Export controls: US wants to export-license fundamental research again

Sun May 8 20:47:25 EDT 2005

The export control snakes are trying to crawl out of their snakepit
again.  By tiny wording changes, they're trying to overturn the
exemptions that protect First Amendment activity from being restricted
by the export controls.  We have until May 27 to file written
comments.

Remember that the government "voluntarily" changed the export controls
after losing the Bernstein case on First Amendment grounds.  Now the
hawks want to change them back.  They've been quietly writing up
"Inspector General" reports for years.  Here's the latest:

  http://www.oig.doc.gov/oig/reports/2004/BIS-IPE-16176-03-2004.pdf

Here's the proposed regs:

  http://www.regulations.gov/freddocs/05-06057.htm

Send comments to:

  To: scook at bis.doc.gov
  Cc: gnu at toad.com (please)
  Subject: RIN 0694-AD29

By replacing an "and" with an "or", they want to require every
university, research lab, and company to be required to segregate
foreign students, researchers, scientists, and staff from the Honest
Amurricans.  This is to keep these evil furriners away from fast
computers, oscilloscopes, and even GPS systems -- even if the
foreigner is doing fundamental research protected by the First
Amendment.  This includes censorship of the *manuals* for anything
export-controlled.  It's the same old definition game they played with
crypto exports: "technology" means anything, and "export" means "let a
foreigner see", therefore the ban on "exporting technology" translates
to: foreigners can't see anything.  Even in this country.

The Commerce Dept. needs to hear, loud and clear, that if the
regulations restrict fundamental research, the REGULATIONS should be
changed, not the fundamental research.  The Inspector General who
recommended that the export controls be tightened needs to be reminded
that he supposedly works for a free country.

I suggest citing the fact that a US appeals court decided that the
export controls were a prior restraint on free expression and violated
the First Amendment when applied to scientists and educators doing
fundamental research (Bernstein v. USDoJ):

  http://www.eff.org/Privacy/Crypto_export/Bernstein_case/Legal/19990506_circuit_decision.html

(later withdrawn by the court due to Justice Dept. trickery).  A later
appeals court held that the First Amendment protected the publication
of software from the export controls, though it did not decide what
level of scrutiny was appropriate: Junger v. Daley, 209 F.3rd 481 (6th
Cir. 2000):

  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=6th&navby=case&no=00a0117p

In the recent shenanigans, Commerce Dept. inspectors visited NIST and
NOAA, and found that even though both agencies are doing "fundamental
research", the inspectors think these agencies should have to
segregate foreign researchers and get "deemed export" licenses for
their research.  They were shocked to discover one German machine tool
at NIST's Manufacturing Engineering Lab, and two fermenters at
universities, that foreigners aren't allowed to have.  They were also
shocked to find that the operating manual for the machine tool was
right there next to the machine!  They suggested that if a foreign
resercher MERELY READ the manual, that an illegal "deemed export"
would have occurred.  Reading NIST's response on PDF pages 55-59 is
very enlightening; the inspectors' report deliberately twists the
situation to make it look far worse than it was.  It reminds me of the
Wen Ho Lee case.

(By the way, the inspectors censored half a sentence from their own
report on PDF page 42, numbered page "32" at the bottom of the page.
The text behind the censorship reads "In addition, the 5-axis machine
tool is located immediately to the right of the entrance to the
machine shop and is not segregated from other equipment."  The report
also included two uncensored color photos of the machine, in case you
were a foreigner wondering how to identify it.  It's so comforting to
know that highly competent security professionals like this are in
charge of censoring all scientific research in the country.)

The inspectors also claim that because the Bush White House forced a
"pre-review" policy on publication of government scientific research
"that might help terrorists", the First Amendment "fundamental
research" definition no longer applies to NIST -- even though the
pre-review has never turned down a paper yet.

The Inspector General's report never once mentions the First Amendment.
E.g. on page 23, it says:

  "The rationale for eliminating foreign nationals with permanent
  resident status from deemed export controls appears to have been that
  persons who hold such status have made a committment to the United
  States and most likely will not return home."

Actually, the issue is that permanent residents have the same
First Amendment rights that citizens do.  This includes freedom of
inquiry (the right to do research) and the right to publish the
results.  These inspectors instead seem to follow the Lt. Calley "burn
the village in order to save it" model.

The vast majority of the "deemed exports" have been in computers (661
in 2003), telecomm and information security (357), and electronics
(338).  In 2003, no other category had more than 80 licenses applied
for.  This is all about computers and crypto -- it's not about nuclear
weapons (0 in 2003).

The vast majority of the foreigners involved came from China (367),
Russia (238), and India (83), out of 846 total.  (These stats are on
page 15.)

The inspectors, and the Commerce Dept., also propose a rule that says
the country where you were born trumps your current citizenship.  The
export regs are different for each country, so someone who fled Hong
Kong and took up Canadian citizenship would be considered Chinese
under these rules.  The racist implications seem to be strongly
focused on denying access to high-tech equipment to people of Chinese
and Muslim descent when they're studying or working in the United
States.

	John Gilmore
	Electronic Frontier Foundation

Forwarded-By: David Farber <dave at farber.net>
Forwarded-By: Jennifer Mankoff <jmankoff at cs.berkeley.edu>
Subject: Urgent: Proposed Dept. of Commerce rules pose threat to research

Dear Chairs of PhD-granting Physics Departments,

I am writing to alert you to a possible threat to research in your
department and to urge you and your faculty to write to the Department
of Commerce (DOC) in response to its "Advance notice of proposed
rulemaking" published in the Federal Register on March 28, 2005. The
notice calls for comments that must be received by May 27, 2005. As
discussed below, the leadership of the American Physical Society feels
this issue is so important that you should seek to provide thoughtful
and accurate responses by your university administration, your
department and individual faculty who might be affected by the
recommended changes. We believe that your comments can make a
difference.

The proposed rulemaking by the DOC is a response to recommendations
presented by the Department's Inspector General. Implementation of
these recommendations would cause two major changes:

1) The operation of export-controlled instrumentation by a foreign
national working in your department would be considered a "deemed
export", even if that person were engaged in fundamental research. As
a consequence, a license would be required for each affected foreign
national (student, staff or faculty member) and for each export
controlled instrument. Typical export-controlled instruments are
high-speed oscilloscopes, high-resolution lithography systems,
high-end computers and GPS systems. The situation is complicated by
the fact that the list of instruments is different for each country.

2) U.S. organizations would be required to apply for a deemed export
license for students, employees or visitors who are foreign nationals
(but not U. S. naturalized citizens or permanent residents) and have
access to controlled technology if they were born in a country where
the technology transfer in question would require an export license,
regardless of their most recent citizenship or permanent residency.
For example, transfer of technology to a Chinese scientist who has
established permanent residency or citizenship in Canada would be
treated, for export licensing purposes under the proposed guidelines,
as a deemed export to a Chinese foreign national. (The list of
export-controlled instruments for Chinese nationals is particularly
extensive.)

The Department of Commerce officials who have the responsibility for
developing new policies and practices in response to the Inspector
General's recommendations are anxious to determine what the impact of
implementing those recommendations would be. They must seek a balance
between increases in national security that might result from the
implementation of the new rules and the decrease in national security
that would result from negative impacts to US research and
development.

In initial discussions by the APS Panel on Public Affairs (POPA) it
was thought likely that consequences would be: a) research would slow
down significantly due to the need to obtain licenses for each foreign
national and, particularly, Chinese student, staff member, postdoc, or
faculty member using export controlled instrumentation. We believe
that a separate license would have to be obtained for each instrument.
In this regard, it should be noted that the relevant DOC office has
the staff to handle about 800-1000 license requests per year.  Present
times to process a license request are typically 2-3 months. b)
instruments would have to be secured to ensure that those who do not
have the required license could not use them. c) the number of Chinese
and other foreign national students would decrease markedly as their
"second-class" status on campus became apparent, thus ultimately
weakening the nation's science and technology workforce. d) the
administrative costs of research would rise markedly. e) national
security would ultimately be weakened as a consequence of a loss of
leadership in economic and technology development.

We urge you, therefore, to have faculty members who are
experimentalists respond to the DOC's notice by estimating, as
accurately as possible, the impact on their research. This would
involve a determination of which instruments are probably export
controlled for each nation "represented" by foreign nationals in the
laboratory. (The person responsible for export control administration
in the institution should be able to help with this.) You should then
send the DOC either a comment from the department as a whole or,
better yet, individual comments, which state the number and types of
instruments involved, the number of students, staff or postdocs from
each affected nation and the likely number of licenses to be requested
if the recommendations are implemented. It would also be helpful if
comments contained a brief description of the type of research
performed in the laboratory. Estimates of the consequences of three
months delays in research for each new foreign national student and
each new export controlled instrument will also be valuable.

You may regard this as rather burdensome, but it is our belief that
implementation of the Inspector General's recommendations will be far
more burdensome. Therefore, we hope that you will get every
experimentalist to reply.

To submit your comments, you can go to www.regulations.gov and enter
the Key Phrase "Revision and Clarification of Deemed Export Related
Regulatory Requirements." You can also view the proposed new
regulation at this site and note what a large effect changing an "and"
to "or" can make.

Best regards,
Judy Franz
Executive Officer
APS

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