Scientific Communication and National Security (1982) / Chapter Skim
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3 The Current Control System
3 The Current Control System
Pages 27-38
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From page 27... ...
has the authority to make an initial determination that certain information requires protection against unauthorized disclosure and to designate tin addition, some particular categories of information are or can be ~ 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 ty)
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From page 28... ...
Information is to be classified only if, at the least, unauthorized disclosure could be expected to damage national security. m e 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 "basic scientific research information not clearly related to the national security" (Exec.
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From page 29... ...
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.
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From page 30... ...
me 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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From page 31... ...
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 technoloov but on design and manufacturing know-how.
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From page 32... ...
else I, 1-l-^n 1nclucle~ an expansive uellul~lo 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)
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From page 33... ...
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.
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From page 34... ...
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.~° 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.
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From page 35... ...
2 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. 3 me proposal would be a significant extension of the current export control system, because it would serve to restrict even domestic publication of unclassified dated 4 U.S.
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From page 36... ...
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.~5 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.
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From page 37... ...
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.
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From page 38... ...
The Department of State, acting with advice from the Committee on Exchanges (COMEX) , evaluates visitors from Communist countries under exchange programs.
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