November 16, 1982
Subject: Department of Defense Publication and Export Controls
Enclosure 1 is Special Assistant Wilson' s memo forwarding a DOD memo of September 21, 1982 which:
(1) sets forth DOD policy on publications under university research contracts, and
(2) refers to and attaches a DOD memo of May 21, 1982, concerning university research contracts and export controls.
Each of these DOD documents is provided for your information and guidance in contract negotiations with DOD agencies. Please note that the DOD memorandum of September 21, 1982 applies to grants as well as contracts. We are questioning the application to grants by a memo to Executive Assistant Wilson (see Enclosure 2).
Background information on the University' s position on export controls is provided by Enclosure 3, Executive Assistant Wilson's May 12, 1982, issuance to Chancellors of Guidelines on Federal Control of Technology Transfer.
Refer: Peggy Klenz
Department of Army
David F. Mears
University Contracts and Grants Coordinator
October 29, !982
COORDINATOR DAVID MEARS
I am enclosing [as Attachment A] a copy of a memorandum dated September 21, 1982, signed by Richard DeLauer, Under Secretary of Defense (Research and Engineering) setting forth DOD policy on a contract requirement for submission of manuscripts for review by contract officers simultaneously with submission for publication. The occasion for the memo is concern about the possible loss of technology to foreign countries as well as concern that the strength and standing of the national research effort not be harmed by unnecessary restrictions.
I believe the policy is not inconsistent with University policy so long as the period for review and comment is clearly limited and the review implies no authority to approve or disapprove publication.
I suggest you make this memorandum available to campus C& G officers for their information and guidance.
David A. Wilson
Associate Counsel David Dorinson
Director Belle Cole
21 Sep 1982
Memorandum for Assistant Secretary of the Army (Research, Development and Acquisition)
Assistant Secretary of The Navy (Research, Engineering and Systems)
Assistant Secretary of the Air Force (Research, Development and Logistics)
Director, Defense Advanced Research Projects Agency
Subject: University Research Publications and University Research Contracts
The position of this office on university research contracts and export control is clearly expressed in the attached memorandum of 21 May 1982 [Attachment B].
Some DOD Components currently require that one copy of each research paper planned for publication be sent to the sponsoring DOD agency simultaneously with its submission for publication. Recent events have supported this practice. Effective immediately all new basic research (6.1) contracts and grants shall contain a clause requiring simultaneous submission of papers intended for publication in any medium. This clause shall also be included in such grant and contract renewals when feasible. This includes symposium proceedings when the manuscript of the research presentation is to be published in the subject proceedings. DOD reserves the right to comment on any such manuscripts so that the Principal Research Investigator can make informed decisions concerning final publication of research results. In exceptionally rare cases it is possible that such advice may be warranted. It is extremely important that you realize that review of research papers is for comment and not for approval.
It has come to my attention that some DOD agencies are attempting to modify university research contracts and grants in the course of the respective, previously established periods of performance. This is unnecessary since it would unduly restrain the open exchange of unclassified information among members of the scientific community. In the unusual cases where some degree of caution does seem to be indicated, the responsible Program Manager shall advise the Principal Research Investigator in light of export control regulations. It is recognized that the current export regulations are not well-defined and it is important that Program Managers do not apply unnecessary restrictions on the dissemination of research results which would be harmful to the strength and standing of the national research effort.
If you have problems in following this guidance, you should first discuss them with my staff. The point of contact for university research is Dr. Leo Young, (202) 697-3223.
21 May 1982
Memorandum for Assistant Secretary of the Army (Research, Development and Acquisition
Assistant Secretary of the Navy (Research, Engineering and Systems
Assistant Secretary of the Air Force (Research, Development and Logistics)
Subject: University Research Contracts and Export Control
It is the responsibility of this office to ensure that export controls are applied to university contracts consistent with Defense Department policy. That policy is currently under review. It has come to my attention that certain DOD agencies are attempting to modify university research contracts by including clauses which would serve to unnecessarily restrain the open exchange of unclassified information among members of the scientific community. Restrictions on the publication of basic research results and on the involvement of foreign students and faculty in unclassified basic research studies can adversely affect the research needs of both universities and the Department of Defense, and will cause unnecessary friction between the DOD and university communities.
It is still DOD policy to avoid new or unnecessary restrictions added to university research contracts. Contract officers should not make ad hoc decisions which would aggravate and confuse an already difficult situation. If you have problems requiring policy changes you should first discuss them with my staff. The point of contact for university research is Dr. Leo Young, 697-3228.
James P. Wade, Jr.
November 12, 1982
EXECUTIVE ASSISTANT WILSON
Subject: DOD Policy on University Research Publications
Your memo of October 29 forwarded a DOD memorandum dated September 21, 1982, with the suggestion that I make this memorandum available to campus Contract and Grant Officers for their guidance.
In reading the DOD memorandum, I note that it applies to contracts and grants, whereas the DOD memorandum of May 21, 1982 (which is referenced in the September memorandum) applies only to contracts. I believe the expanded application in the case of DOD's requirement for review of research papers should be questioned. The policy issue which I am raising is that while such control may be appropriate for DOD contracts, such a control is not appropriate in grants. The Federal Grant and Cooperative Agreement Act of 1977 (copy enclosed [not scanned]) provides that agencies shall use a grant agreement whenever there is no substantial involvement anticipated between the Government and the grantee during performance of the contemplated activity. I believe that the proposed requirement for review of publications constitutes substantial involvement by the Government. The imposition of controls on publication is thus inconsistent with the use of grant agreements. The DOD directive should therefore be limited to contracts.
Pending receipt of further advice, I shall send to campuses a C& G Memo providing information copies of the DOD memoranda of May 21, 1982 and September 21, 1982 and, as background, your May 12, 1982 reissuance to Chancellors of Guidelines on Export Controls.
David F. Mears
Contracts and Grants Coordinator
Associate Counsel Dorinson, w/enclosure
Director Cole, w/enclosure
Contract and Grant Officer Acanfora, w/o enclosure
Contract and Grant Officer Klenz, w/o enclosure
Contract and Grant Officers via C& G Memo No. 82-42
May 12, 1982
I am reissuing the guidelines on Export Control because those sent to you on March 17, 1982 were inadvertently marked "draft". The attached guidelines are exactly the same. You should use them until you are advised to do otherwise.
On the advice of General Counsel, you can rest assured that actions taken within these guidelines are fully consistent with the law. Should any employee of the University be challenged by any government agency on an action taken within these guidelines: he or she can expect legal assistance from General Counsel.
The situation surrounding this matter continues to be confused. I am actively participating in a national effort by the academic and scientific community to attain some clarity and agreement with the government about the application of controls in academic situations.
David A. Wilson
Members, President's Administrative Council
Principal Officers of The Regents
Chair, Academic Council
Special Assistant Albertson
Associate Counsel Dorinson
Several campuses reported that in recent months different federal agencies (the State Department, the Commerce Department and the FBI) have made requests for information about visiting scholars and graduate students from the People's Republic of China. The requests have been addressed to various people: the faculty member sponsoring the student, the department chair, the Foreign Student Advisor. There seem to be two types of letters. The one from the State Department (sent by the Country Officer, Office of Chinese Affairs) includes a cover letter citing the apparent authority for the inquiry, and a questionnaire on such matters as: the students professional association, program and travel plans; expected research activity, methods and facilities; judgment on the applicability of the student's research to "critical technologies" (production or processing of advanced materials); the existence of contractual relationships with government agencies. The Commerce Department letter (sent by the Office of Export Control) is similar but more detailed. The intent of these agencies seems to be to prevent foreign scholars who participate in exchange programs from having access to technical data which may be subject to export controls. The FBI asks University administrators, and possibly others, for information about students and visiting scholars. Attachment 1 includes sample letters [not scanned].
In addition, the Department of Energy has advised the Laboratories and others of President Reagan's recently enacted policy, in response to events in Poland, of "freezing" all student and scientific exchange with the Soviet Union and other Eastern European countries. To our knowledge the State Department has not made inquiries at UC about visitors from these countries.
The University has been following this matter closely for over a year. It began with the controversy over the VHSIC program and the letter from the five University Presidents, including President Saxon, to the Secretaries of State, Defense and Commerce. Subsequently the University has been working closely with these Universities, the Association of American Universities, certain professional associations (the American Physical Society), agency officials and others in responding to many aspects of the problem viz. overall strategy, the EAR and ITAR regulations and proposed changes to them. Executive Assistant Wilson made a statement to a panel of the Defense Science Board on this subject and President Saxon presented a talk to the Computer Association of America in March on this subject. (Attachment 3)
Recommended Response to These Inquiries
After consultation with the General Counsel , we are prepared to provide the following advice about responses to these inquiries:
1. Campus administrators, faculty and staff need not respond to any questions about the visitor. The law does not require a response. It is, in our judgment, sufficient to let the agency know that the University is cognizant of its obligations under the law (the Constitution and applicable federal statutes and regulations) and is advising its faculty of their legal rights and responsibilities. We are attaching a sample letter that could be the basis of a response to such inquiries. (Attachment 2). It may be appropriate to respond further to any public inquiry by providing the inquirer nonpersonal information about the individual pursuant to campus policy implementing the Information Practices Act of 1977, e.g., the name, campus address and campus telephone number, department affiliation and status of the visitor.
2. If campus administrators, faculty or staff should receive a letter requesting that action be taken to restrict the activities of a foreign visitor or monitor his or her movements, the University would not accept such conditions because they are contrary to the premise of a University and cannot be implemented by the University. Any written response should be coordinated with the President's Office and the General Counsel.
3. If campus administrators, faculty or staff should be asked to apply for an export license as a condition for being the host to a foreign visitor or for any other reason, they should consult with the President's Office and the General Counsel. Such a request is highly unlikely, would be unprecedented, and with rare exception, would be considered by the University to be very improper and probably unconstitutional.
DRAFT: BC :mink
TO: Federal Agency
In response to your letter of ___________ we have been aware for some time of the concerns of the federal government that foreign scholars who participate in exchange programs not be provided technical data subject to export controls. We are continuing to inform our faculty of their legal rights and responsibilities under the Constitution and applicable federal statutes and regulations. Accordingly, we do not consider it necessary to complete the questionnaire. In the event any of our faculty raises particular questions to which we cannot provide sufficient guidance, we would appreciate your willingness to be of assistance.
We want to emphasize that all scholars invited to the University have the right freely to participate in all University activities open to the faculty generally.
UNIVERSITIES AND THE EXPORT OF TECHNOLOGY
INSTITUTE OF ELECTRICAL AND ELECTRONIC ENGINEERS
DAVID S. SAXON, PRESIDENT
UNIVERSITY OF CALIFORNIA
FEBRUARY 24, 1982
A. As you all know, some of the issues involved in the export technology have become points of serious disagreement between several agencies of the federal government and universities. Why? And what are these issues?
1. Since the latter part of the garter administration, foreign access to military and commercial technology in the united states has become a source of increasing concern to federal authorities.
2. Political and commercial rivals, so the argument goes, are benefiting from technical information that would be unavailable to them were the free flow of scientific information less free, information about technical advances in computer technology has proved especially valuable to nations whose research in that area lags behind ours, which means just about every nation in the world.
3. The government seeks to put a stop to this so-called "leak" of useful information.
4. There is a fair amount of experience within the federal government regarding ways to curb the export of things--equipment, commodities, devices--that foreign powers would find militarily useful, the government now proposes to extend the curbs on export of commodities to the export of unclassified technological knowledge and ideas and information.
B. Even if we all agree that certain kinds of information flow--"leaks"--are matters of concern, some fundamental questions remain: is it possible to do anything about it? If it were possible, should anything be done about it? Those questions seem to me the heart of the matter, Colonel Evans has given you a federal perspective on these questions; I would like to discuss them from a university perspective.
II. Why are universities worried?
A. The vagueness and broad sweep of the restrictions embodied in the international traffic in arms regulations (ITAR) and in the export administration regulations (EAR).
1. "Technical data" and "exporting" are so broadly defined that it is hard for scientists to know what is and isn't covered.
2. In the broad scientific and technical areas defined in the regulations, it is feared that without advance approval faculty could not conduct classroom lectures when foreign students were present, engage in the exchange of information with foreign visitors, present papers or participate in discussions at symposia and conferences where foreign nationals were present, employ foreign nationals to work in laboratories or publish research findings in the open literature.
B. The tension and difficulties generated by attempts to apply these restrictions are amply illustrated in the Stanford case, which you've probably read about in the newspapers.
1. The State Department recently ordered Stanford University to restrict the activities of a soviet expert in robotics scheduled to visit Stanford and several other universities this spring.
2. Among the restrictions imposed:
the visitor could not see any control units or programming systems for robots during his visit;
only "mechanical theories of robotic locomotion" could be discussed with him;
he could not be allowed to visit any industries, he couldn't see any documents--even unclassified documents--concerning any research sponsored by DoD unless the documents were already public;
he could discuss only research that has already been published in the open scientific literature.
3. You're probably familiar with the outcome: Stanford refused, and after some reflection the state department decided to withdraw most of the restrictions, an ironic note: according to the newspaper accounts, had any valuable technical information changed hands, it would have been from the soviet scientist to us--the USSR is described as being ahead of us in the field of robotics, I wouldn't know.
4. What happened at Stanford was embarrassing to our government, and it generated strong feelings on both sides. Given the ends the government wants to accomplish, it was all to no purpose anyway.
C. As the Stanford case also illustrates, universities are worried because attempts to impose restrictions on the exchange of scientific information on campuses reflect a profound misunderstanding of the nature and purpose of universities.
1. No recognition is made that academic scientific activity is, in principle and in practice, fundamentally and unalterably open and public, in a public university like the University of California, it is open not only in the practical sense but-in the legal sense as well.
2. In terms of logistics, universities are simply unequipped to monitor the activities of visitors, on or off campus or to keep them from talking to other scholars-- assuming universities were willing to do so.
D. I might add that our anxiety is not lessened by some of the statements that have issued from federal officials recently.
1. A brochure on soviet military power, published by the department of defense, contends that American-sponsored scientific exchanges and scientific communication practices work to the advantage of soviet military power.
2. Recent statements from government officials, in particular Admiral Bobby R. Inman's call on scientists to cooperate voluntarily with the federal government in reducing Russian access to unclassified research, suggest that scientists might have to submit papers on certain topics to the government for pre-publication screening. The implication: that failure to do so might lead to tougher restrictions than would otherwise apply.
3. Those who argue this position tend to cite the precedent of cryptanalysis--an agreement was reached last year among government, universities, and people working in the field under which scholars in code-breaking will voluntarily submit unclassified papers to the national security agency before publication, one of the architects of the agreement was the chancellor of the university's Berkeley campus, Ira Michael Heyman, he disagrees with the argument that the two situations are parallel.
--Cryptography is a single, narrowly defined area -- relatively few researchers.
--Not analogous to the sweeping controls now being proposed, Heyman was quoted in the L.A. Times: "in the cryptography circumstance, "he said, "I was willing to assume, and I still am, that the loss [to the nation] could be large and the amount that you are restricting people was very small, in the broader case, it seems to me it's just the opposite." (L.A. Times, 2/1/82).
E. Nor are universities the only ones worried about these developments.
1. James Harford, Executive Secretary, American Iinstitute of Aeronautics and Astronautics: ". . . Measures that prevent soviet access to unclassified literature also .prevent hundreds of thousands of engineers, scientists, and undergraduate and graduate students in the U.S., in allied nations and in developing nations from having access to that same material. Any new policy of restricting the flow of unclassified literature should be thought through very carefully lest it hurt not only the soviets but all society." (letter to N.Y. Times, 2/5/82).
2. A number of newspapers have published editorials on the subject. From the L.A. Times: "science thrives when scientific communications are unimpaired. It would be self-defeating if the American government's concern about what the Russians might learn served to inhibit the-free interchange of ideas in U.S. Science and technology. It would be self-destructive if our open society became semi-closed in the name of protecting freedom. (2/7/82)
III. Can anything be done about the export of technology?
A. Fortunately, there are signs that people within and outside government are thinking about the problem that now exists between universities and some federal agencies and searching for solutions.
B. One aspect of this is a recent initiative by several national educational associations and the department of defense, a joint DoD/university forum has been appointed, co-chaired by Richard Delauer, DOD's undersecretary for research and engineering, and by Donald Kennedy, president of Stanford University. I'm a member of that group, and in fact I had to miss its first meeting--which takes place today--because of my commitment to speak here.
C. What might be the outcome of this committee's work? I must confess that it seems to me we are confronted by more questions than answers.
1. Is it possible to cut off the kind of information flow we have been talking about?
--Export control of devices is easy compared to control of ideas, but even so it is difficult enough--not a trivial problem. About 15 years ago, I was a dean at UCLA, I helped arrange for one of the first groups to go to the USSR to work on experiments with a soviet accelerator. The logistics of the trip, which involved graduate students, families, as well as faculty, were terribly difficult, but they paled into insignificance compared to the negotiations over whether the team would bring a computer with them, and whether it would be left behind or brought home when they departed, eventually, and just barely, we worked it all out, the point is that controlling things is hard enough to do, even though little controversy surrounds that notion, how much more difficult it is to control ideas--and how much more contentious and controversial.
2. Would it be in the national interest to put a halt to the exchange of scientific knowledge?
--I am convinced not. It has been argued that attempts to restrict the flow of scientific information are based 0n a misunderstanding of how technological transfer takes place, particularly between two such different economies as ours and that of the USSR.
--Except that we know such curbs would be far from beneficial, we don't know precisely what effect they would have on American science. Will researchers tend to avoid fields in which information is closely controlled? Will the dampening effect on our own scientific effort be worth the presumed gains in keeping information away from others?
3. Finally, isn't the prohibitory approach essentially negative and self-defeating, and thus fundamentally against the American grain?
--It may be comforting to think that soviet military power is greatly enhanced by living off our technology, or that the ascendancy of japan in so many technical areas is a consequence of the easy transfer of American know-how. But are those thoughts as true as they are comforting? Don't they disguise our entrepreneurial and managerial shortcomings? Will they not bring a false sense of security that might ultimately prove far more dangerous than the ready access to technical information which is a by product of keeping science open and vital?
D. Assuming that some kind of regulation takes place--and just about everyone agrees that information with direct military application does indeed need to be controlled--it should in my view embody the following elements:
1. An explicit recognition 'of the importance of the unhampered flow of ideas to the vitality of science in the united states, and thus its contribution to maintaining this country's technological superiority.
2. A clear presumption that teaching and research are public activities, are overwhelmingly concerned with information about the general principles of science, and thus should not be controlled.
3. A provision that such research and development as simply must be controlled should be classified, or the research carried out by contract agreement.
4. A definition of "technical data" that makes it clear that its scope is properly and rigorously limited.
5. Some understanding that, when a government department is convinced that a foreign visitor will misuse technical information gained in this country, that visitor will be refused entry, to allow suspect people to enter the country, and then to expect universities to monitor their activities, makes no sense.
6. A provision that the government should have the burden of demonstrating that control is necessary, not as a pro-forma matter, but a real burden of proof.
7. I must add that I propose controls such as these with great reluctance, with a profound sense of unease, I am uneasy about actions which would limit our knowledge of what we ourselves are up to, actions which would reduce our interactions with foreigners, or actions which put barriers-in the way of those who seek to visit our country, such actions would make us at least a little less open as a society, such actions. Would take us at least a little way towards the kind of closed society I find repugnant, that I feel is fundamentally contrary to the American tradition.
Almost exactly a year ago I joined four other university presidents in a letter to the secretaries of commerce, state, and defense about this new and disturbing approach to the export of technology. As I said then:
"Restricting the free flow of information among scientists and engineers would alter fundamentally the system that produced the scientific and technological lead that the government is now trying to protect and leave us with nothing to protect in the very near future, the way to protect that lead is to make sure that the country's best talent is encouraged to work in the relevant areas, not to try to build a wall around past discoveries."
I submit that as a nation we are much better at pioneering new paths than at building walls, as far as science is concerned, we ought to keep it that way.