Space Science and the International Traffic in Arms Regulations: Summary of a Workshop (2008)

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3 Overarching Issues The second, third, and fourth workshop sessions (see Appendix C) each began with and expanded on a panel discussion that drew on a set of case-study summaries of space science community experiences with the imple- mentation of the International Traffic in Arms Regulations (ITAR). The discussions elicited four major themes that were later developed during splinter-group discussions and that are summarized in Chapters 4 and 5. This chapter summarizes several broader themes that spanned the specific topics of the case-study sessions and the splinter groups’ topics. CONTRASTING INSTITUTIONAL PERSPECTIVES An important point that emerged from the discussions was that the federal agencies (especially the Department of State), industry, and universities have different primary charters and perspectives and that everyone needs to understand the genuine differences. For the State Department, the highest priorities clearly are attached to pro- tecting and advancing foreign-policy and national-security interests. Universities, on the other hand, are charged to conduct fundamental research in science and technology. Because of the globalized nature of such research, universities strive to promote full and open exchanges of research information without regard to the nationalities of university personnel or of the members of the broader scientific community. And while industry often does include fundamental research as part of its business, its primary goal is to protect and enhance competitive posi- tion, including proprietary solutions to government and commercial customer requirements. A problem, some workshop participants observed, is that different stakeholders establish institutional policies, decisions, and protocols in relative isolation and thereby affect the conduct and output of space science. Com- munication between the legal (regulatory) communities and technical (scientific) communities is strained when the former view the latter as “just trying to bend the rules” and the latter think that the former “don’t understand what is significant and what is not.” One of the crucial consequences of this lack of mutual understanding, workshop participants argued, is the promulgation of unclear regulations that are implemented in ways that lead to consequences unintended by the regulators, such as restrictions on individuals’ and institutions’ participation in international projects; confusion and inaction; or highly polarized, restrictive positions on the part of government regulators and institutional administrators. 13 

14 SPACE SCIENCE AND THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS FUNDAMENTAL QUESTIONS ABOUT INTERNATIONAL TRAFFIC IN ARMS REGULATIONS Many workshop participants from both the policy and the scientific communities voiced questions about the basis of ITAR. Many argued that ITAR is the wrong export control regime for space research. According to that point of view, there is a divergence between current national-security rules and the existence of an increasingly global economy. Current export-control laws seek to limit interactions with international partners. “The military fights the last war,” but the future strength of the country relies on its intellectual vigor. Thus when the use of ITAR to regulate space exports ignores other significant national goals—such as leadership in space, preeminence of university education and research, international cooperation—it actually compromises serving the one national policy goal (national security) that it seeks to optimize. Some participants suggested that ITAR is a “quasi classification system” but is missing key elements of Department of Defense or other national security systems. Application of ITAR controls is based on the context of the technologic application (satellites) rather than on technologic content even when application is unrelated to armaments. Covering specific implementations of standard practices that are not relevant to arms or other defense articles has the effect of having ITAR exert control over nonthreatening elements of spaceflight hardware, which detracts from the authority of ITAR in other technical areas. There is a degree of conservatism in implementation of the regulations that appears to be meant to satisfy the (unknown future) auditor and thereby to keep things clearly on the safe side of the line. Some participants opined that there is no evident contribution of ITAR to U.S. commercial competitiveness and that there are no evident cases in which ITAR controls of space science activities contributed materially to the management of a national-security threat. One participant summarized that point of view by saying, “ITAR is simply the wrong tool.” GENERIC PROBLEMS AND UNINTENDED CONSEQUENCES Many participants cited a set of common recurring problems with the requirements and implementation of ITAR. Speakers seemed to agree that the consequences of those problems drive the cost and compromise the value of controlled activities and undermine the fundamental intent of the regulations. Some speakers argued that the ITAR controls themselves are often counterproductive and inappropriate. That point of view was based on the idea that placing controls on “everything that flies in space” is too broad an approach. Many spaceflight devices are less technically advanced than their nonspace equivalents, but the former are controlled and the latter are not. Speakers argued that just as ITAR does not seek to control information about the results of fundamental research, so also placing controls on information about instruments built for fundamental research is inappropriate, especially given the integral relationships between research results and the instruments that produce the results. A second generic problem that was cited repeatedly regarding the current implementation of ITAR was lack of clarity. Speakers noted that each licensing decision is based on the merits of a single case and that there is no publically available statement of overall standards that would provide the space science community the insight to make its own determinations as to whether other, potentially comparable cases need to be submitted to the State Department or not. There also appears to be frequent confusion regarding whether an exclusion from ITAR con- trols applies to both the results of fundamental research and the conduct of fundamental research. The idea that some fundamental research activities are free of ITAR controls when they occur at universities but not when they occur in industry or at federal laboratories was viewed as indicating the particular lack of clarity and consistency associated with application of ITAR. OUTLOOK In spite of frequently mentioned misgivings about ITAR as described above, there appeared to be widespread agreement at the workshop that some space hardware and technology are indeed sensitive and that their export could pose a national-security threat. For such hardware and technology, export controls are appropriate. ­Speakers 

OVERARCHING ISSUES 15 often reminded their colleagues that ITAR is a reality to be reckoned with and that one should not expect funda- mental changes in the near term. Some speakers suggested that incremental changes and improvements could be made, for example, by m ­ odifying procedures (see Chapter 5) and by providing more resources at the State Department to administer ITAR. Steps along these lines, which could eliminate some of the ambiguity and burden felt by the regulated community and also improve efficiency in processing applications, appeared to be widely supported and encouraged.  However, a second school of thought among the participants was that ITAR cannot be fixed incrementally and that what is needed instead is a fresh start with a clean-slate approach to develop a regulatory regime that will simultaneously address the full array of policy goals that involve national security, technology transfer, space activities, and university teaching and research. All participants appeared to share the view that such a sweeping, fundamental revision of ITAR is, at best, a long-term prospect. On January 22, 2008, the Bush Administration announced a new export controls directive to reform U.S. defense trade policies and practices, but details were not available when this report went to press. See http://www.state.gov/r/pa/prs/ps/2008/jan/99562.htm.