USACM Technology Policy Weblog

USACM and others criticize DOD export proposal

USACM and more than 100 other respondents recently filed comments with the Department of Defense criticizing its proposed changes to the Defense Federal Acquisition Regulation Supplement (DFARS). Among other things, the proposal mandates that all DOD contracts include a clause requiring contractors to

Create and maintain unique badges for foreign nationals and foreign persons employed by the entity;
Build segregated work areas for these persons; and,
Prevent these individuals from gaining any access to export-controlled technology without first obtaining a specific license, authorization or exemption, even if these individuals may be working under the longstanding fundamental research exemption.

USACM’s comments express its concern that the proposal, among other things, would place a costly new burden on research, discriminate against foreign researchers, and jeopardize the fundamental research exemption that has long promoted an open and fertile research environment. USACM is also worried that DOD, in issuing this proposal, has not given enough consideration to a similar advanced notice of proposed rulemaking issued recently by the Department of Commerce’s Bureau of Industry and Security. USACM and others were critical of this proposal, as well.

USACM’s full statement on the DOD proposal is available here.

Below, in no particular order, are some quotes from the comments of other groups interested in this issue:

Underlying the specific problems with the proposed rule, which our colleagues [at AAU] have analyzed in detail, is an outdated concept of national security: that we can protect ourselves by walling off the scientific enterprise from foreign intrusion. The Commission on Scientific Communication and National Security�a blue-ribbon commission of the Homeland Security Program of the Center for Strategic and International Studies, chaired by a former secretary of defense and the president of the California Institute of Technology�gets it right when it states, �In a world of globalized science and technology, security comes from windows, not walls.�
NAFSA: Association of International Educators

Open collaboration and the free exchange of ideas are fundamental to the culture of America�s research universities. It is through this culture of openness that U.S. research universities have not only thrived but also served as the fertile ground where innovative and cutting-edge ideas are brought to life. As written, the proposed rule would undermine the open and innovative atmosphere of our research laboratories.
American Association of Universities

DOD implementation of this requirement as proposed will adversely affect U.S. national security as universities will decline to perform critical research for DOD. The effect will be to discourage universities from conducting DOD-contracted fundamental research in order to avoid having to preclude the participation of foreign students and researchers in such research. U .S. science and engineering is critically dependent on the participation of foreign nationals. For example … [in] 2003 foreign nationals earned 38% of the science doctorates and 58.9 % of the engineering doctorates awarded by U.S. institutions.
Council on Government Relations

[The following] two bullets reflect the concerns expressed by the ONR S&T community:

* Harm the research base available to DoD by requiring researchers to assign graduate students, who are approximately 70% foreign, by citizenship rather than expertise. The research base would be further undermined by restriction of a prime motivation for conducting world class research which is world wide recognition. In fact, publishing is essential for advancement in an academic career; therefore, the best researchers would be driven away from DoD research, as would the best institutions.

* Badging requirement is more onerous in a university setting. The proposed requirement set forth at proposed DFARS Part 252.204-70XX (d)(1) is particularly chilling in a university research setting where the free and open exchange of information and ideas provides the synergy that moves the science forward. The majority of research performed within universities is accomplished by graduate students. These students learn at least as much from other students as they do from their professors. Graduate students isolated from their fellows by working on DoD research would be severely handicapped.
Office of Naval Research

The proposed rule requires that access control plans be created that include segregated work areas and unique badging requirements for foreign nationals and foreign persons who may have access to export-controlled information and technology. This requirement fails to take account of the broader mission and goals of institutions of higher learning. These institutions rely on academic freedom, scientific openness, and an unrestricted dialogue between teachers and students, as well as within student cohorts, to nurture the flow of innovative ideas that ultimately lead to the development of critical technologies.

Aside from the obvious issues of the additional costs associated with creating a segregated work environment, the badging requirement would appear to single out and perhaps stigmatize foreign students (even from allied nations).
American Association for the Advancement of Science (AAAS)

David posted this at 10:15 am ET | Filed in Research, Security, ACM/USACM News | Permanent Link |

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