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  • Expansion of the restrictions on “deemed exports,” the passing of technical information to foreigners in the United States that requires a formal export license, is expected to cover a much wider range of university and industry settings.68 Companies that rely on the international members of their R&D teams and university laboratories staffed by foreign graduate students and scholars could find their work significantly hampered by the new restrictions.

  • Expanded or new categories of “sensitive but unclassified” information could restrict publication or other forms of dissemination. The new rules have been proposed or implemented even though many of the lists of what is to be controlled are sufficiently vague or obsolete that it could be difficult to ascertain compliance.69 The result could be to force researchers to err on the side of caution and thus substantially impede the flow of scientific information.

Both approaches could undermine the protections for fundamental research established in National Security Decision Directive 189 (NSDD-189), the Reagan Administration’s 1985 executive order declaring that publicly funded research, such as that conducted in universities and laboratories, should “to the maximum extent possible” be unrestricted.70 Where restriction is considered necessary, the control mechanism should be formal classification: “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. statutes.” The NSDD-189 policy remains in force and has been reaffirmed by senior officials of the current administration, but it appears to be at odds with other policy developments and some recent practices.

68

In 2000, Congress mandated annual reports by the Office of Inspector General (IG) on the transfer of militarily sensitive technology to countries and entities of concern; the 2004 reports focused on deemed exports. The individual agency IG reports and a joint interagency report concluded that enforcement of deemed-export regulations had been ineffective; most of the agency reports recommended particular regulatory remedies.

69

Center for Strategic and International Studies. Security Controls on Scientific Information and the Conduct of Scientific Research. Washington, DC: CSIS, June 2005.

70

Fundamental research is defined as “basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.” National Security Decision Directive 189, September 21, 1985. Available at: http://www.aau.edu/research/ITAR-NSDD189.html.



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