National Security Law

Long-Standing Policies on Fundamental Research Remain in Place, But National Security and Technological Competition Concerns May Bring Changes, Indirectly or Directly

(This post is excerpted from MassPoint’s November 25, 2018 update on a new rulemaking process to regulate exports of emerging technologies. As discussed below, fundamental research is excluded from the rulemaking process. Given growing concerns about alleged Chinese “academic espionage” at American universities and transfers to China of U.S. scientific and technological information and know-how, including through Chinese students, researchers, and others in fundamental and research pipelines, this excerpt is re-posted separately as foreign (particularly Chinese) access to and participation in U.S. fundamental research may be curbed by non-export controls means.)

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On November 19, the U.S. Department of Commerce, Bureau of Industry and Security (“Commerce”) published an Advance Notice of Proposed Rulemaking (ANPRM) on the “Review of Controls for Certain Emerging Technologies.” The ANPRM invites public comment to identify “emerging technologies” that are essential to U.S. national security and therefore potentially subject to export control.

The ANPRM raises diverse legal, regulatory, policy, and commercial issues that cut across sectors and industries. Commerce seeks to advance national security goals without harming the United States’ capacity to lead in science, technology, engineering, and manufacturing. Fundamental research is excluded from Commerce’s rulemaking, but foreign participation in U.S. fundamental research may be curbed by other means. Universities and other academic institutions have an interest in closely following– if not commenting on– the ANPRM and related developments. At minimum, the concerns and policy objectives that are driving the ANPRM process are relevant to proposed and recent actions taken to curb “academic espionage” and other deemed threats involving American academia.

  • The ANPRM states that “Commerce does not seek to expand jurisdiction over technologies that are not currently subject to the EAR, such as ‘fundamental research’ which is generally defined in § 734.8 of the EAR as “basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community.”
  • The exclusion of fundamental research from Commerce’s export control jurisdiction is consistent with long-standing U.S. policy, as set forth in President Reagan’s National Security Decision Directive No. 189 of September 21, 1985, on “National Policy on Transfer of Scientific, Technical and Engineering Information” (NSDD 189).Under NSDD 189, the mechanism for limiting dissemination of fundamental research is classification.
  • While Commerce does not seek at this time to restrict the export of fundamental research, the Trump Administration and others have considered and likely will continue to consider non-export control measures to directly or indirectly prohibit or limit foreign access to or participation in U.S. fundamental research.
  • Further, concerns among some Administration officials, Congress members, and policy influencers about “academic espionage” and “non-traditional collectors” of sensitive information are propelling action to curb or increasingly scrutinize foreign nationals’ access to and participation in U.S. technological development in academic and research settings. A recent example is the Department of Justice’s “China Initiative” to combat China’s “economic espionage” and other “national security threats” through, inter alia, the development of an “enforcement strategy concerning non-traditional collectors (e.g., researchers in labs, universities, and the defense industrial base) that are being coopted into transferring technology contrary to U.S. interests.”
  • It is conceivable that the Trump Administration, with some bipartisan support in Congress and elsewhere, could modify or replace existing policies on fundamental research, including, perhaps, NSDD 189.

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