National security and academia: Regulating the international circulation of knowledge

Scientific openness vs. national security: A brief history

The scholarly community has long sought to roll back what it regards as unwarranted intrusions by the national security state into the international circulation of scientific knowledge. In June 1949, at hostile Senate hearings into David Lilienthal’s management of the Atomic Energy Commission, J. Robert Oppenheimer famously argued in favor of exporting radioisotopes for basic research (Oppenheimer, 1949). In 1952, Edward Shils reacted strongly against McCarthy-era restrictions on visas for foreign nationals (Shils, 1952). In the early 1980s, responding to accusations that universities were leaking weapons-related information to communist regimes, a National Academies panel concluded that, regarding international exchanges with the Soviet bloc, “in comparison with other channels of technology transfer, open scientific communication involving the research community does not present a material danger from near-term military implications” (Panel on Scientific Communication and National Security, 1982: 41). In 1999, a National Academies committee, after examining charges that the nation’s weapons laboratories were being soft on security, similarly insisted that “if the United States is to remain the world’s technological leader, it must remain deeply engaged in international dialogue, despite the possibility of the illicit loss of information” (Committee on Balancing Scientific Openness and National Security, 1999: 11).

This historical tradition informs the outburst by the scientific community over the restrictions on Chinese nationals attending the conference at NASA’s Ames Research Center. That protest, however, only scratches the surface of an increasingly entrenched system of surveillance of the US research enterprise—including national laboratories, industry, and academia. The need to comply with a complex and onerous regulatory regime poses severe challenges to university administrators and research scientists and engineers, in particular, who seek to protect the freedom of research from the encroachments of the national security state—and from the illicit acquisition of sensitive knowledge.

The Fundamental Research Exclusion

The Fundamental Research Exclusion is the key instrument that universities use to maintain compliance with export controls while allowing free access to research. It emerged from concerns in the 1980s that the Soviet Union was taking advantage of détente to dramatically improve its technological infrastructure. Deputy Secretary of Defense Frank Carlucci raised the alarm in a January 1982 article in Science. Carlucci gave evidence to show that the Soviets were exploiting scientific exchanges, as well as a variety of other means, “in a highly orchestrated, centrally directed effort aimed at gathering the technical information required to enhance their military posture” (Carlucci, 1982: 140). In response, the Department of Defense and the National Science Foundation co-sponsored a National Academy of Sciences study of the need for controls on scientific information. Dale R. Corson, a physicist and president emeritus of Cornell University, chaired the panel that conducted the study. Its findings, known informally as the Corson Report (Panel on Scientific Communication and National Security, 1982), were translated into policy in National Security Decision Directive (NSDD) 189, released on September 21, 1985.

NSDD 189 noted that US universities and federal laboratories were “a small but significant target” of Soviet and Eastern bloc intelligence gathering. On the other hand, the directive insisted that “the strength of American science requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.” The directive sought to address the threat, without stifling creativity, by framing a policy for “controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories.” For this purpose:

“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. (NSDD 189, 1985)

The Fundamental Research Exclusion created a space for universities to produce unclassified knowledge that was not subject to restrictions on circulation. It did not distinguish between basic and applied research, and it made no reference to the nationality of the researchers. Publishability was the necessary, though not sufficient, condition for avoiding classification. However, by focusing on the output of the research, the exclusion ignored the process of knowledge production and asked only whether or not the product of the work was published in the open literature.

The deemed export rules

In 2004, the Department of Commerce’s inspector general insisted that the controls on knowledge production were far too lax. The collapse of Soviet communism, the emergence of China as a major economic power, and the terrorist attacks of 9/11 posed new challenges to national security. There was an explosion of industrial investment in research in the 21st century. By 2009, industry spent twice as much on research and development as did the federal government—$247 billion vs. $124 billion (National Science Board, 2012). At the same time, the commercialization of university research made possible by the Bayh-Dole Act and related legislation in the early 1980s was driving faculty to move closer to the development end of the research-and-development spectrum. Meanwhile, the number of foreign-national students earning PhDs in science and engineering in the United States surged, peaking at 4,500 in 2007 from China alone (National Science Board, 2012). Fearful that other countries would benefit from the open climate of US research to acquire an economic advantage, the inspector general berated the Department of Commerce for not tightening up the regulatory system (Office of Inspector General, 2004). He singled out for special comment ambiguities in the so-called “deemed export” rules that originated with the Export Administration Regulations of 1979. The Bureau of Industry and Security (as it has been called since 2001) administers these rules to regulate the export of dual-use technology.

Deemed export clauses control the export not only of devices or physical goods but also of dual-use knowledge. The clauses apply to multiple forms of knowledge: scientific data, computer source code, engineering designs and specifications, written or recorded instructions, and so on, as well as tacit knowledge or “know-how.” Under the deemed export rules, “export” does not simply mean packing something in a box and shipping it. Knowledge can also be exported visually and orally—for example, in a PowerPoint presentation or by demonstration at a trade fair or in a university laboratory. Finally, “exported” information does not necessarily have to be sent abroad; knowledge can be passed on to a foreign national anywhere, including within the United States. The export is “deemed” to have happened, because it is assumed that the knowledge will leave the country with its bearer.

Tightening the regulations

The deemed export regulations touch on the very essence of the face-to-face encounter between an American researcher and a foreign national, that moment in which knowledge production and knowledge circulation are fused. Until fairly recently, these regulations could not easily block the free exchanges allowed under the Fundamental Research Exclusion, which was defined by publishability. The inspector general wanted to change that. He argued that the Bureau of Industry and Security was placing far too liberal an interpretation on ambiguous clauses in the regulations—clauses that, if interpreted more strictly, would limit the scope of the exclusion.

One such clause concerned the kind of research being done. National Security Advisor Condoleezza Rice reaffirmed the Fundamental Research Exclusion immediately after the terrorist attacks of 9/11. But she defined its scope as covering only basic research, rather than basic and applied research as in NSDD 189. It was not clear which interpretation to use, or even how to discriminate between basic and applied research.

The inspector general also criticized ambiguities in the regulations controlling the use of research equipment. In the Export Administration Regulations, “use” is defined as the “operation, installation (including onsite installation), maintenance, repair, overhaul, and refurbishing” of equipment (Bureau of Industry and Security, 2013: Part 772, 42, my emphasis). Universities claimed that this definition allowed foreign nationals to freely use controlled equipment in their research as long as they did not perform all six of the listed actions. In practice, simply locking away operating manuals was sufficient protection in a laboratory. As one report pointed out, “almost all recent research activity conducted in the nation’s universities has been exempted from export controls based at least in part on [a liberal] interpretation of the Export Administration Regulations definition of ‘use’” (Deemed Export Advisory Committee, 2007: 83). To definitively close this loophole, the inspector general wanted the word “and” changed to “or” (Office of Inspector General, 2004: ii–iii). On that reading, a license would be needed for a foreign national to perform any one of the six listed activities.

The inspector general’s report also looked critically at the definition of a “foreign national,” essentially anyone who was not a US citizen or a permanent resident. It pointed out that a permanent resident of the United States who was simultaneously a citizen of another country did not count as a foreign national under the Export Administration Regulations. This freed permanent residents to transport controlled technology to and from their home country without an export license. This too was a loophole that had to be closed, according to the report.

The two-pronged attack on the Fundamental Research Exclusion did not go uncontested. In June 2005, the Council on Governmental Regulations, an association of research universities, pleaded with the Bureau of Industry and Security not to change the meaning of “use.” Replacing “and” with “or,” the group said, “would eviscerate the fundamental research exclusion” and “alter the whole context of university fundamental research in critical ways.” They insisted that the interpretation of the Fundamental Research Exclusion “must include the right for foreign students and researchers to use, alter, and create; and to receive information on how to use, alter, and create; controlled equipment while conducting fundamental research” (Council on Governmental Relations, 2005: 3). The group also noted that it would be immensely time-consuming and costly to make a complete inventory of sensitive research equipment, and to apply for deemed export licenses to use it, when the number of items on a single university campus could run to 70,000 or more (Council on Governmental Relations, 2005).

To date, these pleas have been heeded: “and” has thus far not been changed to “or.” However, the regulations affecting the entry of foreign nationals have been tightened considerably. In the wake of the October 2001 Patriot Act and the May 2002 Enhanced Border Security and Visa Entry Reform Act, the Department of Homeland Security introduced a new Student and Exchange Visitor Information System (Matthews, 2010). This meant that “universities had to start doing monthly reporting on what students are doing, in terms of whether they are enrolled in their classes and whether they’re still on campus and what courses they are taking and whether they’re making progress,” one senior research manager at Georgia Tech explained. ¹

These tighter visa policies were then combined with an attempt to control access to equipment, in a controversial innovation by US Citizenship and Immigration Services: A “deemed export acknowledgement” is now incorporated in the I-129 form that a research institute submits when petitioning for an H-1B nonimmigrant visa (the standard visa used for foreign-national employees on campus). The acknowledgement requires universities to specify in advance whether or not the visa holder will have access to controlled technology or technological data once he or she arrives on campus. Export control officers objected that this was unnecessary from a security standpoint, that it was onerous for university administrators, that it made no sense in an academic setting where research agendas are fluid, and that no one could predict with certainty the direction or equipment needs of a visiting researcher (Association of University Export Control Officers, 2010). These protests fell on deaf ears, and the requirement has been in place since February 2011 as Part 6 of the visa petition, entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” (Department of Homeland Security, 2013).

Export controls at Georgia Tech

The Georgia Institute of Technology prides itself on having a transparent and effective system in place to interpret and implement US export regulations. About a dozen employees devote at least part of their time to managing this system, including several who are tasked with ensuring that all research faculty and students show due diligence in the conduct of their research, understand the meaning of the Fundamental Research Exclusion, and respect the restrictions imposed on the circulation of knowledge. Three lawyers (aided by external consultants) make legal judgments as to whether or not a particular research project is subject to the constraints imposed by the Export Administration Regulations or the explicitly defense-oriented International Traffic in Arms Regulations. Four or five researchers act as export control coordinators. The university’s Office of Research Integrity Assurance pays between a quarter and half of these researchers’ salaries so that they can provide the technical advice needed by administrators, lawyers, and faculty to assess the pertinence of the often-ambiguous regulations.

Georgia Tech research faculty members generally accept that the mechanisms put in place to ensure compliance with federal export regulations are a necessary nuisance. No one believes that they can be abolished entirely, but many researchers feel that they are unduly onerous. Protest is muted, however, for fear of the consequences of being lax.

One possible consequence is personal ruin. An extraordinary feature of the export regime is that penalties for infraction are a personal, not an institutional, responsibility: An individual who willfully violates dual-use export control laws can be fined up to $250,000 or imprisoned for up to 10 years, or both.

Another possible consequence is that the institution will lose its top ranking as a secure site for doing sensitive research, and so lose its external funding. At Georgia Tech, this funding amounted to some $655 million in fiscal year 2013 alone. “It’s not the fine; it’s our institutional integrity. We would lose so much more than those fines in our credibility as a research institution, in our ability to do research and get funding for our research,” as a senior research manager put it.

Finally, there’s the fear that the leak of a controlled item might jeopardize the economic or military security of the United States. A research scientist who has been actively engaged in policy formulation at the national level put it thus: “It’s a scary world out there. People ask, ‘Do you realize what could happen if someone got that piece of information?’ We don’t want them to get that piece of information. We don’t even want them to know what that piece of information is. We cover it… you know we have people who are trying to do really, really, really bad things to [the United States].”

Dealing with China

Advanced US science and technology can only be exploited abroad if a country has a skilled labor force that understands the significance of cutting-edge research. China’s ability to absorb Western science and technology improved sharply in the 2000s. In the academic year 2000–2001, China trained 5,000 people to the level of a PhD in engineering and technology. Five years later, that number had exploded to 12,000 (Gereffi et al., 2008). Only a fraction of these graduates had an education comparable to that available in the United States, but they doubtless provided a substrate on which Chinese science and engineering students who earned a PhD in the United States could build. Although the majority of Chinese postdocs stay in the United States, the “1,000 Talents” program launched in late 2008 had enticed 2,100 of the most outstanding members of China’s educated elite to return home by summer 2011 (Zweig, 2013).

The vast majority of foreign visitors to universities are bona fide students. Many engineers at Georgia Tech are nevertheless certain that there are spies among them. As one senior engineer put it, “If you were a Chinese spy or you were trying to figure out how to get US technology, how would you do it? You’d try to get someone to infiltrate IBM or… Boeing… The technology-centric institutions of the [United States] are very, very, very, very open organizations from which there is leading-edge technology that is much, much easier to access than through those companies. And for us, Georgia Tech, we’re somewhere in the group of 10 leading technology-focused institutions. Maybe we’re fourth.” This engineer has no doubt, based on personal experience, that the risk of illicit acquisition of sensitive knowledge at Georgia Tech is real, although the numbers are small: “One-tenth of 1 percent of all people do something stupid and bad. [But] we have 4,000 international students on campus, and one-tenth of 1 percent is four students, and that’s about what it is we saw every year, and that is cyber threats, students on campus performing in clearly active ways to do things that they shouldn’t be doing that caught the attention of various organizations outside of Tech.”

It is likely that the FBI was one of those organizations. Two of its agents visited the campus in 2013 to warn faculty and staff about foreign collection threats to sensitive research, and to encourage them to report any suspicious behavior by foreign nationals. By these measures, the FBI seeks to supplement formal procedures and regulations with informal methods of intelligence gathering that engage the entire academic community.

In praise of openness

Thirty years ago, an appendix to the Corson Report published exchanges between the State Department and two US universities that had been asked to restrict the visits of scientists from communist countries. Faculty and top officials at both institutions reacted strongly against imposing any restrictions, an idea “so outrageous as to be incredible,” wrote a professor at MIT (Panel on Scientific Communication and National Security, 1982: 187). His provost agreed that the government’s request was “inconsistent with the spirit and practice of a university as an open community of scholars, teachers, and students” (Panel on Scientific Communication and National Security, 1982: 188). The president of the University of Minnesota wrote that “our mission is teaching, research, and public service, and neither our faculty nor our administrators were hired to implement government security actions” (Panel on Scientific Communication and National Security, 1982: 175).

History repeated itself in 2007. A committee chaired by Norman R. Augustine, the retired chairman and CEO of the Lockheed Martin Corporation, was called on to make recommendations about how to control the flow of sensitive knowledge to countries of concern. Augustine, like Corson, tried to capture the context that was generating anxieties. For Corson it was the Soviet Union’s insatiable appetite for US high technology. For Augustine it was the globalization of US industry and academia, and an increasingly blurred distinction between military and civilian technology. As the Augustine committee put it, “the United States no longer holds the dominant position in science and technology that it recently enjoyed. Leadership in science and technology today is a globally shared and highly interdependent perishable asset” (Deemed Export Advisory Committee, 2007: 1–2). This meant “today’s United States research enterprise would barely function without the foreign-born individuals, including foreign nationals, who contribute to it” (Deemed Export Advisory Committee, 2007: 12). The need was that much greater, since there had been a sharp decline in the graduation rate of engineers who were US citizens.

The Augustine committee quoted a 2006 report by the Office of the National Counterintelligence Executive emphasizing that most foreign students and academics working in US research institutions were not technology thieves. The committee also stressed that the vast majority of foreign nationals who did attempt to steal technology neither came to the United States with that intention nor were directed to do so by a foreign agent. Rather, on finding that they had access to information that was in demand abroad, they were driven by a variety of reasons—personal profit, scientific rewards, patriotism—to acquire it. The Augustine report concluded: “In this context, the ‘spy’ could be just about anyone, including a United States citizen, given the increasing degree of international physical and communication portability available in both developed and developing countries” (Deemed Export Advisory Committee, 2007: 71).

I have no doubt that some sensitive knowledge leaks illicitly from the Georgia Tech campus. That risk will always be there. Congressman Wolf stated that just 19 trade-secret espionage cases had been brought under the Obama administration. Of these, 16 involved Chinese nationals spying for Chinese institutions. To put these numbers in perspective, there were 195,000 Chinese students at US universities in 2011 alone. To selectively target this particular national group is to lay oneself open to the charge of racial discrimination. It is also to risk losing valuable contributions to US innovation and alienating potential advocates for US interests once Chinese students return home.

Every informed researcher knows that new knowledge rapidly becomes obsolete and that if knowledge is not acquired in the United States, it can often be acquired elsewhere. That said, the only reasonable security policy is to protect the most sensitive knowledge—to build “high walls” around “small fields,” as the Augustine committee proposed, rather than to try to build “nominal walls” around “large fields” (Deemed Export Advisory Committee, 2007: 26).

The United States prides itself on its openness. Indeed, this is one of the most important ways in which the United States has differentiated itself from Soviet communism during the Cold War, and from Chinese communism today. It is not only unnecessary but also absurd to sacrifice that principle in an attempt to block every possible channel though which sensitive information may leak abroad.