Export Controls: Grants, Contracts and Publishing

In the post-9/11 era, new, more restrictive clauses have been added to many federal scientific grants and contracts. The two main changes scientists and their institutions are encountering with these restrictions are tighter pre-publication reviews and background checks on any participating foreign researchers. For a system that has historically been based on the principles of scientific openness and the marriage of research and education, such changes are bring viewed with considerable concern by the research community.

The majority of basic scientific research in the US is conducted at universities, where research thrives on the principle of openness. This openness characteristic of academic research was especially embraced in the 1980's in the National Security Decision Directive 189 (NSDD-189) that declared, "to the maximum extent possible, the products of fundamental research remain unrestricted" and "no restriction may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification…"[1]. Consequently, when the phrase, "sensitive but unclassified" reemerged in government contract language after 9/11, so did the potential for governmental intervention into unclassified research. (For more on sensitive but unclassified and its impact on science, see the "sensitive, but unclassified" issue brief). On projects bearing the "sensitive but unclassified" label, the government has expanded its authority to intervene and increase restrictions. An example of such an intervention is requiring a lab with foreign researchers to obtain a special license from the Department of Commerce in order to allow them to work on certain projects [2]. Such regulations are called "deemed export rules," and are troublesome to universities. At the Massachusetts Institute of Technology, for example, researchers turned down $404,000 of federal money because the National Security Agency refused to eliminate the stipulation requiring all foreign researchers working with the University's Artificial Intelligence Laboratory be approved by the government [3].

With a noticeable increase in the number of complaints from universities about these new restrictive clauses, the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) conducted a study in summer 2003 on the prevalence of "troublesome clauses" that were inconsistent with the policy outlined in NSDD-189. The AAU/COGR task force reviewed 138 instances where awards included restrictive publication or foreign national language, 105 of which included proposed publication restrictions [4]. The other 33 contained a variety of clauses restricting the sharing of research results, primarily with foreign nationals [5].

For those universities not wanting to completely forego federal grant money because of these troublesome clauses, they have gone to great lengths to negotiate the contract terms. The AAU/COGR report found that of the 30 schools confronted with publication restriction clauses, 20 of them negotiated alternative language successfully [6]. With regard to restrictions affecting foreign nationals, 9 of the 15 schools were able to decide on acceptable revisions [7]. While such negotiations have led to removal or modification of restrictive language, when resolution takes more than a month, like it did for 75% of the cases in this study, researchers have to wait that much longer to begin or complete their projects [8].

In their recommendations, AAU and COGR stressed that when awarding contracts and grants, agencies need to remember the distinction between university-based research and industry-based research: universities primarily conduct basic research that, unless classified, should remain unrestricted, whereas research conducted for commercial, profit-generating endeavors can be subject to greater restriction. Such constraints do not have a place in America's universities, where research is based on the free exchange of knowledge [9].

In reports issued in March 2004 by the Department of Defense (DOD) Inspector General and the Department of Commerce (DOC) Inspector General, export controls and security for foreign nationals working with sensitive technology were reevaluated. The DOD report called for increasing incorporation of export control clauses in DOD contracts as well as expanding access control measures like badging all foreign nationals and segregating controlled technology labs [10]. Similarly, the DOC report focused on the use of sensitive scientific equipment controlled by the Export Administration Regulations (EAR). The Department wants to increase deemed export provisions on all EAR-controlled equipment, including any equipment at universities involved in fundamental research [11]. The AAU and COGR have voiced their concerns with these reports, citing many examples of how tightening deemed export rules and restricting use of laboratory equipment by foreign nationals will "have a chilling effect on university research and education as well as compel discriminatory treatment of foreign nationals on campus [12]."

Allison Chamberlain
August 2004