Stanford's policy is that its classrooms and its research facilities shall operate in an open environment in order to facilitate and encourage the free exchange of ideas among students, faculty, other researchers, and collaborators. Research results are to be promptly published and widely disseminated.

The notable success of our research in general and of Stanford's collaborative research programs in particular owes much to our commitment to unfettered participation by persons of all nationalities. In support of this stance, Stanford declines to perform "secret" or "classified" research, and it proceeds in its research without inquiry into the citizenship or residency status of its scholars, faculty, or collaborators. Participation in any research project is not restricted to those holding U.S. citizenship.

The unique character of universities and the importance of fundamental research has historically been recognized in the export control regulations of the Commerce Department. That is, although commercial/defense technology and information may be subject to various controls on its export, the Export Administration Regulation (EAR) has long provided that university-based fundamental research in science and engineering that is widely disseminated to the interested community is excluded from export controls. Commerce has also applied this reasoning to exclude from its control "things" (technology) used in the performance of fundamental research. HOWEVER, we lose this exclusion to the extent we accept "controls in the national security" or proprietary research limits on publication.

But for this exclusion, universities would need an export license for each foreign student matriculated and each foreign faculty hired, due to a fiction known as the "deemed export." The regulations provide that an export can occur when a foreign national merely sees the item or information while on U.S. soil; this, or any similar communication of export-controlled technology or data to a foreigner in the US, is known in the regulators' parlance as a "deemed export."

Congress last year ^1. expanded the scope of State Department jurisdiction and limited that of the Commerce Department. Research activity that once was comfortably ensconced in the "Fundamental Research Exclusion" of the Commerce Department export regulations has been uprooted and made subject to the State Department's International Traffic in Arms Regulation (ITAR). In particular, scientific satellites, and all related data, components, software, parts, and materials are now on the Munitions List. Export of these items is tightly controlled. Consequently, a non-citizen's participation in research and development of a scientific apparatus that involves or relates to a satellite (such as the various components of GLAST, Gravity Probe B, or LISA) could be, under ITAR, a "deemed export" requiring an export license from the Department of State. If the non-citizen is from a country listed as "sensitive" or "terrorist exporting," that person could be barred by the State Department from participating at all.

The adverse impact on research at the University may be quite substantial. In fact, it is already being felt: In at least one instance, the Office of Sponsored Research has turned away a proposal that would have required licenses under ITAR for all participants.

Existing projects, such as Gravity Probe B and GLAST, may be unable to go forward under new NASA regulations requiring that all collaborators be ITAR-compliant (many of our scholars and collaborators are from listed countries). Even if not tied to NASA funding, other departments may be also affected. Examples include: Electrical Engineering research in radiation hardening of instrumentation, where instrumentation becomes a "defense article" under ITAR; the Medical School's use of lasers and sophisticated scanning devices in teaching; or any department doing research on klystrons of a certain bandwidth. In these cases, Stanford may find that foreign researchers are unable to participate.

Collaborative research programs must be enabled to continue. Some limited help for this actually resides in ITAR itself, but neither NASA nor the State Department seem willing to resort to its saving clauses ^2. in the current highly politicized anti-espionage environment. Similarly, no one is paying much attention to National Security Decision Directive 189 (1985), which states that classification (rather than export controls) is the appropriate vehicle for controlling federally funded research if national security is an issue.

In the short term, Stanford is attempting to make a case with the State Department and has requested a meeting with the Director of Defense Trade Controls. We are also proceeding on a parallel track with the Department of Commerce, seeking an Advisory Opinion to expand more fully on their view of the fundamental research exclusion. This support from Commerce may have some effect on the Department of State's analysis.

However, because other universities are wrestling with this issue as well, it would be useful if all could present a united and coherent position. A chorus of well-articulated objection, aimed at the appropriate audience, is essential.

Agreement among the major universities on what we will do and not do in the meantime is also essential. It could be helpful, for example, if research universities agreed on the following:

1. Not to accept special contract controls on foreign nationals in research agreements;
   
   
2. To require open, immediate dissemination of technical information about space research projects in order to continue to qualify for the public domain exception in ITAR, which would allow all foreign participants to participate in the research; and
   
   
3. To refuse to attend "US citizen only meetings" or to sign the DD2345, all of which undercut any fundamental research exemption and lead to fragmentation within the research community.

I have been in contact with CalTech, Penn State, MIT, UC (at San Diego and the Berkeley Space Lab), University of Arizona, and the University of Colorado, all of whom have some type of aerospace or space-based research activity adversely affected by the new jurisdictional mandate of the State Department. UC has gone the farthest down this road and, according to their Export Administrator (Barbara Yoder, in the Office of the President) is developing a written policy in support of the types of recommendations listed above. I am meeting with Ms.Yoder next week.

Submitted by:

Rachel Claus
University Counsel
SLAC
February, 2000