Science and Security in a Post 9/11 World A Report Based on Regional Discussions Between the Science and Security Communities (2007) / Chapter Skim
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II. Policies for Openness and Information Control
II. Policies for Openness and Information Control
Pages 27-48
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From page 27... ...
export control (including so-called deemed exports -- i.e., access by non-U.S. citizens to information and equipment while in the United States)
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From page 28... ...
The resulting report, Scientific Communication and National Security, also known as the "Corson Report" after its chair, Dale Corson, President Emeritus of Cornell University, concluded that, while there "has been a significant transfer of U.S. technology to the Soviet Union, the transfer has occurred through many routes with universities and open scientific communication of fundamental research being a minor contributor."12 In response to the Corson Report and other concerns about the effect of government restrictions on the free flow of scientific information, NSDD189 was issued by President Ronald Reagan to set forth official national security policy for the guidance of the defense, intelligence, and foreign policy establishments of the U.S.
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Fundamental research is defined as follows: "'Fundamental research' means 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." II. BACKGROUND The acquisition of advanced technology from the United States by Eastern Bloc nations for the purpose of enhancing their military capabilities poses a significant threat to our national security.
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2006. Remarks made at the Committee on a New GovernmentUniversity Partnership for Science and Security Northeast Regional Meeting at Massachusetts Institute of Technology.
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Experience shows that vague criteria of this kind generate deep uncertainties among both scientists and officials responsible for enforcing regulations. The inevitable effect is to stifle scientific creativity and to weaken national security.17 The directive does not assert that the open dissemination of unclassified research is without risk.
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From page 32... ...
" and thereby to require restrictions on publication and sharing. In addition, they cited concerns about moves to increase the scope of "deemed export controls," in the context of research conducted by foreign nationals in the United States (see further discussion below)
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Hennessy, 2006. Remarks made to the Committee on a New GovernmentUniversity Partnership for Science and Security Western Regional Meeting at Stanford University.
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. The problem for universities is that federal agencies sometimes impose restrictions on publications or foreign nationals in their research contracts with universities when the research complies with the requirements of NSDD-189.
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Recommendation 2: Federal funding agencies should make clear to industrial awardees that the restrictive publication and foreign national clauses placed in government awards that would not apply to universities should not be passed down to university subawardees conducting fundamental research. In cases where the content of the subaward is known in advance, government contracting officers should include the appropriate provision in the original award.
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2006. Remarks made at the Committee on a New GovernmentUniversity Partnership for Science and Security Northeast Regional Meeting at Massachusetts Institute of Technology.
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Research administrators attending the committee's regional meetings described the difficulty of anticipating and implementing the requirements for SBU information and recommended that SBU should be largely (if not fully) eliminated.
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information, including homeland security information, law enforcement information, and terrorism information, procedures and standards for designating, marking, and handling SBU information must be standardized across the Federal Government."29 At the committee's Georgia Tech meeting, a DHS official informed the committee of the difficulty in trying to work through the various definitions, categories, and policies for designating, marking, and handling SBU. An ongoing government review of the use of SBU will be reported to the Director of National Intelligence, who is expected to present recommendations on standardized SBU procedures for the President's approval in 2007.
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From page 39... ...
I think the real problem here though is one of consistency.31 A survey of 20 institutions in 2003-2004 conducted under the auspices of the Association of American Universities and the Council on Governmental Relations found 138 instances of attempts by the government to restrict publication of data or foreign national participation in research. Most of these restrictions showed up with the inclusion of the Defense Federal Acquisition Regulation Supplement (DFARS)
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From page 40... ...
In addition to these export controls, "deemed exports" refer to the transfer of controlled information to a foreign national within the United States, such as a foreign scientist working in a university laboratory.35 33 The Commerce Control List can be found at www.access.gpo.gov/bis/index.html. 34 The Munitions Control List can be found at www.access.gpo.gov/nara/cfr/waisidx_01/22cfr121_o1.html.
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From page 41... ...
According to Sue Eckert, Senior Fellow at the Watson Institute for International Affairs at Brown University and former Assistant Secretary of Commerce for Export Administration, approximately one thousand deemed export licenses are requested every year and only one percent are denied.37 Under the National Defense Authorization Act (NDAA) for Fiscal Year 2000, the IGs of the Departments of Commerce, Defense, Energy, and State, in consultation with the Directors of the CIA and FBI, are required to conduct an eight-year assessment of the adequacy of current export controls and counterintelligence measures to prevent the acquisition of sensitive U.S.
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From page 42... ...
The Inspector General's report contains only a passing reference to NSDD-189, and that discussion deals only with the results of fundamental research; it makes no mention of the Directive's parallel discussion of the conduct of such research. Perhaps for this reason, the IG report does not address the apparent inconsistency between its recommendation to expand deemed export controls and NSDD-189's direction that "no restrictions may be placed upon the conduct … of [unclassified]
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From page 43... ...
officials engaged in public meetings and onsite campus visits.39 After many long discussions with the university community, site visits to a number of willing host institutions, and the National Science and Technology Council's formation of a task force on deemed exports (co-chaired by DOD and DOE) , the Department of Commerce published a request for comments in the Federal Register on the IG's proposed changes.
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From page 44... ...
The proposed rule would add an additional clause to DOD contracts that may involve export-controlled information or technologies and would mandate compliance plans that would include "unique badging requirements for foreign nationals and foreign persons and segregated work areas for export-controlled information and technology."41 The university community objected to the proposal, with many noting that the proposed rule went beyond the current requirements in export control regulations and failed to acknowledge the fundamental research exclusion. Following much discussion with academic and industry groups, in 2006 DOD issued a new proposed rule.
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From page 45... ...
A Congressional Research Service report summarized the problems: …members of the academic community cite problems administering use controls, including ambiguity about identifying which equipment or material in university laboratories is subject to export controls; discrimination on the basis of nationality; difficulty in controlling access of students and researchers in university laboratories; time required to obtain licenses and inflexibility in obtaining licenses; modest security benefits; slowing or preventing important discoveries due to licensing delays; loss of research talent if students and researchers study in other countries; and reduction in research at the leading edge of science.43 On the other hand, those in the intelligence and security communities are committed to identifying and controlling threats within our borders -- thus, the tension. At the inaugural meeting of the committee, Michelle Van Cleave, Office of the National 42 See proposed modifications at www.acq.osd.mil/dpap/dars/dfars/changenotice/.
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Statements by law enforcement and federal officials that export controls are not an effective way to address national security threats reinforced this perception.46 As stated by DHS Assistant Secretary for Policy Stewart 44 Michelle Van Cleave.
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Consequently, the committee makes the following recommendation: Recommendation 4: In view of the growing globalization of technology and science, the Departments of Commerce and State should conduct regular government-wide reviews of export control policy with special emphasis on streamlining, removal of outdated items, and updating the Commerce Control List and the U.S. Munitions List to reflect current status in technology and science and to identify truly unique and military critical technologies unavailable elsewhere.
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From page 48... ...
As Michelle Van Cleave, National Counterintelligence Executive, Office of National Counterintelligence, warned the committee, "…you can't so lock down this country, our institutions, and our people to protect against all threats at all times. If we tried to do that, we would become a society that we wouldn't want to be."50 50 Michelle Van Cleave.
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