Export Controls and the Tensions Between Academic Freedom and National Security

Abstract

In the U.S.A., advocates of academic freedom—the ability to pursue research unencumbered by government controls—have long found sparring partners in government officials who regulate technology trade. From concern over classified research in the 1950s, to the expansion of export controls to cover trade in information in the 1970s, to current debates over emerging technologies and global innovation, the academic community and the government have each sought opportunities to demarcate the sphere of their respective authority and autonomy and assert themselves in that sphere. In this paper, we explore these opportunities, showing how the Social Contract for Science set the terms for the debate, and how the controversy turned to the proper interpretation of this compact. In particular, we analyze how the 1985 presidential directive excluding fundamental research from export controls created a boundary object that successfully demarcated science and the state, but only for a Cold War world that would soon come to an end. Significant changes have occurred since then in the governance structures of science and in the technical and political environment within which both universities and the state sit. Even though there have been significant and persistent calls for reassessing the Cold War demarcation, a new institutionalization of how to balance the concerns of national security and academic freedom is still only in its nascent stages. We explore the value of moving from a boundary object to a boundary organization, as represented in a proposed new governance body, the Science and Security Commission.

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Notes

  1. 1.

    The 2004 National Research Council report on Biotechnology Research in an Age of Terrorism, recommended that the Department of Health and Human Services create a National Science Advisory Board for Biosecurity, which was created within the National Institute of Health later that year. See further http://oba.od.nih.gov/biosecurity/biosecurity.html.

  2. 2.

    It is known that by 1985—when NSDD-189 was issued—the Contract’s authority was already in decline but it is much less clear what type of regime is replacing the Contract (Branscomb1993; Guston 2000; Smith 1990; Stokes 1997).

  3. 3.

    Internal Security Act of 1950 (the McCarran Act); the Patent and Secrecy Act of 1951; and the Immigration and Naturalization Act of 1952 (the McCarran-Walter Act).

  4. 4.

    Committee on Loyalty in Relation to Government Support of Unclassified Research (1956) and Defense Science Board Task Force on Secrecy (1970).

  5. 5.

    Published by the Center for Strategic and International Studies’ Commission on Scientific Communication and National Security.

  6. 6.

    It is worth noting that 1985 also saw much debate about the ability of the government to stop sales of technology after a license had been approved. Just as the fundamental research exclusion carved a space for basic scientific research, so too the revised Export Administration Amendments Act of 1985 enforced the idea of “contract sanctity” to omit from control most previously agreed contracts for technology transfer (Hufbauer et al. 1990, 77).

  7. 7.

    For ITAR exclusions, see 22 CFR 120.10(a)(5), 120.11. See also: International Traffic in Arms Regulations: Exemptions for U.S. Institutions of Higher Learning, 22 CFR Parts 123 and 125, Federal Register, Mar. 29, 2002, v. 67, no. 61, pp. 15099–15011. For the EAR exclusion, see 15 CFR 734.3, 734.8 and 734.11.

  8. 8.

    The Mansfield Amendment technically only lasted one year. The following year, its text was included in Section 203 of the FY 1970 Military Authorization Act (P.L. 91–121), but modified to call for “potential relevance” to military functions. The Amendment, however, was used as a political tool after the withdrawal from Vietnam to justify restrictions on military R&D funding. Our thanks to Judith Reppy for pointing this out in an earlier draft. See also Davey (1986).

  9. 9.

    Defense Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI) Subpart 204 “Administrative matters” section 73 “Export-controlled items” subsection 02 “General” item (3)(ii). Available here: http://www.acq.osd.mil/dpap/dars/dfars/html/r20080721/204_73.htm.

  10. 10.

    For a discussion on the comments received and the DoD’s justification for removing the text, see the Federal Register: April 8, 2010 (Volume 75, Number 67), pp. 18031–18034.

  11. 11.

    Public Law 105-261, Sect. 1511–1516.

  12. 12.

    15 CFR 772.

  13. 13.

    Federal Register: March 28, 2005 (Volume 70, Number 58), Proposed Rules, Page 15607–15609, http://www.gpoaccess.gov/fr/index.html.

  14. 14.

    Email conversation between S. A. W. Evans and US Commerce Department Official, 18–19 May 2009.

  15. 15.

    Replies are available to view on BIS’s electronic Freedom of Information web-page: http://efoia.bis.doc.gov/pubcomm/revision-to-the-deemed-export-regs-2005/final-document.pdf.

  16. 16.

    The DEAC was a Technical Advisory Committee within the Department of Commerce. It did not have an affiliation with the National Academies of Science.

  17. 17.

    Arguing against a linear model of innovation, NRC’s 2005 report on Assessment of Department of Defense Basic Research states that “DOD should view basic research, applied research, and development as continuing activities occurring in parallel, with numerous supporting connections throughout the process” (2).

  18. 18.

    Formerly the General Accounting Office.

  19. 19.

    Established through the Budget and Accounting Act of 1921, Sec. 312(a), 42 Stat. 25.

  20. 20.

    Congress has failed to renew the Export Administration Act every year save one (2001) since 1994. Instead, the export control system of the United States has remained in effect by the President each year declaring a national emergency and using his powers under the International Emergency Economic Powers Act (IEEPA) to extend the EAA’s authorization.

  21. 21.

    Currently, Department of Commerce handles licenses for dual-use technology and the State Department handles licenses for military technology.

  22. 22.

    Commerce maintains the dual-use list (the Commerce Control List), and State maintains the International Traffic in Arms Regulations munitions list (ITAR).

  23. 23.

    ETRAC’s charter may be found here: http://tac.bis.doc.gov/etracchart.htm. Minutes of the meetings may be found on the BIS site: http://tac.bis.doc.gov/.

  24. 24.

    Phone conversation between S. A. W. Evans and Department of Commerce’s official liaison for ETRAC, 30 March 2012.

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Acknowledgements

We would like to thank Judith Reppy, who reviewed an early draft and provided very useful comments. Our collaboration came out of “The Rightful Place of Science?” workshop at Arizona State University hosted by the Consortium for Science, Policies, and Outcomes in 2009.

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Correspondence to Samuel A. W. Evans.

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All authors contributed equally to the writing of this paper.

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Evans, S.A.W., Valdivia, W.D. Export Controls and the Tensions Between Academic Freedom and National Security. Minerva 50, 169–190 (2012). https://doi.org/10.1007/s11024-012-9196-4

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Keywords

  • Export controls
  • Academic freedom
  • Social contract for science
  • Boundary object
  • Boundary organization