The strength of American science requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.
—President Ronald Reagan, National Security Decision Directive 189, 1985
Since the Cold War, the U.S. government has placed controls on the physical export of certain manufactured items, software, biological agents, and technical information (technology) that could be of military use to an adversary. Many of the controlled items or technologies are considered “dual use,” having both military and nonmilitary utility (e.g., a high-speed computer). The government also restricts the sharing of controlled technology with non-U.S. persons1 within the United States, as such sharing is “deemed” to be an export (or in some cases, a “defense service”). The primary controls fall under either the jurisdiction of the Department of State, which administers the International Traffic in Arms Regulations (ITAR), or the Department of Commerce, which administers the Export Administration Regulations (EAR). 2 Each agency maintains extensive lists of controlled items and the countries to which specific controls may apply (the U.S. Munitions List [USML] or Commerce Control List [CCL], respectively). And each has procedures for obtaining licenses to permit a specific export. The United States also belongs to several multilateral international arrangements that coordinate control lists among U.S. allies.
1A non-U.S. person is any individual who is not a U.S. citizen; or who is not a U.S. permanent resident alien (“green card” holder); or who is not a protected individual (e.g., refugees, or have political asylum). If the individual is not a U.S. person, when applying the “deemed export” rules the EAR looks at the person’s most recent citizenship or permanent residence, whereas the ITAR looks at the person’s country of origin (i.e., country of birth) and all current citizenships. See Export Administration Regulations, 15 CFR §772 (2012); International Traffic in Arms Regulations, 22 CFR §120.15 (2011); and University of Pittsburgh Office of Research, “U.S. Person vs. Foreign Person,” available at: http://www.research.pitt.edu/exco-us-person-vs-foreign-person.
2Other agencies, such as the Department of Energy and the Office of Foreign Asset Control at the Treasury Department also affect universities, but will not be addressed in this report.
While export controls primarily affect commercial transactions, they apply to all U.S. persons and institutions, including research universities. Even during the height of the Cold War, it was recognized that the application of export controls to university research could cause significant harm to U.S. progress in science and engineering by impeding the free flow of ideas and information. In other words, export controls on research activities would result in net harm to national security. Following a landmark study, Scientific Communication and National Security,3 President Ronald Reagan issued, in 1985, National Security Decision Directive 189 (NSDD-189), which established the principle that “to the maximum extent possible, the products of fundamental research remain unrestricted.”4 NSDD-189 further states that, in specific cases where controls are necessary for national security, the means of control should be classification. The directive remains in effect5 and has been explicitly reaffirmed on several occasions, notably shortly after the attacks of 9/11 by National Security Advisor Condoleezza Rice. More recently, the directive has been reaffirmed by Secretary of Defense Ashton Carter (then serving as undersecretary of defense).6
Both ITAR and EAR contain provisions that recognize the so-called Fundamental Research Exclusion, for basic or applied research that is or will be openly published (e.g., is not proprietary).
Export regulations also provide specific exclusions for technology disclosed in the context of university courses. These exclusions are of paramount importance to research universities. But their application has never been straightforward and may conflict with the spirit of President Reagan’s NSDD-189, that “no restrictions may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification, except as provided in applicable U.S. statues.” The fundamental research exclusion is generally applied
3Institute of Medicine, National Academy of Sciences, and National Academy of Engineering, Scientific Communication and National Security (Washington, DC: The National Academies Press, 1982).
4National Security Decision Directive 189 (NSDD-189): National Policy on the Transfer of Scientific, Technical and Engineering Information (September 21, 1985).
5For further discussion of NSDD-189 and export controls, see National Research Council, Science and Security in a Post 9/11 World: A Report Based on Regional Discussions Between the Science and Security Communities (Washington, DC: The National Academies Press, 2007): 27–28.
6See, e.g., Condoleezza Rice, Assistant to the President for National Security Affairs, to Harold Brown, Co-Chairman, Center for Strategic & International Studies (November 1, 2001), available at: https://www.aau.edu/WorkArea/DownloadAsset.aspx?id=1580; John J. Young, Jr., Undersecretary of Defense (June 26, 2008) Memorandum for Secretaries of the Military Departments, available at https://www.fas.org/sgp/othergov/dod/atl062608.pdf; and Ashton B. Carter, Undersecretary of Defense (May 24, 2010) Memorandum for Secretaries of the Military Departments, available at: https://www.aau.edu/WorkArea/DownloadAsset.aspx?id=10846.
to the “results” of fundamental research, but not to the conduct of research (or the tools used to conduct it).
Beyond university concerns, there is a broad consensus in government and industry that the current export control regime is broken. The National Research Council report Beyond “Fortress America”: National Security Controls on Science and Technology in a Globalized World, for instance, concluded that “export controls and visa regulations that were crafted to meet conditions the United States faced over five decades ago now quietly undermine our national security and our national economic well-being.”7 An earlier report to the secretary of commerce reached similar conclusions regarding the deemed export provision and the EAR.8 Over the years, numerous federal officials, including former Secretary of Defense Robert Gates and several members of Congress, have argued for major changes, as have leaders of industry and industrial associations.9
In response, the White House launched the Export Control Reform Initiative in 2009 as an interagency process to clarify, simplify, and better coordinate the control regimes. The initiative includes moving as many items as appropriate from the more stringently regulated USML to the CCL and using clearer descriptions of controlled items. This very commendable effort has indeed provided some significant improvements, although the impact on areas of interest to research universities has been modest.
Recently proposed rules to harmonize the Fundamental Research Exclusions in ITAR and EAR could be a notable improvement for research universities—or a detriment—depending on the text of the final rule. For example, as of this writing, the proposed modifications to ITAR regarding prepublication review would completely undermine the Fundamental Research Exclusion. The export control reform initiative is limited to regulatory and administrative changes that are consistent with current statutes. Furthermore, the interagency process for new rule making is laborious and time consuming, often involving nearly a dozen agencies, any one of which can veto a proposed simplification.
Nature of Concern
While universities recognize their obligations to adhere to export control regulations, they are concerned that the current regime is unnecessarily burdensome and even counterproductive to national security objectives. Export controls have impeded university research in areas such as integrated circuits, material
7National Research Council, Beyond “Fortress America”: National Security Controls on Science and Technology in a Globalized World (Washington, DC: The National Academies Press, 2009), p. 1.
8U.S. Department of Commerce, The Deemed Export Rule in the Era of Globalization, 2007.
9See, e.g., M. B. Wallerstein, “Losing Controls, How U.S. Export Restrictions Jeopardize National Security and Harm Competitiveness,” Foreign Affairs, vol. 88, no. 6 (2009): 10ff.
sciences, advanced optics, encryption, earth observation, infectious disease, and space research.10 Deemed export regulations have been particularly difficult for universities, which strive to provide fully open campuses and typically have large numbers of international students and visitors. The negative effects have become even more pronounced over the past several decades, as both research and education become more and more globally interconnected, university campuses are increasingly international, communication via the Internet is instant and worldwide, and the United States is no longer a leader across the spectrum of research areas.
The current U.S. government interpretation of the Fundamental Research Exclusion does not encompass either the tools and instrumentation used to conduct the research or the components used to construct an advanced research apparatus. A major research university may have 100,000 or more pieces of instrumentation, and acquires many thousands of new items every year, some of which may be subject to control. At present, each university often must make its own assessment of whether a given instrument, component, software package (e.g., an integrated circuit design tool kit, a fast oscilloscope, an infrared sensor, or certain carbon nanotubes), or its accompanying technology (e.g., detailed specifications, operations, and repair manuals) is controlled by the USML or CCL. Depending on the control, the university has to choose between preventing some or all international graduate students or postdoctoral scholars from using the item in a campus laboratory, applying for a government license to allow the item’s use in campus research, or settling for an inferior alternative item. All of these affect the pace and/or quality of the research. Sending any controlled instruments or fabricated equipment to international collaborators often requires an export license (even if the equipment originated overseas and is merely being returned). Most universities employ trained export control officers and/or specialist attorneys to discharge these duties and often must consult outside counsel for expert opinions. Universities must conduct continual outreach and training for faculty and research staff, some of whom may nevertheless remain unaware of possible restrictions on research conduct. In addition, contracting officers must be careful to structure the terms of all sponsored research agreements to meet the specific requirements of the Fundamental Research Exclusion.
More important than the administrative burden is the chilling atmosphere that surrounds research areas with significant controls, such as space research. At best, research may be hindered by lengthy licensing procedures or attempts to work around controlled areas. In other cases, researchers, and sometimes their university administrations, have chosen to forgo research projects altogether ra-
10See, e.g., National Research Council, Science and Security in a Post 9/11 World: A Report Based on Regional Discussions Between the Science and Security Communities (Washington, DC: The National Academies Press, 2007); and National Research Council, Beyond “Fortress America”: National Security Controls on Science and Technology in a Globalized World (Washington, DC: The National Academies Press, 2009).
ther than cope with the complexities and delays associated with licensing. While difficult to document, any such abandoned research would seem to be contrary to national interests. Potentially fruitful interactions between research universities and industry or national laboratories are often particularly problematic because the latter are not covered by the Fundamental Research Exclusion.
Numerous studies have reached the conclusion that our export control regime is broken and requires a complete overhaul.11 The Export Control Reform Initiative has been a valiant attempt to address some of the current shortcomings via regulatory changes, such as harmonization and clarification of control lists that do not fundamentally change the control regime specified by statute.
The Department of Commerce’s Bureau of Industry and Security is to be commended for persisting with the reform effort despite numerous challenges. Through the good intentions of, and hard work by, government agencies, important progress has been made. In general, however, these efforts have thus far produced limited improvement and have been especially unsuccessful in addressing long-standing concerns about the effects of export controls, such as the deemed export provisions, on university research.
Since export controls primarily affect commercial or military activities, university concerns often receive secondary consideration. Additional means—beyond public comment or advisory bodies (such as a technical advisory committee to the Department of Commerce)—will need to be utilized if university concerns are to receive appropriate attention during a renewed initiative to reform export controls.”
12.1. The committee recommends that Congress and the Administration support a robust continuation and renewal of the Export Control Reform Initiative. Even under current statutes, the initiative has the potential to make further, marked improvements (e.g., to the regulations, oversight process, and ease of compliance) that would bring significant benefits to national security, to commerce, and to the economy, as well as to federally funded university research. The lessons learned in the initiative over the past 5 years could help
11See, e.g., National Research Council, Science and Security in a Post 9/11 World: A Report Based on Regional Discussions Between the Science and Security Communities (Washington, DC: The National Academies Press, 2007); and National Research Council, Beyond “Fortress America”: National Security Controls on Science and Technology in a Globalized World (Washington, DC: The National Academies Press, 2009).
participants in the process accelerate the rate at which needed regulatory revisions are proposed and adopted.
12.2. The committee recommends that the Export Control Reform Initiative seek university input at all stages of the process. The Research Policy Board proposed in Part 1 of this committee’s report would be an ideal vehicle for providing such input.
12.3. The committee recommends that the Export Control Reform Initiative work closely with universities and other stakeholders to specifically address the deemed export provisions12 and vigorously support the spirit and letter of the fundamental research exclusion.
12As recommended by the report The Deemed Export Rule in the Era of Globalization [U.S. Deemed Export Advisory Committee, The Deemed Export Rule in the Era of Globalization (Washington, DC: U.S. Department of Commerce, 2007)].