by Rebecca Miro
An academic institution’s mission includes information dissemination, which runs counter to the restrictions imposed by export controls. Although most university research is fundamental research -- basic and applied research whose results are published and shared broadly within the scientific community – and therefore exempt from export controls, there are instances when federal agencies include restrictions in research contracts, making it subject to export control regulations. However, the export control regulations system shows serious flaws whose ramifications impact universities in many ways.
Export Control describes laws and regulations whose intent is to protect national security and intelligence by controlling the export of “oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes” (Various Federal Agencies, n.d.). The export can be to anyone outside of the United States, including a U.S. citizen, or to a non-U.S. citizen or entity within the U.S. The latter is called a deemed export (P. Laflin, personal communication, April 2010).
The Export Administration Regulations (EAR) regulate dual-use items, those which can have both commercial and military purposes. The International Traffic in Arms Regulations (ITAR) regulate articles with military or defense applications. While the EAR and ITAR were enacted prior to September 11, 2001, the events of that day renewed the focus to enforce these laws (Various Federal agencies, n.d.), in an effort to prevent our military and commercial intelligence from falling into enemy hands.
However, in a 2007 report, the Deemed Export Advisory Committee (DEAC) noted numerous shortcomings of the current system. For example, some items on the controlled list are now available freely anywhere. These shortcomings point to an outdated system that needs serious revamping.
Federal agencies are including the term “sensitive but unclassified” in contracts in order to exact control on basic research (Monastersky, 2007). It appears that this broad classification is an attempt to ensure that nothing falls through the cracks. Unfortunately, this causes ambiguity, forcing university administrators to devote added time to interpreting, clarifying, and negotiating contract clauses. This is a financial ramification of the confusing export control situation, as universities cannot recover costs of these administrative functions via overhead (F&A) accounts, as Tarantino (2008) noted.
However, export control regulations are not to be taken lightly since federal agencies are monitoring more closely. In what’s become a landmark case for export control, former University of Tennessee Professor J. Reece Roth was sent to prison for circumventing the deemed export restriction (Monastersky, 2008).
Universities find their ability to collaborate in cutting-edge research with academic and industry partners hampered when those partners cannot agree to restrictions included in contracts from federal agencies. Similarly, onerous export control laws dissuade international scientists from collaborating with American researchers, causing “reverse brain drain.” Foreign scientists will simply collaborate with other countries if the policies for collaborating with U.S. scientists are too burdensome, noted Dr. Frank Tarantino when he addressed the Congressional Export Control Working Group (Tarantino, 2008, p. 4). He went on to explain that countries find other international partners with whom to develop cutting-edge research. Such a situation harms the national security and intelligence that these laws were created to protect since the U.S. will then not be privy to the latest technology.
Further complicating matters are deemed exports, where foreign nationals in the U. S. cannot work with certain information. According to National Science Foundation, the graduation rate of engineers who are U.S. citizens has actually declined by 20 percent over the last two decades, and two thirds of the Ph.D.s in engineering granted by U.S. universities are now awarded to non-citizens (DEAC, 2007). If there are not enough American-born graduates interested in science and engineering, then students interested in these disciplines must come from abroad. Otherwise, research and development in American universities would be unable to continue.
In response to the concerns raised, on August 30, 2010 President Obama announced an initiative to ease some of the current restrictions (“Obama plans,” 2010). Any committee convened for this purpose must include university representatives to present academia’s case. The revised system must be current, streamlined, efficient, and effective. Speaking from experience, most faculty are leery of regulations that they perceive as hindering their research efforts. An expeditious process will help to alleviate the feeling of imposed bureaucracy.
In conclusion, export controls serve an important purpose. In the increasingly globalized marketplace, even the most stringent laws will not prevent our enemies from obtaining our intellectual data. As the DEAC reported, if the information sought cannot be obtained from the United States, “they will simply be obtained from others” (DEAC, 2007, p.15). If this is the case, then it is imperative that the U.S. government devise policies and methods that will protect the country’s interests without jeopardizing our competitiveness in research and development.
References
Basken, P. (2008). Panel faults restrictions on sensitive research. Chronicle of Higher Education, 54(18), A25.
Blum, C. (2009). International issues from the Capital view. NCURA Magazine, XLI(4), 2-3. Retrieved from http://www.ncura.edu
Deemed Export Advisory Committee (2007). The deemed export rule in the era of globalization: Submitted to the Secretary of Commerce. Retrieved from http://tac.bis.doc.gov/2007/deacreport.pdf
Monastersky, R. (2007). Ease security limits on research, panel says. Chronicle of Higher Education, 54(10), A9.
Monastersky, R. (2008). Professor’s conviction on export violations alerts U.S. universities. Chronicle of Higher Education. Retrieved from: http://chronicle.com/article/Professors-Conviction-on-E/114015/
Obama plans to ease restrictions on sensitive exports. (2010, August 30). Chronicle of Higher Education, The Ticker. Retrieved from http://chronicle.com/blogPost/Obama-Plans-to-Ease/26590
Tarantino, F. (2008). The impact of export controls on non-profit and university R&D efforts: Briefing for the congressional export control working group. Retrieved from http://www.usra.edu/galleries/ipc_files/itar.pdf
Various Federal agencies. (n.d.). Restrictive troublesome clauses impacting export compliance [PowerPoint slides]. Retrieved from http://www.ncuraregioniii.com/2008/May2008/C13.ppt
No comments:
Post a Comment