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[Published originally in the November 2005 edition of Computing Research News, Vol. 17/No. 5]
Restrictions on Foreign Scientists Could Threaten U.S. Research
Commerce and Defense Propose New Regulations for Research Institutions
Second, critics argued, the rule changes are confusing, especially as they relate to the word “use.” The report from the Department of Commerce’s Inspector General that motivated the proposed change provides a broad enough conception of the word “use” that commentators suggested “even seeing a machine could count as ‘use’” and that the burden of determining when “use” occurs would fall on researchers and their institutions.
Critics also cited the potential costs to researchers, their institutions, and even the Department of Commerce should the rules be accepted. The number of deemed export applications would skyrocket, they said, placing undue burdens and hurdles on institutions. Many cited what they believed was a misunderstanding on the part of the Commerce IG and the BIS of the role of editorial review and how scientific research works. Many also wondered whether the proposed regulations attempt to solve a problem that does not exist to any significant degree.
Lastly, critics of the BIS proposed rule, including the official responses of the National Institutes of Health and the National Science Foundation, noted the important contribution of foreign scientists, engineers, and graduate students to the U.S. economy and national security and raised concerns about the effect of the proposed rule on perceived environment for foreign researchers in the U.S. In particular, the agency critics noted that the proposed rule also appears to violate a still operational Reagan-era National Security Decision Directive (NSDD-189) exempting all unclassified fundamental research from restriction. NSDD-189 indicates that the appropriate method for limiting the dissemination of sensitive fundamental research is to classify it, forbidding any sort of additional “sensitive but unclassified” restriction.
The Department of Defense announcement concerns those institutions performing contract work for the agency, requiring contractors to establish an export control system for potentially covered technologies and requiring badges for foreign-national employees. Comments on the DOD proposed rule are not due until after this issue of CRN goes to press, but many of the same groups who responded to the BIS rulemaking are expected to comment on the DOD rule. Of significant concern to the academic community is what is not included in the DOD rule, and that is any mention of NSDD-189 and the fundamental research exemption. Though the Department has indicated it does not anticipate applying the proposed rules to fundamental research environments, the lack of explicit language exempting fundamental research is troubling to the academic community.
But perhaps more troubling to the academic community is the signal that these announcements, along with post-9/11 tightening of visa rules and regulations, send to the global community. For a country so dependent on the influx of the world’s best minds to help drive its innovation, are we now making the research environment that was so appealing to those innovators more hostile?
In testimony before the House Judiciary Subcommittee on Immigration, Border Security, and Claims in September, which was examining “Sources and Methods of Foreign Nationals Engaged in Economic and Military Espionage,” National Academy of Engineering President William A. Wulf addressed this point explicitly:
“The United States still benefits from educating and employing a large fraction of the world’s best scientists and engineers. We have great research universities that remain attractive to the world’s best and brightest. We are envied for our non-hierarchical tradition that allows young scientists, with new ideas, to play leading roles in research. We have progressed because we fostered a tradition of free exchange of ideas and information and embraced a tradition of welcoming talented people from elsewhere in the world. But our advantage is eroding under current and proposed policies.”At press time it was not clear whether BIS or DOD would ultimately adopt their respective proposed rules. For the latest details, check CRA’s Computing Research Policy Blog at: http://www.cra.org/govaffairs/blog.
CRA’s 2005 Tisdale Fellow, Daniel Rothschild, contributed to this report.
 Available online at: http://www.cra.org/govaffairs/blog/archives/computing_research_association.pdf
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