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

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Summary The United States seeks to protect its security and foreign-policy interests, in part, by actively controlling the export of goods, technologies, and services that are or may be useful for military development in other nations. “Export” is defined not simply as the sending abroad of hardware but also as the communication of related technol- ogy and know-how to foreigners in the United States and overseas. The U.S. government mechanism for controlling dual-use items—items in commerce that have potential military use—is the Export Administration Regulations (EAR) administered by the Department of Commerce; items defined in law as defense articles fall under the jurisdiction of the Department of State and the International Traffic in Arms Regulations (ITAR). Because of the potential military implications of the export of defense articles, the ITAR regime imposes much greater burdens (on both the applicant and the government) than does the EAR regime during the process of applying for, and implementing the provisions of, licenses and technical-assistance agreements. Until the early 1990s export control activity related to all space satellites (commercial and scientific) was handled under ITAR. Between 1992 and 1996 the George H.W. Bush and the Clinton administrations transferred jurisdiction over the licensing of civilian communications satellites to the Commerce Department under EAR. In 1999, however, in response to broad concerns about Chinese attempts to acquire U.S. high technology, the U.S. House of Representatives convened the Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China, also known as the Cox Committee. One of the many consequences of the Cox Committee’s report was Congress’s mandate that jurisdiction over export and licensing of satellites and related equipment and services, irrespective of military utility, be transferred from the Department of Commerce to the State Department and that such equipment and services be covered as defense articles under ITAR. Scientific satellites were explicitly included despite their use for decades in peaceful internationally conducted cooperative scientific research. It is widely recognized that the shift in regulatory regime from EAR to ITAR has had major deleterious effects on international scientific research activities that depend on satellites, spaceflight hardware, and other items that are now controlled by ITAR. Furthermore, contravening U.S. interests in attracting foreign students to U.S. universities, the capture of space technology by ITAR has caused serious problems in the teaching of university space science and engineering classes, virtually all of which include non-U.S. students. U.S. House of Representatives, U.S. National Security and Military/Commercial Concerns with the People’s Republic of China, Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China, U.S. Government Printing Office, January 1999.  

 SPACE SCIENCE AND THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS This report is a summary of a September 2007 workshop in which participants from the space research com- munities and the export-control administration and policy communities came together to discuss problems, effects, and potential solutions regarding the application of ITAR to space science. The principal themes and ideas that emerged from the discussions are summarized below. UNINTENDED CONSEQUENCES OF A NET CAST TOO BROADLY The space science community acknowledges the sensitivity of much hardware and technology related to space activity, but they also argue that controlling “everything that flies in space” casts too broad a net. The current administration has actually recognized the mismatch between the ITAR control regime and the low levels of risk inherent in the bulk of international space science activity. A variety of White House policy statements have been made and regulatory adjustments tried over the years, but the unfortunate net result of such changes has been the introduction of ambiguity and uncertainty. As a result, and because the criminal sanctions for failure to comply with ITAR are personal and great, university officials and researchers tend to err on the side of conservatism in seeking licenses and thus impose on themselves financial, administrative, and time-delay burdens that might not even be necessary. No one in the policy or political community contends that observed deleterious effects on U.S. leadership in scientific research and on U.S. academic excellence in science and engineering were intended by the use of ITAR as the regulatory regime for scientific-satellite exports. Nonetheless, the unintended consequences continue to plague the space community. EFFECTS ON SCIENTIFIC RESEARCH Science, perhaps more than most fields of endeavor, depends on a full and open discussion and exchange of ideas among researchers who are addressing a given problem. If researchers are constrained by security classifica- tion or proprietary interests, communication is necessarily limited. Because most of the results of space science research are placed in the public domain, most space research activity qualifies as “fundamental research,” which is excluded from ITAR controls as long as the research is conducted by “accredited institutions of higher learning.” However, the bulk of government-sponsored fundamental space research at universities is conducted by consortia, including government research laboratories and private companies, and ITAR requires licensing when persons from other countries are involved—and they usually are. Since the dawn of the space age, other nations have invested in developing their own capabilities and have thereby made themselves desirable partners of the United States. Furthermore, many space-based scientific efforts focus on the science of Earth, and so international collaboration is necessary if global perspectives are to be drawn. The costs and delays imposed by ITAR processing requirements, coupled with other nations’ reluctance to be made subject to restrictions derived from U.S. law and regulations, are making the United States less and less desirable as a partner to its foreign collaborators. The implications for continued international collaboration are grave. EFFECTS ON ACADEMIC OPERATIONS Ambiguities about what constitutes fundamental research that can thus be excluded from ITAR controls, about what information can be placed in the public domain, and about what specific kinds of involvement with non-U.S. persons require licensing have led to great uncertainties in the university community about the participation of foreign students and researchers in projects involving potentially controlled hardware or technology. Universities must choose between either going through the burdensome licensing or technical-assistance agreement process to involve their students and researchers from other countries or consciously excluding any non-U.S. nationals from space-related research. The latter approach is injurious to the quality of research and to the educational value inherent in diversity. It is especially damaging when the non-U.S. participants could contribute critical and unique knowledge and skills to a project, as is often the case. According to workshop participants, the same uncertainties are leading some professors to “dumb down” course content rather than risk ITAR violations by discussing their 

SUMMARY  research in the classroom setting. Although they believe that the vitality of education in the U.S. university system depends on its links to state-of-the-art research, many cite fears of breaking the law inadvertently. THE OUTLOOK In the short term, fundamental changes to the law or regulations are unlikely, especially in a political environ- ment in which almost any provisions related to national security are taken as givens and attempts to modify them are viewed as being politically risky, regardless of the potential practical impacts. Over the next year or so, the State Department is committed to incremental improvements in efficiency and to better communication with the space community to clarify and harmonize key definitions and concepts where confusion exists. Similarly, members of the university community are committed to participating actively in that communication to make their actions more effective and to document their problems with ITAR to facilitate favorable change. Over the long term, however, many believe that a clean-slate approach is needed to fix the fundamental dis- connect between ITAR as it is being applied to space science research and the needs of the U.S. space science community as it endeavors to maintain world leadership. The United States has many space-related policy priorities in addition to national security, including space leadership, university excellence, and international partnerships. As emphasized at the workshop, all these national goals need to be considered jointly in the development of a system for controlling the export of space-related hardware and technology that is effective at protecting national security, but that does not inadvertently harm the other policy priorities.