The inevitable tension between national security and the free exchange of technical information is one of the enduring, endlessly debated issues in engineering and science. And for good reason: almost any significant advance, from the splitting of the atom to the development of powerful encryption software, has the potential to do great damage as well as good. Now, a year and a half after the devastating 9/11 attacks, and in the face of mounting threats from countries like North Korea, all the old arguments about research and openness are getting their most spirited airing since the end of the Cold War a dozen years ago.
Unfortunately, an edgy, fearful atmosphere in Washington is intensifying a rush to control the conduct of research and development in ways that will overreach, and quite possibly damage, the very security we are attempting to protect. For example, under the USA Patriot Act, passed shortly after 9/11, the U.S. Department of Justice and others are trying to restrict public access to information that isn't even sensitive enough to be officially classified. And several government agencies are trying to force the researchers with whom they have contracts to submit their papers for review before publishing them and to bar non-U.S. citizens from working on some projects.
While officials propose new restrictions and regulations, some old ones are being more widely applied. Of these, the impact of the International Traffic in Arms Regulations (ITAR) on the space sciences shows the inherent difficulty of imposing rigid regulations on the dissemination of technical knowledge--and the self-defeating effects on national security of attempting to do so.
First, a little background. In the 1990s, two U.S. satellite manufacturers, Hughes Electronics Corp. (El Segundo, Calif.) and Loral Space & Communications Ltd. (New York City), gave the Chinese government information in connection with a failed satellite launch. This data was judged to be of value in the Chinese ballistic missile program. The U.S. Congress reacted by transferring responsibility for controlling export of all commercial satellites from the Department of Commerce, which handles commercial trade, to the Department of State, which licenses exports of a more sensitive nature through the relatively cumbersome ITAR regime.
The official tally of the broad classes of items whose export is controlled by ITAR is known as the "munitions list." Since March 1999, in accordance with Congress' order, it has included all scientific satellites. Items on the munitions list cannot be exported from the United States without a license, which takes at least several months to obtain. Under ITAR, you need a license before you can even discuss items on the list with non-U.S. citizens, including students.
Fundamental research is excluded from coverage under ITAR. But there are often ambiguities about what projects qualify as fundamental research, especially when the research is to be carried out with technologies that are on the munitions list-like satellites. Obviously, this ambiguity impinges heavily on space sciences because most major research depends on satellites.
The State Department has long resisted efforts to issue general guidelines so that researchers could know in advance whether their projects fall under ITAR. But after persistent efforts by a number of universities and by NASA, as well as support from some in the White House, and after two years of internal government negotiations, the State Department did finally issue ITAR amendments in March 2002.
But the primary change is almost comical in its attempt to correct one problem and, in so doing, create others. It allows U.S. researchers and technologists to exchange, without first securing a license, any published, publicly available information with nationals of countries in the North Atlantic Treaty Organization (NATO) and a few other allied countries.
Whatever small benefit this change might engender in relations between the United States, European countries, and the European Space Agency is more than offset by problematic new requirements. For example, if information is exchanged with scientists at European universities or government research institutions, the U.S. university will have to obtain commitments that the information will not be passed to non-NATO countries or individuals. In addition, there is likely to be pressure within U.S. universities, and from sponsors, to favor nationals from NATO countries over others. I trust that these requirements are unacceptable to U.S. universities.
Even when a project is exempted from ITAR, another part of the regulations may nevertheless mandate that a license is required. The operative caveat here involves the nebulous concept of "defense services," which are defined as assistance to non-U.S. citizens engaged in the processing or use of "defense articles"--items on the munitions list. That includes the "design, development, engineering, manufacture, operation, demilitarization, destruction, processing or use of defense articles." Any "technical data" relating to these is also included. In fact, ITAR can easily be interpreted as being all-encompassing in the space sciences arena. At any rate, it is almost always impossible to come to any conclusions without consulting lawyers.
One point worth noting is that it is irrelevant whether or not the information involved in a project is classified. In other words, information that is freely available everywhere may still be "controlled," in the State Department's alternative, Kafkaesque universe, by ITAR. That's because as far as State is concerned, sensitivity of information is determined by whether it falls within a general category on the munitions list, not whether it is classified. Individuals, universities, or corporations found to have violated ITAR are subject to criminal penalties, including imprisonment and fines that can reach into the millions of dollars. There have been cases of legal investigations and fines of corporations, but none so far, to my knowledge, of professors or universities.
ITAR has hurt the U.S. satellite industry, mainly through lost market share. It has also battered the academic space-science community. Proposed projects have been delayed; some talented non-U.S. scientists have decided not to try to work with their counterparts in the United States; non-U.S. graduate students in U.S. universities have been excluded from some scientific meetings related to their projects; discussions at some international scientific meetings have been constrained or aborted; and university-industry collaborations have been disrupted.
For one, Stanford University has had several projects with aerospace companies canceled or delayed. There are examples, too, of non-U.S. graduate students who, after developing software and other technologies for scientific satellites, were then barred from seeing their own work because it had been labeled ITAR-controlled. In some cases, fear of possible consequences, or simply of complications in relations with graduate students, has led faculties to withdraw from projects that would have otherwise continued unimpeded.
If the regulations clearly contributed to national security, I wouldn't be so opposed to them. But they are crafted and implemented without any real understanding of the rationale underlying the values of the scientific and engineering communities. Nor do they take into account the consequences of these restrictions on the productivity of the nation's research institutions. By discouraging many fine professors and students from working in the aerospace arena, disrupting working relationships between industry and universities, and discouraging collaboration between U.S. and non-U.S. scientists, they have clearly harmed rather than helped national security.
Overall, the experience so far shows the danger of trying to design regulations for technological research in an environment where all values are subordinate to national security and where the regulations are likely to be administered by bureaucrats with little appreciation for the benefits that a vibrant scientific and technological enterprise brings to national security.
Unfortunately, the signs are that things are getting worse. For example, until recently the U.S. Department of Defense was seriously considering a plan to require clearance of any paper based on research it sponsored before the paper could be published. Several other agencies have attempted to insert contract clauses to that effect, and the Massachusetts Institute of Technology recently turned down a contract from the National Security Agency that insisted on review prior to publication. Meanwhile, it's likely that similar new regulations will emerge from the Department of Homeland Security.
Other signs of trouble include severe delays in issuing visas to non-U.S. students from certain countries and strong indications that visa policy in the future will prohibit these students from enrolling in certain fields of study at U.S. universities. Moreover, new initiatives, such as the Terrorism Information and Prevention System of the Department of Justice, encourage U.S. citizens in various industries to report "unusual" activities of their neighbors or clients. Such programs are being formulated in a climate that ignores many of the bedrock values on which the United States itself was founded.
Of course, restrictions on publication or sharing of information are sometimes necessary. When they are, they must be designed intelligently and in consultation with the affected industry and universities. They must have a clear and realistic purpose, and be formulated in the realization that the nation, and its technical and scientific establishments, have been incredibly well served by maintaining open channels of communication. We must not lose sight of the fact that the strength of science and technology in the United States is one of its greatest assets in the fight against terrorism.
The only viable policy is one that subjects only the most critical information to the suffocating embrace of ITAR or similar regulations. But that is best settled by an open debate involving all affected parties. It is not a decision to be made behind closed doors, in a climate of foreboding, by government officials with limited appreciation of the costs that will be incurred.
EUGENE B. SKOLNIKOFF is an Emeritus Professor of Political Science at the Massachusetts Institute of Technology in Cambridge. He has long focused on the political changes brought about by rapid scientific and technological change. He was a Rhodes Scholar, and served in the Office of the Science Advisor in the White House in the administrations of Dwight D. Eisenhower, John F. Kennedy, and Jimmy Carter. Originally educated as an electrical engineer, he was a member of the American Institute of Electrical Engineers, one of the IEEE's predecessors.