Law’s Unintended Chilling Effect

A seemingly simple change in federal law has crippled space-related research at universities across the country, barring many foreign exchange students from participating in research projects and forcing some universities to look warily at grants offered by industry and the government.

Scientists say the law and subsequent federal regulations bar foreign nationals from all but the friendliest countries from participating in research involving satellites, unless the individuals are specifically “licensed” by the U.S. State Department.

Commercial satellite research was transferred under the law from the Commerce Department to the State Department and placed under the federal International Traffic in Arms Regulations.

Thus, any university that engages in research concerning almost any aspect of space operations finds itself in the “munitions” industry, anathema to institutions such as Stanford University, which has banned classified research since 1969.

There is no indication that the federal government wants to hinder university research in any way, and one State Department official blamed it all on a misunderstanding. Provisions in the department’s regulations specifically exclude from the controls “fundamental research” that would normally be made public, but scientists say it hasn’t been working out that way.

The problem is apparently an unintended result of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999. The law followed alleged security violations in recent years, but its impact has been far beyond what anyone imagined just a few months ago.

“It wasn’t intended to have this result,” said Debra Zumwalt, acting general counsel at Stanford. “There clearly was some concern about national security, but I think it’s just been taken a step too far.”

Some of the results have bordered on the bizarre. The law, for example, bans the “export” of research on “spacecraft, including communications satellites, remote sensing satellites, scientific satellites, research satellites, navigation satellites, experimental and multi-mission satellites” to “sensitive” countries. All of those satellites are now considered “significant military equipment,” even if they are obviously designed for basic scientific research.

But export does not require sending the information overseas. Letting a graduate student from China participate in a project qualifies as exporting. And there is no clear definition of what constitutes a “sensitive” country. One scientist from Ireland, for example, had to be barred from the room when an instrument he had developed earlier was bolted onto a research satellite.

At this point, no one seems clear on just what action might violate the law, but the consequences are very clear. Violation can lead to imprisonment and/or a fine.

“The onus should not be on us poor researchers to figure all that out,” Bradford Parkinson, professor of aeronautics and astronautics at Stanford, lamented in a recent meeting of the university’s Academic Council Committee on Research. “There should be some broad guidelines that we can follow, and if we make an inadvertent error in judgment, the penalty should not be instantly going to jail or losing our family fortunes.”

But academicians are not the only ones who are confused over the issue. In a May letter to presidential science advisor Neal Lane, three top educators noted that varying interpretations of the law by several governmental agencies, including the National Aeronautics and Space Administration, has led to “more confusion, not clarification.”

The letter says academic scientists are now afraid even to discuss possible projects with foreign collaborators, much less travel overseas for consultations, and many projects have been brought to a screeching halt in fear of violating the law. The letter was signed by the presidents of the American Assn. of Universities, the Council on Government Relations and the National Assn. of State Universities and Land Grant Colleges.

Oddly enough, this is not the first time the issue has arisen. Similar restrictions threatened to curtail basic research in the 1980s, and it took an executive order from President Reagan to end that “previous bout of nonsense,” Stanford President Emeritus Donald Kennedy said in an essay in a recent issue of the university’s faculty newspaper.

That order excluded “fundamental scientific research” that was intended to be made public. Without that order, professors would even have been forced to police visiting scientists from other countries.

State Department regulations also exclude “fundamental research,” but it’s not quite clear what that means now because the new controls are so much broader than the old, and they are somewhat intimidating. That has had a significant impact on the relationship between universities and funding agencies, including both the federal government and the private sector, according to Robert N. Shelton, vice provost for research for the University of California system.

“What we are seeing is a higher level of control and detailed reporting [including requests for lists of all participants in a project and their nationalities], and the clear implication is you can’t have non-U.S. citizens involved in this, and you can’t discuss your work with non-U.S. citizens,” Shelton said.

Traditionally, the government’s way of restricting access to security-related information is to classify it. But the new regulations don’t apply to just classified material. Anything deemed “sensitive,” whatever that may mean, is covered.

It might seem that a little common sense could clear this up quickly. But no one seems eager to try to ease restrictions at a time when terrorism is on the rise and there is broad public concern over national security.

So professors are being asked to interpret the law correctly or face the consequences, and some are playing it very conservatively.

One professor, before giving a presentation at a scientific symposium, reportedly demanded to know if there were any foreign nationals in the audience.

And that, said Stanford’s Zumwalt, is contrary to everything the university stands for.

“We believe in the openness of the research and the ability of all of our students and faculty to be able to participate,” she said.

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Lee Dye can be reached at leedye@gci.net.