DEVELOPMENTS CONCERNING SECRECY IN UNIVERSITY

RESEARCH

Dave BroomeDave Broome

Sr. Associate General CounselSr. Associate General Counsel

NC State UniversityNC State University

A Brief History of Publication Controls/Fundamental Research

February 27, 1981February 27, 1981

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

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

September 30, 1982 September 30, 1982

National Academy of Sciences Study National Academy of Sciences Study Report: Report: Scientific Communication Scientific Communication

and National Securityand 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 September 21, 1985

National Security Decision National Security Decision Directive (NSDD) 189, The White Directive (NSDD) 189, The White

HouseHouse

• 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 November 1, 2001

Condoleeza Rice, The White HouseCondoleeza Rice, The White House

• NSDD 189 remains in effect and will be followed…

However….

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

Recent NAS Conference: Scientific Openness and National Security (January 2003)

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

Issues Raised by Albright

Advances in biological research aimed at Advances in biological research aimed at understanding disease can be turned against usunderstanding disease can be turned against us

Little needed infrastructureLittle needed infrastructure Widely available expertise, and Widely available expertise, and Devastating consequencesDevastating consequences

Exacerbated by recent events (Anthrax attacks, Exacerbated by recent events (Anthrax attacks, paper on synthesis of polio virus, Congressional paper on synthesis of polio virus, Congressional interest, etc.)interest, etc.)

The public reasonably expects its governments to The public reasonably expects its governments to take reasonable steps to reduce the risk of take reasonable steps to reduce the risk of bioterrorismbioterrorism

Issues Raised by Albright Biological research is not controllable by U.S. Biological research is not controllable by U.S.

• Heavily internationalized; Independent Commercial Heavily internationalized; Independent Commercial SectorSector

Science community lacks articulated and defensible Science community lacks articulated and defensible criteria for deciding…criteria for deciding…• What sort of work is “inappropriate research” or What sort of work is “inappropriate research” or

inappropriate for open publicationinappropriate for open publication• How to handle unexpected and potentially dangerous How to handle unexpected and potentially dangerous

results from “benign” projectsresults from “benign” projects Creates “vacuum”Creates “vacuum”

• Public will look for a coherent policy and how a Public will look for a coherent policy and how a particular event fits in that policyparticular event fits in that policy

• The absence of a community-accepted policy invites The absence of a community-accepted policy invites political action (Probably onerous & ineffective)political action (Probably onerous & ineffective)

Albright Recommendations

Scientific community should develop criteria for Scientific community should develop criteria for deciding what is “good” research and what is deciding what is “good” research and what is “bad”; public debate“bad”; public debate

Develop process for assessing the “hard” cases Develop process for assessing the “hard” cases and for handling unexpected research resultsand for handling unexpected research results

Processes generally like those created for Processes generally like those created for recombinant DNA research may be a modelrecombinant DNA research may be a model

This issue will not go away, and action is needed This issue will not go away, and action is needed quicklyquickly

Export Controls; ITAR

ITAR - State Department (w/ DOD ITAR - State Department (w/ DOD advice)advice) United States Munitions List United States Munitions List

(8-9 pages)(8-9 pages) Basic concept--items Basic concept--items

developed specifically for developed specifically for military usemilitary use

Export Controls; EAR

EAR – Commerce EAR – Commerce DepartmentDepartment Commerce Control ListCommerce Control List ““Dual Use” TechnologiesDual Use” Technologies 175 pages175 pages

Technical Information; Definitions

ITARITAR ““technical data”technical data”

““information” “required information” “required for the design, for the design, development, development, manufacture … manufacture … testing … or testing … or modification of a modification of a defense article.”defense article.”

EAREAR ““technology”technology”

““specific information specific information necessary for the necessary for the development, development, production or use of production or use of a product.”a product.”

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

ITARITAR

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

EAREAR ““Release of Release of

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

Foreign “National” or “Person”

Consistent definition under Consistent definition under both EAR and ITARboth EAR and ITAR

Not a U.S. citizenNot a U.S. citizen Not a permanent resident Not a permanent resident

alienalien Has not actually been Has not actually been

granted asylum granted asylum statusstatus

Fundamental Research

ITARITAR Definition of technical Definition of technical

data does not include data does not include information in the information in the public domain.public domain.

Public domain Public domain includes information includes information resulting from resulting from university university fundamental research.fundamental research.

EAREARTechnology that Technology that arises during or arises during or results from results from university university fundamental fundamental research is “not research is “not

subject to the EAR.”subject to the EAR.”

Fundamental Research

ITARITAR““Fundamental research Fundamental research is defined to mean …” is defined to mean …”

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

Definition

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

Free publication of results is part of definition Free publication of results is part of definition

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

““University research will University research will notnot be considered be considered fundamental research if (i) the university or its fundamental research if (i) the university or its researchers accept other restrictions on researchers accept other restrictions on publication of scientific and technical information publication of scientific and technical information resulting from the project or activity, or (ii) the resulting from the project or activity, or (ii) the research is funded by the U.S. Government and research is funded by the U.S. Government and specific access and dissemination controls specific access and dissemination controls protecting information resulting from the protecting information resulting from the research are applicable.” research are applicable.”

Under ITAR--Right to Publish Critical

Fundamental Research EAR, National Security Controls

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

Fundamental Research EAR, National Security Controls

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

Fundamental Research EAR, National Security Controls

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

Fundamental Research EAR, National Security Controls

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

Fundamental Research EAR, National Security Controls

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

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