The Bureau of Industry and Security at the US Department of Commerce has promulgated an advance notice of proposed rulemaking that seeks to change American policy regarding deemed exports. A deemed export occurs when a foreign national “uses” technology subject to export restrictions while in the United States. The proposed rule would make a number of significant changes:
- Deemed export applications would be evaluated not just on country of citizenship and permanent residence, but on country of birth as well;
- Expand the definition of use of controlled technologies to any form of instruction on their operation, including access to manuals and, by a conservative reading, visual access to a machine or source code; and
- Exclude from the fundamental research exemption all research conducted under government sponsorship that is subject, either by regulation or prudential practice, to prepublication review.
Clearly, these changes would have a significant impact on the way that fundamental research is conducted in the United States. On Sunday, CRA submitted these comments to inform rulemakers about our objections to these proposals.
There are a number of problems with these proposals. First, it is unjust and anti-democratic to judge people based on their country of birth. The country of birth rule would create the perception that America is hostile towards foreign scientist and students at a time when their presence here is vital to our economy and national security. Worse, it would create castes of citizens so that, for instance, some British citizens would be more equal than others.
Second, the rule changes are confusing, especially as they relate to the word “use.” The report from Commerce’s Inspector General that gave rise to these proposed rule changes dilutes the definition of “use” to the point that it lacks meaning. Even seeing a machine could count as “use” under the report’s rules — but the burden of determining when “use” occurs would fall on researchers and their institutions.
Third, there would be tremendous costs to researchers, their institutions, and the Department of Commerce if these rules pass. The number of deemed export applications would skyrocket and institutions — still trying to understand SEVIS compliance rules — would have another bureaucratic hurdle to jump, which is especially detrimental as Congress continues to cut research funding.
Fourth, the proposal shows a misunderstanding of editorial review and how scientific research works. The proposal would remove the fundamental research exemption from any research that is internally vetted prior to publications. It is not hard to see that this turns editorial review on its head: the reason review takes place is to double-check that nothing sensitive is published, not because researchers expect to release sensitive information.
Fifth and finally, we have not seen any credible evidence that a problem exists. Much of the information protected by export rules is freely available on the internet, and some technologies — such as computers that exceed 190,000 MTOPS — are hardly cutting edge. We are unaware of any evidence that the current regulations create any serious threats to America’s ability to control the flow of sensitive information that would be remedied by the new provisions.
The American economy and our national security depend on the work done here by foreign scientists, engineers, and graduate students. As then-National Security Advisor Condoleezza Rice wrote in November 2001:
The key to maintaining US technological preeminence is to encourage open and collaborative basic research. The linkage between the free exchange of ideas and scientific innovation, prosperity, and national security is undeniable.
We couldn’t agree more.
Keep your eyes on this blog for news as it breaks. We don’t know when these rules will be accepted or rejected — it could be weeks or it could be months — but we will blog about it when a decision comes down.