RuleTransfer 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.

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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

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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.

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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
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Fundamental Research
Under ITAR--Right to Publish Critical

• Free publication of results is part of definition

• 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.

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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. 

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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)

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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

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Fundamental Research EAR, National Security
Controls

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

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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.