DEVELOPMENTS CONCERNING SECRECY IN UNIVERSITY RESEARCH Dave Broome Sr. Associate General Counsel NC State University

A Brief History of Publication Controls/Fundamental Research February 27, 1981 “Five Presidents’ Letter” to Secretaries of Commerce, State and Defense “to convey our grave concern about attempts to extend export restrictions to American colleges and universities.”

September 30, 1982 National Academy of Sciences Study Report: Scientific Communication and National Security Export controls should not apply to unclassified university research. No restrictions on publication. Even in “gray” areas, only 60-day notice and comment should apply

September 21, 1985 National Security Decision Directive (NSDD) 189, The White House National policy that the products of fundamental research remain unrestricted. Where control is needed, the mechanism is classification. No restriction on conduct or reporting, except classification.

November 1, 2001 Condoleeza Rice, The White House NSDD 189 remains in effect and will be followed…

However…. Research Administrators across the U.S. are finding increasing pressure to agree to publication restrictions in federally-funded projects. Research Administrators across the U.S. are finding increasing pressure to agree to publication restrictions in federally-funded projects.

Recent NAS Conference: Scientific Openness and National Security (January 2003) Penrose (Parney) C. Albright, PhD Penrose (Parney) C. Albright, PhD Asst Dir for Homeland and National Security, OSTP Asst Dir for Homeland and National Security, OSTP January 9, 2003 January 9, 2003

Issues Raised by Albright Advances in biological research aimed at understanding disease can be turned against us Advances in biological research aimed at understanding disease can be turned against us  Little needed infrastructure  Widely available expertise, and  Devastating consequences Exacerbated by recent events (Anthrax attacks, paper on synthesis of polio virus, Congressional interest, etc.) Exacerbated by recent events (Anthrax attacks, paper on synthesis of polio virus, Congressional interest, etc.) The public reasonably expects its governments to take reasonable steps to reduce the risk of bioterrorism The public reasonably expects its governments to take reasonable steps to reduce the risk of bioterrorism

Issues Raised by Albright Biological research is not controllable by U.S. Biological research is not controllable by U.S. Heavily internationalized; Independent Commercial Sector Heavily internationalized; Independent Commercial Sector Science community lacks articulated and defensible criteria for deciding… Science community lacks articulated and defensible criteria for deciding… What sort of work is “inappropriate research” or inappropriate for open publication What sort of work is “inappropriate research” or inappropriate for open publication How to handle unexpected and potentially dangerous results from “benign” projects How to handle unexpected and potentially dangerous results from “benign” projects Creates “vacuum” Creates “vacuum” Public will look for a coherent policy and how a particular event fits in that policy Public will look for a coherent policy and how a particular event fits in that policy The absence of a community-accepted policy invites political action (Probably onerous & ineffective) The absence of a community-accepted policy invites political action (Probably onerous & ineffective)

Albright Recommendations Scientific community should develop criteria for deciding what is “good” research and what is “bad”; public debate Scientific community should develop criteria for deciding what is “good” research and what is “bad”; public debate Develop process for assessing the “hard” cases and for handling unexpected research results Develop process for assessing the “hard” cases and for handling unexpected research results Processes generally like those created for recombinant DNA research may be a model Processes generally like those created for recombinant DNA research may be a model This issue will not go away, and action is needed quickly This issue will not go away, and action is needed quickly

Export Controls ; ITAR ITAR - State Department (w/ DOD advice)  United States Munitions List (8-9 pages)  Basic concept--items developed specifically for military use

Export Controls; EAR EAR – Commerce Department  Commerce Control List  “Dual Use” Technologies  175 pages

Technical Information; Definitions ITAR “technical data” “information” “required for the design, development, manufacture … testing … or modification of a defense article.” EAR “technology” “specific information necessary for the development, production or use of a product.”

Deemed Export Rule: Transfer of technical information about a listed item to a foreign national in the United States IS AN EXPORT. ITAR “Export: … disclosing … technical data to a foreign person, whether in the United States or abroad …” EAR “Release of technology … subject to the EAR to a foreign national in the United States … is deemed to be an export to the home country or countries of the foreign national.”

Foreign “National” or “Person” Consistent definition under both EAR and ITAR  Not a U.S. citizen  Not a permanent resident alien  Has not actually been granted asylum status

Fundamental Research ITAR  Definition of technical data does not include information in the public domain.  Public domain includes information resulting from university fundamental research. EAR Technology that arises during or results from university fundamental research is “not subject to the EAR.”

Fundamental Research ITAR “Fundamental research is defined to mean …” EAR “The intent behind these rules is to identify as ‘fundamental research’ …” Definition Both ITAR and EAR: “… basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community …”

Fundamental Research  Free publication of results is part of definition  Specific ITAR exclusion where publication controls over research results are accepted: “University research will not be considered fundamental research if (i) the university or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or (ii) the research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.” Under ITAR--Right to Publish Critical

Fundamental Research EAR, National Security Controls  734.8(b)(6) The provisions of § of this part will apply if a university or its researchers accept specific national security controls … on a research project or activity sponsored by the U.S. Government.  734.8(b)(6) The provisions of § of this part will apply if a university or its researchers accept specific national security controls … on a research project or activity sponsored by the U.S. Government.

Fundamental Research EAR, National Security Controls  § (a) If research is funded by the U.S. Government, and specific national security controls are agreed on to protect information resulting from the research, §734.3(b)(3) of this part will not apply to any export or reexport of such information However, any export or reexport of information resulting from the research that is consistent with the specific controls may nonetheless be made under this provision. (emphasis added)  § (a) If research is funded by the U.S. Government, and specific national security controls are agreed on to protect information resulting from the research, §734.3(b)(3) of this part will not apply to any export or reexport of such information in violation of such controls. However, any export or reexport of information resulting from the research that is consistent with the specific controls may nonetheless be made under this provision. (emphasis added)

Fundamental Research EAR, National Security Controls § (b) Examples of "specific national security controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non- U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research…

Fundamental Research EAR, National Security Controls Supplement #1 to Part 734, Question E(2): Under § of this part, … [a]ny … export …that is consistent with the controls will continue to be eligible for export … under the "fundamental research" rule set forth in §734.8(a) of this part. Thus, if you abide by the specific controls you have agreed to, you need not be concerned about violating the EAR….

Fundamental Research EAR, National Security Controls  Thus, under EAR, accepting a narrowly- prescribed U.S. government prepublication clearance control may not trigger the deemed export rule.  HOWEVER, this result is NOT available if the project is subject to ITAR Regulations.