Recent Developments in Research Law.

An Overview of Export Law and Regulations

Current federal export laws control a wide range of technologies and some of the regulations outlined in them can have a substantial impact on research. These laws control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone (including U.S. citizens) or to foreign nationals (even if in the U.S.), and some of these regulations will be outlined in this section.

Export Administration Regulations

The responsibility of the Bureau of Industry and Security (BIS) in the U.S. Department of Commerce is to apply and enforce the Export Administration Regulations (EAR) (15 CFR chapter VII, subchapter C). The EAR is responsible for regulating the export and re-export of numerous commercial items, including those that have dual-use applications, which means that they may be used in both the military and commercial realms. Other government agencies, such as the U.S. Department of State, regulate defense items.

A small percentage of U.S. exports and re-exports regulated by the EAR require a license from BIS. To obtain a license, information must be provided regarding the item that is being exported, its anticipated use, and the recipient and final destination of the item. There are 10 specific categories that require a license: nuclear materials; chemicals, microorganisms, toxins; materials processing; electronics; computers; telecommunications; lasers and sensors; avionics; marine; and propulsion systems (See [section]734.2(a) of the EAR for items that are subject to the EAR).

International Traffic in Arms Regulations

The U.S strictly regulates exports and re-exports of defense items and technologies to protect its national interests in peace and security. The Directorate of Defense Trade Controls (DDTC), Bureau of Political-Military Affairs, Department of State, in accordance with 22 U.S.C. 2778-2780 of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), is charged with controlling the export and temporary import of defense articles and defense services covered by the United States Munitions List (USML). (22 CFR [section] 121.1)

The purpose of ITAR is the control of arms sales to foreign parties to protect U.S. national security and to further U.S. foreign policies. The Core of the ITAR is the United States Munitions List (USML). Items included on this list are those that are deemed to have a military use or one that allows Americans in military situations to defend themselves by disarming or eliminating their adversaries. The ITAR governs license applications for exports dealing with matters related to defense trade compliance and enforcement, and also assumes responsibility for the creation of defense trade reports to Congress and the public (Defense Trade Function Overview, n.d.)

As one would expect, items such as weapons, chemical and biological agents, military vehicles, and equipment all have a military use according to ITAR. However, all satellites and related technology and data are now added to this list. Both the ITAR and the EAR are now subsuming control over applied research such as satellite technology, that was once considered to be of a non-military nature. In spite of a longstanding official policy that exempted fundamental research from the export regimes, these organizations have increasingly been expanding their jurisdictional reach to include items such as satellites (22 CFR [section] 121.1 Category VIII).

Office of Foreign Assets Control

The Office of Foreign Assets Control, or OFAC (2002 CFR Title 31, Volume 2 Chapter V), is part of the U.S. Department of Treasury and is the organization responsible for administering and enforcing economic and trade sanctions. OFAC has the authority to impose comprehensive or selective control over transactions between the U.S. and other countries and to freeze foreign assets. This role is mandated by American foreign policy related to national security concerns such as terrorism and the proliferation of weapons of mass destruction.

OFAC also has the power to provide general licenses authorizing the performance of certain categories of transactions and to provide restricted licenses on a case-by-case basis subject to specific conditions. These particular transactions, which OFAC is empowered to oversee, are referred to as prohibited transactions and may include trade or financial embargos between and among U.S. citizens and foreigners. Unless expressly authorized by OFAC or exempted by statute, prohibited transactions are to be adhered to by the parties involved. However, each program, such as the Anti-Terrorism program and the Anti-Drug program, is based upon different foreign policy and national security goals so the prohibitions may differ. In some cases, a license is needed to undertake almost any transaction involving a citizen of a targeted country while in other cases only specified individuals or companies are subject to restriction or prohibition.

The National Policy on the Transfer of Scientific, Technical, and Engineering Information, NSDD 189 There has been a longstanding tension between the perceived need to protect national security through the control of technical information while at the same time providing an environment that allows for free and open scientific discourse to take place to advance scientific knowledge. This tension has been balanced through a carefully negotiated Fundamental Research Exclusion policy that allows published research that is already in the public domain to be excluded from licensing such as that overseen by OFAC. This exclusion applies only to disclosures in the U.S. at accredited institutions of higher learning and may be reversed if these institutions accept federal funding for projects that are subject to specific national security controls.

Bona-fide, U.S. citizens employed full time at American universities are allowed, under ITAR, to share unclassified technical data with foreign nationals who are also employees of American universities and who reside in America. This exemption may only be applied when the employee is not a national of an embargoed country and upon receipt of a signed agreement that disallows the sharing of information with other foreign nationals without prior government approval. There are limitations to this exemption however, as in the case of graduate or doctoral students who may not have full-time employee status or the foreign visa holder who is required to maintain a foreign residence.

The National Policy on the Transfer of Scientific, Technical, and Engineering Information, or NSDD 189, generally provides that products of fundamental research are to continue to be unrestricted. This policy, created under President Reagan in 1981 (NSDD 189, 1985), states that:

For national security reasons, there may be instances when control of information is necessary and data that are generated during federally funded research in science, technology, and engineering at colleges, universities, and laboratories are subject to review. Various federal agencies use a form of classification to determine the level of control of this information. These agencies are responsible for: (a) determining whether classification is appropriate prior to the award of a research grant, contract, or cooperative agreement and, if so, controlling the research results through standard classification procedures; and (b) periodically reviewing all research grants, contracts, or cooperative agreements for potential classification. No restrictions may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification, except as provided in applicable U.S. statutes.

The expansive definition of export continues to be a problem in research even with the exemption provided by NSDD 189. In situations where export controls stipulate that a license is required but no exemption is available, a license must be obtained before export-controlled items or information can be shared abroad or with foreign nationals participating in research on U.S. campuses. For example, restrictions exist for dissemination of information at conferences where unpublished research is to be presented and when assisting foreign collaborators with understanding how to use items in research (defense service) or transfers of research equipment abroad. Finally, no licenses at all are available for exports to embargoed countries and those countries designated as supporting terrorist activities (15 CFR chapter VII Part 764, Supplement 3; See also 15 CFR chapter VII Section 744.1 (c)).

The NSDD 189 and other legislation such as the Bayh-Dole Act (PL 96-517, Patent and Trademark Act Amendments of 1980), have an impact on every area of research. For example, current export laws control a wide range of technologies including those created by researchers at educational institutions or by medical personnel. Most recently the Association of American Universities (AAU) has taken the lead in protecting principles outlined in NSDD 189. On October 16, 2006 the AAU commented on the newest draft of the proposed Department of Defense (DOD) rules concerning export controls as follows (DFARS Case, AAU comments, 2-3 2006):

Deemed Exports, Immigration Policy, and Universities

There are some key issues associated with the proposed rules on export from the so-called deemed export rules. Institutions of higher education have a responsibility to make certain that any and all research conducted under their sponsorship protects the national security of the U.S. and complies with export rules and regulations. However, with the current rules in place at universities, progression within the scientific community and the conduct of research can be seriously hindered. Stringent guidelines related to how researchers undertake their work, has meant that the progress of collaborative science may be impeded.

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