Commerce and Defense Propose New Regulations for Research Institutions
For more than 50 years the United States has attracted the best minds in the world to study, teach, and work—an influx of talent that has helped the nation become the world’s dominant economic power, driven its military ascendancy, and improved the lives of its citizens. But changing government policies may put that influx at risk, as regulators threaten to clamp down on the freedom of foreign nationals to pursue research and work with cutting-edge technologies in U.S. universities, federal labs, and companies.
Two recent rulemaking announcements, one by the Department of Commerce’s Bureau of Industrial Security (BIS) in March 2005 and a second by the Department of Defense in July 2005, propose placing new restrictions on foreign nationals who “use” or have access to technology deemed sensitive enough to require export control, even for fundamental research purposes. Both actions stem from reports from the Office of Inspector General of the respective agencies who, in reviewing existent regulation, determined that “loopholes” existed that could permit “the unauthorized disclosure of export-controlled information or technology.” In both cases, the proposed changes seek to limit the access of foreign nationals to sensitive technology by requiring either special requirements for badges and access, or special deemed export licenses of institutions providing the sensitive information or technologies.
The announcements triggered much criticism from a broad constituency of interested parties in academia, industry, other federal agencies, and even members of the U.S. Senate. In response to its March announcement of proposed rulemaking, BIS received more than 300 filed comments totaling over 1,100 pages by the June 27, 2005 comment deadline, almost all opposing the proposed rule. Included among those opposing were academic associations like the Association of American Universities and the American Association for the Advancement of Science (CRA also filed comments opposing the rule changes1); industry members like Boeing, Halliburton, and the Information Technology Association of America; federal agencies like the National Science Foundation and the National Institutes of Health; and U.S. Senators Jeff Bingaman (D-NM) and Lamar Alexander (R-TN).2
The agency proposed three specific changes to current rules:
- Evaluate deemed export applications not just on country of citizenship and permanent residence, but on country of birth as well;
- Expand the definition of “use” of controlled technologies to any form of instruction on their operation, including access to manuals and, by a conservative reading, visual access to a machine or source code; and
- Exclude from the fundamental research exemption all research conducted under government sponsorship that is subject, either by regulation or prudential practice, to prepublication review.
In general, those submitting comments opposing the rules (including CRA) made similar points. First, they argued, it is unjust and anti-democratic to judge people on their country of birth. The country-of-birth rule would create the perception that America is hostile toward foreign scientists and students at a time when their presence here is vital to our economy and national security. Worse, it would create castes of citizens so that, for instance, some British citizens would be more equal than others (a British citizen born in Germany would have different rights than a British citizen born in Syria). Industry respondents and comments from the Equal Employment Opportunity Commission also noted that complying with the proposed regulations regarding country of birth would pose logistical and legal problems for employers in the United States and abroad.
Second, critics argued, the rule changes are confusing, especially as they relate to the word “use.” The report from the Department of Commerce’s Inspector General that motivated the proposed change provides a broad enough conception of the word “use” that commentators suggested “even seeing a machine could count as ‘use’” and that the burden of determining when “use” occurs would fall on researchers and their institutions.
Critics also cited the potential costs to researchers, their institutions, and even the Department of Commerce should the rules be accepted. The number of deemed export applications would skyrocket, they said, placing undue burdens and hurdles on institutions. Many cited what they believed was a misunderstanding on the part of the Commerce IG and the BIS of the role of editorial review and how scientific research works. Many also wondered whether the proposed regulations attempt to solve a problem that does not exist to any significant degree.
Lastly, critics of the BIS proposed rule, including the official responses of the National Institutes of Health and the National Science Foundation, noted the important contribution of foreign scientists, engineers, and graduate students to the U.S. economy and national security and raised concerns about the effect of the proposed rule on perceived environment for foreign researchers in the U.S. In particular, the agency critics noted that the proposed rule also appears to violate a still operational Reagan-era National Security Decision Directive (NSDD-189) exempting all unclassified fundamental research from restriction. NSDD-189 indicates that the appropriate method for limiting the dissemination of sensitive fundamental research is to classify it, forbidding any sort of additional “sensitive but unclassified” restriction.
The Department of Defense announcement concerns those institutions performing contract work for the agency, requiring contractors to establish an export control system for potentially covered technologies and requiring badges for foreign-national employees. Comments on the DOD proposed rule are not due until after this issue of CRN goes to press, but many of the same groups who responded to the BIS rulemaking are expected to comment on the DOD rule. Of significant concern to the academic community is what is not included in the DOD rule, and that is any mention of NSDD-189 and the fundamental research exemption. Though the Department has indicated it does not anticipate applying the proposed rules to fundamental research environments, the lack of explicit language exempting fundamental research is troubling to the academic community.
But perhaps more troubling to the academic community is the signal that these announcements, along with post-9/11 tightening of visa rules and regulations, send to the global community. For a country so dependent on the influx of the world’s best minds to help drive its innovation, are we now making the research environment that was so appealing to those innovators more hostile?
In testimony before the House Judiciary Subcommittee on Immigration, Border Security, and Claims in September, which was examining “Sources and Methods of Foreign Nationals Engaged in Economic and Military Espionage,” National Academy of Engineering President William A. Wulf addressed this point explicitly:
“The United States still benefits from educating and employing a large fraction of the world’s best scientists and engineers. We have great research universities that remain attractive to the world’s best and brightest. We are envied for our non-hierarchical tradition that allows young scientists, with new ideas, to play leading roles in research. We have progressed because we fostered a tradition of free exchange of ideas and information and embraced a tradition of welcoming talented people from elsewhere in the world. But our advantage is eroding under current and proposed policies.”
“The international image of the United States has been one of a welcoming “land of opportunity”; we are in the process, however, of destroying that image and replacing it with one of a xenophobic, hostile nation. We are in the process of making it more likely that the world’s “best and brightest” will take their talents elsewhere. The policies that superficially appear to make us more secure are, in fact, having precisely the opposite effect.”
At press time it was not clear whether BIS or DOD would ultimately adopt their respective proposed rules. For the latest details, check CRA’s Computing Research Policy Blog at: http://www.cra.org/govaffairs/blog.
CRA’s 2005 Tisdale Fellow, Daniel Rothschild, contributed to this report.
1 Available online at: http://www.cra.org/govaffairs/blog/archives/computing_research_association.pdf
2 An 86 mb pdf containing all comments filed is available at:http://www.bxa.doc.gov/FreedomForInformation/FINAL%20deemed%20doc%20without%20respective%20comments%20revised.pdf