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3
THE CURRENT CONTROL SYSTEM

There are five major instruments that the federal government can use to restrict scientific communication in the interest of national security. First, some communications are subject to the system for classifying and safeguarding information pertaining to national security. Second, communications with foreign nationals are subject to export controls under a variety of statutes. Third, scientific communications can be restricted through the legal instrument defining the obligations of recipients of federal funds. Fourth, communications can be restricted by voluntary agreement. Finally, communications with foreign nationals can be inhibited indirectly by limiting both foreigners’ access to the United States and their activities while in this country. This chapter provides a brief overview of these control instruments.

CLASSIFICATION OF INFORMATION

Information can be classified for national security purposes under a program defined by executive order.1 President Reagan has recently issued an executive order that, in broad outline, maintains the system established by earlier orders dating back to President Eisenhower (Exec. Order No. 12356, 47 Fed. Reg. 14874 (1982)).

The order states that a limited group of government officials (estimated by the White House at about 7,000 worldwide) has the authority to make an initial determination that certain information requires protection against unauthorized disclosure and to designate

1  

In addition, some particular categories of information are or can be classified by virtue of certain statutes. The Atomic Energy Act provides that information related to nuclear weapons and nuclear power is classified as soon as it comes into existence without the need for any governmental action (42 U.S.C. Section 2014(y), 2162). The Invention Secrecy Act allows the Commissioner of Patents to keep a patent application secret and to withhold the grant of a patent for national security reasons (35 U.S.C. Section 181).



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Scientific Communication and National Security 3 THE CURRENT CONTROL SYSTEM There are five major instruments that the federal government can use to restrict scientific communication in the interest of national security. First, some communications are subject to the system for classifying and safeguarding information pertaining to national security. Second, communications with foreign nationals are subject to export controls under a variety of statutes. Third, scientific communications can be restricted through the legal instrument defining the obligations of recipients of federal funds. Fourth, communications can be restricted by voluntary agreement. Finally, communications with foreign nationals can be inhibited indirectly by limiting both foreigners’ access to the United States and their activities while in this country. This chapter provides a brief overview of these control instruments. CLASSIFICATION OF INFORMATION Information can be classified for national security purposes under a program defined by executive order.1 President Reagan has recently issued an executive order that, in broad outline, maintains the system established by earlier orders dating back to President Eisenhower (Exec. Order No. 12356, 47 Fed. Reg. 14874 (1982)). The order states that a limited group of government officials (estimated by the White House at about 7,000 worldwide) has the authority to make an initial determination that certain information requires protection against unauthorized disclosure and to designate 1   In addition, some particular categories of information are or can be classified by virtue of certain statutes. The Atomic Energy Act provides that information related to nuclear weapons and nuclear power is classified as soon as it comes into existence without the need for any governmental action (42 U.S.C. Section 2014(y), 2162). The Invention Secrecy Act allows the Commissioner of Patents to keep a patent application secret and to withhold the grant of a patent for national security reasons (35 U.S.C. Section 181).

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Scientific Communication and National Security the level of protection.2 (Other officials who reproduce or extract classified information must apply the same classification that was in the original source material.) The system provides that such information may be designated as either top secret, secret, or confidential. Information is to be classified only if, at the least, unauthorized disclosure could be expected to damage national security. The categories of information eligible for classification include “scientific, technological, or economic matters relating to the national security” and “cryptology,” but there is a specific exemption for “[b]asic scientific research information not clearly related to the national security” (Exec. Order No. 12356, 47 Fed. Reg. 14877 (1982)). The government must have some preexisting connection with the information in order to classify it. Although the Reagan order deleted a provision in the previous order prohibiting the classification of research information that was not itself the fruit of access to classified information until the government had acquired a proprietary interest, the information subject to classification is still defined to include only that information that is “owned by, produced by or for, or is under the control of the United States Government” (Exec. Order No. 12356, 47 Fed. Reg. 14883 (1982)). The safeguarding requirement, which applies only to employees, contractors, licensees, or grantees, suggests the limits of governmental power. A person is eligible for access to classified information only upon a determination both that the individual is trustworthy—a status that is customarily demonstrated by a security clearance at an appropriate level—and that access is essential to the accomplishment of lawful and authorized government activities. Each agency is required to establish a system to assure adequate protection of classified information, and a variety of statutes impose stringent penalties for wrongful behavior in connection with the information. Classification is the most stringent of the five control systems because it serves to control all access to the information. The other systems of control are directed at communications with foreign nationals and, in some cases, only at communication through publication. EXPORT CONTROLS The chief controls on the export of technical data arise under the Export Administration Act (EAA) (50 U.S.C. App. Section 2401 et seq.) and the Arms Export Control Act (22 U.S.C. Section 2778).3 The EAA, 2   The order requires “an employee, contractor, licensee, or grantee” who originates information that is believed to require classification to safeguard the information pending a classification determination by an authorized official. 3   Other control systems may be important in particular situations. For example, regulations administered by the Nuclear Regulatory Commission or the Department of Energy govern the export of technology relating to nuclear equipment and materials.

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Scientific Communication and National Security which governs the export of articles or information with both military and civilian applications, is implemented by the Department of Commerce through a comprehensive set of regulations—the Export Administration Regulations (EAR) (15 C.F.R. Section 368.1–399.2). The Arms Export Control Act, which is directed at exports with a unique military function, is implemented by the Department of State through the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Section 121.01–130.33). The Department of Defense and the intelligence community play an important role in the operation of both regulatory systems. Both EAR and ITAR can control the export of information that is unclassified. In order to control the movement of militarily sensitive goods at the international level, the Coordinating Committee (COCOM) for national export controls was established by informal agreement in 1949. COCOM, which is composed of all the NATO countries (except Iceland) and Japan, has provided a forum for the consideration of trade controls on exports to the Warsaw Pact countries and the People’s Republic of China. COCOM is a voluntary organization, and its decisions can only be implemented through the national policies of its members. These national policies, including the attitudes and approach to technical data exports, sometimes differ significantly. COCOM maintains three separate lists itemizing munitions, atomic energy, and dual-use items of particular concern, with the latter constituting the majority of the trade matters considered by the group. The United States has recently made particular efforts to strengthen the international control system and to bring about more uniformity and attention to the transfer of technical data as well as devices, but it has become evident that achieving significant changes will require a long-term, sustained effort. EAA and EAR The EAA authorizes the imposition of export controls for three principal reasons: to further national security, to foster foreign policy, or to protect the domestic economy from a drain of scarce materials (EAA Section 2402). The current debate on control of scientific information has focused on national security. EAR sets out an elaborate system of licenses to control exports or reexports of tangible items to third countries. The stringency of government scrutiny depends on the nature of the article (EAR includes a Commodity Control List, which identifies the characteristics of goods of particular concern), the country of destination, and the end use of the goods. The EAR controls also encompass “technical data” (EAR Part 379). An “export” of such data is deemed to occur whenever there is an actual transmission of data out of the United States, a release in the United

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Scientific Communication and National Security States with the knowledge that the data will be shipped out of the country, or a release abroad4 (EAR Section 379.1(b) (1)). With a few exceptions (e.g., certain exports to Canada), all exports of technical data must be made under either a general license (either a “General License GTDA” or a “General License GTDR”) or a validated license5 (EAR Section 379.2). A general license is analogous to an exemption: The license is extended automatically by force of regulation without either an application or the issuance of a document authorizing the export. A validated license, on the other hand, is a document authorizing a specific export. It is issued by the Office of Export Administration of the Department of Commerce following consideration of an application and letter of explanation from the exporter. The General License GTDA, which is available for data exports to any destination, includes several categories of particular importance to scientists. First, the license is available for “data that have been made generally available to the public” through publications “that may be purchased without restrictions at a nominal cost or obtained without cost or are readily available at libraries open to the public” or through “open conferences” (EAR Section 379.3(a)). Second, the 4   The regulations provide that a “release of technical data” may occur through: (i) Visual inspection by foreign nationals of U.S. equipment and facilities; (ii) Oral exchanges of information in the United States or abroad; and (iii) The application to situations abroad of personal knowledge or technical experience acquired in the United States. [EAR Section 379.1(b)(2)] 5   There are severe penalties for violations of the EAA or any regulation, order, or license issued under it. Certain willful violations are punishable criminally in the case of corporate entities by a fine of as much as $1 million or five times the value of the export involved, whichever is greater, or, in the case of an individual, by fine up to $250,000 or imprisonment for not more than 10 years, or both (EAA Section 2410(b)). Violations, whether or not willful, may also be subject to administrative penalties, including denial of export privileges, seizure and forfeiture of commodities or data, or, in certain cases, a civil penalty of up to $100,000 (EAA, Section 2410(c)). The imposition of administrative penalties is much more common than that of criminal penalties. Through “Project Exodus”—an aggressive effort of the Treasury Department’s Customs Service in coordination with the Commerce Department—and through internal reforms, the overall enforcement activities have recently increased dramatically.

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Scientific Communication and National Security license is available for scientific data, which is defined to mean “information not directly and significantly related to design, production, or utilization in industrial processes” (EAR Section 379.3(b) (1)). Finally, the license is available for “instruction in academic institutions and academic laboratories, excluding information that involves research under contract related directly and significantly to design, production, or utilization in industrial processes” (EAR Section 379.3(b) (2)). These categories serve to limit the burden of the licensing system on most university scientists. The availability of the General License GTDR is determined both by the destination of the export and the nature of the information. In its most significant application, this license permits the transfer of information concerning almost all nonmilitary industrial process technology throughout the free world. In certain cases the exporter must first receive written assurances that the data will not be reexported to certain other destinations (e.g., to the U.S.S.R.). In FY 1981 the Office of Export Administration (OEA) processed more than 71,000 applications for validated licenses for exports, reexports, and the like and denied or returned without action about 9,000. Most of these applications were for the export of goods or data by industrial firms. OEA does on occasion have contact with university scientists, chiefly to ensure that a license is obtained before sensitive technology is transferred through exchanges with restricted-country foreign scholars. Since January 1982, OEA has sent 40 letters to host professors when OEA perceived the possibility of such a transfer. In all cases it is reported that steps were taken to ensure that the visitors would receive only information eligible for a General License GTDA. It appears that there will be increasing emphasis in future years on controlling exports of technical data, with resulting changes in the control system. In part, this increasing emphasis will be the product of a growing concern in the intelligence community about such exports. In part, it will result from certain statutory changes. In 1976 a Defense Science Board Task Force issued a report, commonly called the Bucy report,6 suggesting that the export control system should shift from a focus on products to a focus on critical technology. Basically the Bucy task force argued that, with the exception of technologies of direct military value to potential adversaries, effort to control exports should not focus on the products of technology, but on design and manufacturing know-how. The report recommended that primary emphasis should be placed on (1) arrays of design and manufacturing know-how; (2) “keystone” manufacturing, inspection, and test equipment; and (3) products requiring sophisticated operation, application, or maintenance know-how. The Bucy task force concluded that the preservation of the U.S. lead in critical technological areas was becoming increasingly difficult but could be achieved, first, by denying the exportation of technology 6   Defense Science Board Task Force on Export of U.S. Technology, An Analysis of Export Control of U.S. Technology—A DOD Perspective (Washington, D.C.: GPO, 1976).

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Scientific Communication and National Security when it represented a revolutionary (rather than evolutionary) advance for the receiving nation and, second, by strengthening the export control laws for critical technologies in the United States and in allied nations. This change was accepted by the Department of Defense as official policy in 1977, and in 1979 Congress made it part of the EAA. Congress directed the Secretary of Defense to develop a militarily critical technologies list (the MCTL) and to incorporate this list, after review by the Department of Commerce, into the control system. DOD has worked for several years to develop and revise the MCTL, although it is not publicly available because portions of the list and the associated documentation remain classified. The list covers a broad spectrum of technologies, including many that have substantial or even primarily nonmilitary applications. Although it remains unclear how the MCTL will become part of a workable export scheme, it appears that the current government intention is to develop different and more sophisticated controls on data flows. Arms Export Control Act and ITAR The Arms Export Control Act and its associated regulations, ITAR, control the export of “defense articles and defense services.” The controlled items are designated on the “United States Munitions List” (22 U.S.C. Section 2778). This list is divided into 22 categories, and for the most part the categories refer to military articles (e.g., firearms, tanks and military vehicles, military training equipment). The list also includes a category for “technical data” pertaining to the listed items.7 Like EAR, ITAR includes an expansive definition of the term “export,” including not only shipments from the United States but also disclosure of information during visits abroad by American citizens or disclosure to foreign nationals in the United States (ITAR Section 125.03). Any export of technical data covered by the Munitions List requires prior approval and the issuance of a license by the Office of Munitions Control (OMC) in the Department of State, unless a specific exemption applies. Aside from an exemption for most data that are exported to Canada (ITAR Section 125.12), there are no distinctions among various export destinations. Moreover, the only exemption of significance for most scientific communications is one for data that are in published 7   The definition of “technical data” in the ITAR includes not only data relating to items on the munitions list but also “any technology which advances the state-of-the-art or establishes a new art in an area of significant military applicability in the United States” (ITAR Section 125.01). However, the definition of technical data has been construed to refer only to data “significantly and directly related to specific articles on the Munitions List” so as to avoid interference with constitutionally protected speech (United States v. Edler Industries, Inc., 579 F.2d 516, 521 (9th Cir. 1978)).

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Scientific Communication and National Security form and subject to public dissemination (ITAR Section 125.11). In sum, although the scope of information subject to ITAR is narrower than that covered by EAR, the controls are more far-reaching. As in the case of EAR, both criminal and administrative penalties are available to punish violators (22 U.S.C. Section 2778(c); 22 C.F.R. Part 127). In FY 1981 the OMC processed 35,800 license applications. As in the case of data provided by the Office of Export Administration, most of these applications were for the export of defense hardware items rather than data. OMC officials report that the number of cases involving university activities was “infinitesimal.” Although the exact number could not be determined without a file search, they estimate that university-related applications might number 5 to 10 a year, at most. Whether wider academic awareness of ITAR requirements would multiply the frequency of these applications is not known. Limitations of Export Control Authority The most significant restraint on the government’s use of the export control system to regulate communications is the First Amendment. The Supreme Court has made it clear that the First Amendment protects the right both to speak and to receive information and to communicate not only with other citizens but also with foreigners (see, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762–765 (1972); Lament v. Postmaster General, 381 U.S. 301 (1965)).8 Scientific and technical communications generally appear to be entitled to full First Amendment protection.9 Before-the-fact restrictions on communication, such as those imposed by a licensing system, are the most serious and least tolerable limitations on First Amendment freedoms (see Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)). This stems from the fact that, while subsequent punishment may chill speech and other communication, such prior restraints serve to freeze them entirely. The law thus reflects the view that a free society prefers to punish the few who abuse the rights of speech after they break the law rather than throttle them and all others beforehand. Moreover, even a system of subsequent punishment “requires the highest form of state interest to sustain its validity” (Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979)). Although the First Amendment protections are strong, they do not invalidate all governmental efforts to control the flow of technical data. 8   The Court has not addressed the First Amendment rights of citizens outside our national boundaries. See Haig v. Agee, 453 U.S. 280, 308 (1981) (assuming arguendo that the First Amendment applies). 9   See Ferguson, “Scientific and Technological Expression: A Problem in First Amendment Theory,” Harvard Civil Rights—Civil Liberties Law Review 16 (1981):519.

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Scientific Communication and National Security First, if a speech is an integral part of a larger transaction involving conduct that the government is otherwise empowered to prohibit or regulate, the First Amendment does not give the speech immunity. A federal court considered this category of communication in United States v. Edler (579 F.2d 516 (9th Cir. 1978)) and upheld the application of ITAR on the ground that the President’s authority to regulate arms traffic included “as a necessary incident” the authority to control the flow of information. In order to avoid constitutional difficulties, however, the court construed the ITAR to apply only to technical data that are “significantly and directly related” to specific articles on the Munitions List and, in instances where the information could have both peaceful and military applications, only to situations where the defendant knew or had reason to know that the information was received for a prohibited use (United States v. Edler, at 521). Second, speech pertaining to commercial transactions is entitled only to limited First Amendment protection. Thus, the First Amendment might not prohibit controls on technical data that are disseminated for the purpose of promoting or proposing the sale of controlled items or related technical data. Outside of these two areas the constitutional protection is broad, and this large residual category includes the scientific communications of greatest concern to the university community. Thus it might well be unconstitutional to use ITAR or EAR to bar an American scientist either from informing his or her colleagues, some of whom might be foreign nationals, of the results of an experiment or from publishing the results in a domestic journal.10 Indeed, we understand that the ITAR and EAR are not currently used to restrict domestic publication, and the Office of Legal Counsel of the Justice Department has indicated in recent opinions that the application of the ITAR and EAR outside the two narrow areas might well be unconstitutional in many circumstances. 10   Of course, restrictions on communication in particular cases might still be permissible. The Supreme Court has frequently indicated that protection of the national security could justify a prior restraint on speech. See, e.g., Near v. Minnesota (283 U.S. 697, 716 (1931)) (“No one would question but that a government might prevent [in time of war]…the publication of the sailing dates of transports or the number and location of troops”). But the Supreme Court has never approved such a restraint. Indeed, despite governmental assertions of strong national security interests, the Court explicitly refused to bar the publication of classified materials in the “Pentagon Papers” case (New York Times Co. v. United States, 403 U.S. 713 (1971)). Thus, although a district court recently enjoined the publication of an article that disclosed allegedly restricted technical data concerning the construction of a hydrogen bomb, United States v. Progressive, Inc., (467 F. Supp. 990 (W.D.Wis.)), appeal dismissed, (610 F.2d 819 (7th Cir. 1979)), in most circumstances a national security concern is unlikely to provide an adequate justification for a prior restraint.

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Scientific Communication and National Security CONTRACTUAL RESTRICTIONS The federal government is a major source of funds for university research, and it can include controls on communications as one of the terms of the legal instrument defining the obligations of the funding recipient. Unlike the controls described above, such a system might be seen as voluntary in the sense that a recipient who disagreed with the contractual restrictions could choose not to accept federal support. The Department of Defense is now considering a recommendation by a Defense Science Board Task Force11 to establish a contractually based control mechanism for university research. At the time of contracting, the DOD project manager or contract monitor would negotiate with the university as to whether publications resulting from the research would be subject to restrictions. If so, the researcher would submit any papers to DOD for prepublication review to determine whether publication might result in the release of technical data of a type controlled under ITAR or EAR. The researcher would be allowed to publish if the government failed to act within a designated period (30 to 60 days) after the submission of a paper to it. But if the government concluded that the paper contained sensitive information, the researcher would be required either to modify the paper or to seek a license before publication.12 If DOD decides to adopt this recommendation, it has indicated that it might urge other funding agencies to use a similar approach and might assist other agencies both in developing guidelines for research contracts and in prepublication reviews.13 The proposal would be a significant extension of the current export control system, because it would serve to restrict even domestic publication of unclassified data.14 11   U.S. Department of Defense, Report of the Defense Science Board Task Force on University Responsiveness (Washington, D.C., January 1982). 12   This recommendation may prove unacceptable to some universities. 13   Statement by George P.Millburn, Acting Deputy Under Secretary of Defense for Research and Engineering (Research and Advanced Technology), to a Joint Session of the Science, Research and Technology Subcommittee and the Investigations and Oversight Subcommittee of the House Committee on Science and Technology, 97th Congress, 2d Sess. (March 29, 1982). 14   Because the government is the funder of the research and because the funding recipient will have agreed beforehand to abide by the system of publication controls, the constitutional limitations on the government’s authority under ITAR and EAR do not apply with the same force to the contractual control scheme.

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Scientific Communication and National Security “VOLUNTARY” RESTRICTIONS The government has often found it possible to influence conduct by persuading the private sector to take certain actions voluntarily. Such voluntary controls—controls supported by no legal compulsion—might be applied similarly to restrain the flow of sensitive technical information. In fact, the National Security Agency (NSA) has begun a trial of a voluntary system through agreement with the Public Crypotology Study Group, which was established by the American Council on Education (see Appendix E). Researchers send papers with possible significance to the science of cryptology to NSA for prepublication review simultaneously with submission to a scientific journal. If NSA believes the paper contains sensitive information, an effort is made to negotiate modifications or postponement of publication with the author. To date, approximately 50 papers have been reviewed, and the few concerns raised by NSA were resolved amicably. The system provides that if negotiation is unsuccessful and the author remains dissatisfied, the paper may be submitted to a review panel. CONTROLS ON FOREIGN VISITORS Although control of the admission of aliens to the United States is obviously not a direct restraint on the flow of information, such control can significantly inhibit the flow by restraining both the interaction between domestic and foreign scientists and the observation of domestic equipment, data, and the like by foreigners.15 Such controls might be established through either the visa process or, in the case of many scientific visitors from Eastern Europe, the implementation of particular exchange agreements. Visa Controls The admission of aliens to the United States is governed by the Immigration and Nationality Act (8. U.S.C. Section 1101 et seq). 15   A similar restraint might be achieved by barring travel abroad by U.S. citizens. Although Congress has granted the President the power to restrict international travel by citizens in appropriate cases in the interests of national security, this power has very rarely been exercised (see Haig v. Agee, 97 S.Ct. 2766 (1981)). Moreover, the exercise of the power is subject to constitutional scrutiny (see Haig v. Agee; Kent v. Dulles, 357 U.S. 116 (1958)). Because an effort to control technical information flow by restraining international travel by U.S. citizens has not been attempted or even suggested, the sources and limitations of the government’s authority will not be explored here. Disclosure of technical data by citizens who are abroad may require an export license, depending on the nature of the data and the persons to whom disclosure is made.

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Scientific Communication and National Security Typically, an alien must have a valid passport and must apply for admission and be granted a visa before being allowed to enter the United States. An alien is presumed to be an immigrant, and thus subject to strict admission controls, unless that person can establish that he or she is entitled to nonimmigrant status (8 U.S.C. Section 1184). Although there are widely varying grounds for admission as a nonimmigrant, those most relevant here are admissions: As a temporary visitor on business or pleasure; As a bonafide student pursuing a full course of study at an established institution of learning; As a visitor who is “of distinguished merit and ability” and who is coming temporarily to the United States “to perform services of an exceptional nature requiring such merit and ability”; As a temporary visitor “who is a bonafide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar skill” and who is a participant in certain exchange programs designated by the Secretary of State. (8 U.S.C. Section 1101(15)(B), (F), (H), (J)). There are also numerous categories of aliens who are ineligible for admission (8 U.S.C. Section 1182(a)). For example, an alien may be excluded for various health reasons or for conviction of a crime involving moral turpitude. An alien also is ineligible if the consular officer or the attorney general knows or has reason to believe that the alien seeks to enter the United States “to engage in activities which would…endanger the welfare, safety, or security of the United States” or, under certain circumstances, if the alien is a member or affiliate of certain proscribed organizations. The burden is on the alien to prove eligibility to receive a visa16 (22 C.F.R. Section 41.90). A nonimmigrant may be deported for failing to maintain the nonimmigrant status in which that person was admitted, for failing to comply with the conditions of admission, or for failing to avoid entry into certain of the ineligible categories (8 U.S.C. Section 1251(a)). Judicial scrutiny of a refusal to admit an alien is exceedingly deferential. Control over admission is seen as an essential aspect of sovereignty, and thus the courts have recognized the plenary power of the Congress to make rules governing the matter. Moreover, so long as the Executive Branch acts within the boundaries of power delegated by the Congress, the courts will not interfere. However, the visa system is seldom used to inhibit technical communications, even for some Communist visitors, because of workload considerations and a lack of information about visa applicants and unresolved questions of policy as to whether visas can be denied for reasons of technology transfer. 16   In addition, before issuing a nonimmigrant visa, the State Department may on occasion seek assurances from the host that he or she will seek to prevent the visitor’s access to sensitive technologies at his or her research site.

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Scientific Communication and National Security Exchange Programs Of particular relevance to the Panel is the class of foreign visitors admitted under international exchange programs that focus on science. Several of the exchange programs with the Soviet Union are described in Chapter 2. The Department of State, acting with advice from the Committee on Exchanges (COMEX), evaluates visitors from Communist countries under exchange programs.