560 Harvard Civil Rights-Civil Liberties Law Review [Vol. 16 ests and scientific freedom. Such an approach would commit the initial assessment of the government's concerns to the informed but critical judgment of the affected researchers. If the scientists are persuaded by the government's claims, the resulting self-regulation would provide the surest guarantee against public disclosure. On the other hand, if the two sides are unable to reach an agreement, the conflict will be resolved in the courts. Importantly, however, an adjudication of the issue will not require a sharp break from traditional first amendment doctrine. On the contrary, the application of standard first amendment principles will generally provide a satisfactory basis for deciding the novel constitutional issues that will arise from governmental attempts to regulate certain forms of scientific and technological information. And this conclusion is perhaps the highest tribute to the enduring ability of those principles to accommodate the claims of free speech with the legitimate interests of the public welfare. XILS USC CRS MAIN FILE COPY What price security?, 02496 A National Academy panel evaluates trade-offs between dangers to national security that arise from technology transfers and threats to the openness of scientific communication that are caused by too much secrecy. Dale Corson "There is an overlap between technological information and national security which inevitably produces tension. This tension results from the scientist's desire for unconstrained research and publication on the one hand, and the Federal government's need to protect certain information from potential for eign adversaries who might use that information against this nation. Both are powerful forces. Thus, it should not be a surprise that ånding a workable and just balance between them is quite difficult." So said Admiral Bobby R. man, then Deputy Director of the Central Intelligence Agency, in a speech at the 7 January 1932 meeting of the American Association for the Advancement of Science. Dale Corson, a physicist and former president of Cornell University, led the National Acadary panel. Inman's speech has since sparked widespread discussions aimed at delineating the differing needs of these two forces and suggesting ways to balance them. In fact, the tension about which Innan spoke, and the dilemma it poses, were the focus for a study recently completed under my chairmanship, entitled "Scientific Communication and National Security" (PHYSICS TODAY, No vember, page 69). The study, conducted under the auspices of the National Academies of Science and Engineering, considered the interests of both national security and scientific communica tion; attention focused on the control mechanisms now being used to restrict the flow of information and on the application of these controls; the committee also recommended specific improvements to the system. The underlying conflict between the drive for security and the drive to open Optient Society program (right) from their communication is not a new issue. Recently, however, concerns about national security as well as concerns about the free flow of information among scientists have increased. Why? Recent events increase concerns Although adrainistrative concern over the technology-transfer problem increased during the last Administration, it has escalated sharply in the current one. This new sense of alarm has emerged, to some degree at least, from a change in perceptions. The US intelligence community, in fact, has identified four trends as significant. ▷ The US lead in at least some areas of military technology has diminished. The intelligence community sees this diminishing lead as a result of Soviet absorption of Western technology. Military systems are depending more and more on such high technol PHYSICS TODAY / FEBRUARY 1983 ogies as state-of-the-art microelectroncs, lasers and so forth. A steadily increasing share of these technologies has both military and nonmilitary applications; there is substantial difficulty in controlling leaks in non-military rysteme. Recent American foreign policy has multiplied the number of routes for leakage. Significant expansion of East/Weat trade in the 1970s, for example, has resulted in a variety of agree ments that further encourage the transfer i technology. .. iding further to the alarm is a Fast the Soviet Union is making a concerted effort to acquire scientific and technical information. This view was expressed strongly by Lawrence J. Brady, Assistant Secretary of Commerce, in a speech before the intelligence community last March. He said: Operating out of embassies, consulates, and so-called business dol egations,' KGB operatives have blanketed the developed capitalist countries with a network that op erates like a gigantic vacuum cleaner, sucking up formulas, patents, blueprints and know-how with frightening precision. We believe these operations rank higher in priority even than the colleotion of military intelligenco... This network seeks to exploit the "soft underbelly"-the individ uals who, out of idealizm or greed, fall victim to intelligence schomes; · Society of our traditions of an open press and The question of what price the Ad- tives of high-technology industry, several present or former members of the Defense Science Board and two lawyers. Our charge included four tasks: An examination of national-cecurity issues and scientific communication interests within the context of certain fields of science and technology A review of the controls used in restricting scientific communication es well as identification of the issues arising from the use of the controls A rigorous evaluation of the critical issues concerning the application of controls, and The development of ways to make the system operate more ecctively. Although the panel's mission was to investigate the effects of restrictions on scientific communication in general, it found in reaching its recommendations that the university requires separate consideration within the context of the US research community. Restrictions on open communication have categori cally differont implications for universities than they do for industrial, gor ernmental and other realms of the community, there are two masia reasons for this distinction: ▷ Universities integrate research and education; thus, any adverse effects on ressarch will also adversely affect the quality of education for the next gener ation of scientists and enginesra Notable among these events have been efforts to elicit the cooperation of universities in restricting the movements of visiting Soviet scientists. In addition, there have been repeated instances in which the Pentagon or the Department of State has sought to prevent scheduled papers from being presented at scientile conferences One such incident that recently ro ceived wide publicity took place at the Society of Photo-optical Instrumentation Enginoors' conference in San Die in August: The Pentagon had nearly 150 papers withdrawn coveral▷ Unlike other research institutima, days before the meeting. It now ap pears that many of these papers will, after all, receive clearance and be included in the published proceedings from this meeting. Similar incidents in which scheduled papers have been withdrawn from scientific meetings have taken place before and apparently will continue to take place, as the Optical Society of America discovered in November when several papers were withdra from its meeting in Tucson. These events stem, in part, from a confusion over how to apply the Federal regulations to the aentific and acadernic community. Panel studica kay Issua; Our panel of 19 peor'e included a former Under Secretary of Defense, a former Under Secretary of Energy, a former Director of the National Science Foundation, a former Presidential Science Advisor, four former members of the President's Science Advisory Committee, five members or former members of the National Science Board, la current or former university prosider ts, one former Director of the National Security Agency, four execu universitics have never established broad controls on access to inform Son to ensure that sensitive information be protected. Such restrictions, therefore, would present an unfamiliar and unwelcome challenge to the university. Because the potential national secu rity concerns are most likely to arise in work that is funded by the government, the panel's conclusions conceztrate on government-supported research. While much of cur report applies to basic industrial research just as much ea it applies to university research, there are important questions boaring on industry that we have not addressed at all. For example, how does one treat the problem of communication with a multinational company that has labo retories abroad and foreiga subsidaries? For many, this may be the most importent question of all; I regret I cannot help, for this question requires Etudy by a new group constituted in a different way. Due to both the current level of concern and the panel's limited time and reacuress, study focussion technology transfor to the USSR from the US. To tedy these issues, the panel had nature of the technology-leakage problem was. We realized early on that we would have to operate on a classified basis; consequently we arranged for security clearance for all panol members at the secret level. In addi tion, six of our members, who held security clearanes at the highest level, arranged for intelligence briefings and discussions at the very highest security levels and reported back to the full panel at the secret level. They also produced a Secret report which is on file in the National Academy of Sciences. In addition, they produced an unclassified report, which is included in our panel report as an appendix, and which gives a clear picture of the technology-leakage problem. The panel is unanimous in its conclusions and recommendations. Major suggestions and conclusions The evidence from all sources suggests that indeed there is a substantial and serious technology-transfer problem. There is a continuing flow of products, processes and ideas from the US and its allies to the Soviet Union, through both overt and covert means. Although much of this unwanted transfer has mattered little to US security, either because the US did not enjoy a monopoly on a particular technology or because the technology in question had little or no military significance, a substantial portion of the transfer has been damaging to national socurity (See the table for some evidence presented by the Central Intelligence Agency). These damaging transfers have taken place through the legal es well as illegal sale of products, through transfers via third countries and through a highly organised espionage operation. Although a good deal of information has been transfered through open scientific communication, the panel concludes that, in comparison with other channels of technology transfer, open scientific communication involv ing the research community does not threaten our near-term military position. Given both this conclusion and our concern for finding an approach that will maintain the vitality of our universities and their roles in education and research, while at the same time protecting the security of our advanced technology, how should we proceed? turn depends on effective communica tion among scientists, and between scientists and engineers; the shortterm security achieved by restricting the flow of information is purchased at a price. After weighing the alternatives, the panel concludes that the best way to ensure long-term rational security lies in a strategy of "security by accomplishment," and that an essential ingredient of technological accomplish ment is open and free scientific communication. Such a policy involves risk, because new scientific findings will inevitably be conveyed to US adversaries. Nonetheless, the panel believes the risk is acceptable because American industrial and military institutions are able to develop new techno logy swiftly enough to give the US a continuing advantage over its military adversaries. Against this general background, the panel comes to three specific conclusions: The vast majority of university research programs, whether basic or applied, should be subject to no limitations on access or communications. Where specific information has direct military relevance and must perforce be kept secret, it should be classified strictly and guarded careful classified research projects, or to establish off-campus classified facilities, is a matter to be decided by individual universities. There are a few gray areas of research that are sensitive from a security standpoint, but where classification is not appropriate. These areas are at the ill-defined boundary between applications and basic research and are characteristic of fields where the time from discovery to application is short. (At present, a portion of the field of microelectronics is the most visible of these technologies.) While it is impossible to specify these gray areas with precision, there are some broad criteria that help to define the few areas in question. The panel recommends that no restrictions of any kind that limit access or communication should be applied to any area of university research, basic or applied, unless it involves technology meeting all of the following four criteria: ►The tochnology is developing rapidly and the time from basic science to application is short; and The technology has identifiable direct military applications, or is dua!use, and involves process or production-related techniques; and Transfer of the technology would give the USSR a significant near-term Acquisitions from the West affecting Soviet military technology Microelectronics Signs! Processing Manufacturing Communications Lasers Purchasce and acqulations of complote systems designs, concepts, hardware and software, including a wide variety of Viestar paneral purpose computers and minicomputers, for military applications. Complete incetrial processes and semiconductor manufacturing equipment pable of meeting el Soviet military requirements, if acquisitions were combined. Accutions of processing equipment and know-how. Acquisitions of automated and precision manufacturing equipment for electronIca, materials, and opticel and future Isaar weapons technology, auquisition of information on manufacturing technology related to weapons, ammunition, and aircraft parts including turbine blades, computera, and electronic component Boquisition of machine tools for cutting large geare for ship propulsion systains. Acquation of low-power, low-noise, high-sensitivity receivers. Acquisition of optical, pulsed power source, and other laser-related components, including special optical mirrors and mirror technology suitable for fubre lear weapons. Guidance and Navigation Acquistions of marine and other navigation receivers, advanced inertial-guid ance components, including miniature and lasor Gyros, Boquisitions of mille guidance subsystems; acquisitions of precision machinery for ball-bearing production for misale and other applications, acquisition of missile test-range instrumentation systems and documentation and precision cinetheodolites for col lecting date critical to postlight balistic-missile analysis. Structural Materials Propulsion Acoustical Sensors The panel believes that scientific research and technological development are best nurtured in an environment where such efforts are dispersed Electro-optical Sensors but interdependent. Opennoes and a free flow of information are essential aspects of such an environment. The technological leadership that the US enjoys is based in no small part on a Raders Purchases and acquisitions of Western ttenkum alloys, welding equipment, and 1Lm.ces for producing titanium plate of large size applicable to submarine construction Missile technology, some ground-propulsion technology (desete turbines, and rotarios), purchases and soquetons of advanced jel-engine fabrication technology and jet engine design information. Acquimions of underwater navigation and direction-finding equipment. Trile edeptod from a Contral Inveligance Agency report enstad Soviet Acquisition of 0031-9228/83/0200 48-05/801.00 1983 American invite of Physics military advantage; and Either the US is the only source o information about the technology, or other friendly nations that could also be the source have control systems at least as secure as ours. The panel recommends that in the limited number of instances in which all of the above criteria are met, but where classification is unwarranted, the values of open science can be preserved and the needs of government can be met by written agreements or contracts no more restrictive than the following. ►Prohibition of direct participation in government-supported research projecto by nationals of designated foreign countries but with no attempt to limit physical access to university space or facilities or to limit en.ollment in any classroom course or study. The danger to national security lies in the immersion of a suspect visitor in a research program over an extended period, not in casual observation of equipment or research data. ► Submission of stipulated manuscripts simultaneously to the publisher and to the Federal agency contract officer, with the contract officer having 60 days to seek modifications in the manuscript if he so wishes. The review period is not intended to give the government the power to order changes. The right and freedom to publish remain with the university as they do with all unclassified research. The government nonetheless is a pow. erful negotiator in these discussions; it has the ultimate power to classify the research or to cancel the contract. Knottier problems The panel recognized the difficulty of limiting the access of foreign visitors on campuses to sensitive information, par ticularly when universities typically have people who are not working on federally-funded projects but who have free access to the laboratories and all that goes on within the university. Let me simplify the problem by suggesting what might happen in a specific case. Visitors come to univerBitics with restictions on their visas. Such restrictions may include travel restrictions, restrictions on what they can work on, and currently there might also be restrictions on what they can see. The contract officer occasionally checks up on the visitor and he also asks the university to report on what these particular visitors are up to. Certainly, according to our recommendations, the university would be alerted to the problem and notified what the visitors should not be supported with project funds over an extended period of time. In the case of the similar research laboratory next door, performing non government-funded research, we suggosted that it would not be inappropriate for the university to respond affirmatively to requests from govern ment agencies for information about Fossible attempts by the visitors to gain support to work with the nongovernment-funded project over an extended period. We reasoned that if the researchers did obtain that type of support, in doing so they would be presumably violating the terms of their visrs. Thus we think it's appropriate for the university to respond affirmatively if asked, when those visa restrictions are being violated. Such requests, however, should not require surveillance or monitoring of foreign nationals by the universities. It is important for the welfare of the country that universities' educational and research programs remain vital. The procedures recommended by the panel for dealing with the gray areas of research are intended to protect university interests, and at the same time to be responsive to the government's requirements. Wisconsin in Milwaukee applied for a patent on a cryptographic invention he had made. He didn't hear from the Patent Office for a long time. Eventually be received a post card as the only response to the applicationpost card saying that his research program had been classified Secret and that he was not to talk to anybody about it. This action was authorized undir the Invention Secrecy Act. Admiral Inman played a major role in resolving that issue and reducing a tense situation to one that is now handled on a voluntary basis. The American Council on Education also played a lead role by convening a study group on the cryptography problem, in which the mathematicians participated. I also participated in the very Årst discussion of that problem at the American Council on Education, where I first met Inman. As a result of these discussions, people working in cryptography now submit their papers to the National Security Agency for comment, simultaneously they submit their papers to the publisher. Some 50 The panel believes that the provi- papers have been submitted under this sions of Export Administration Regula voluntary arrangement. I think tions and International Traffic in Arms changes or suggested changes have Regulations should not be invoked to been proposed by NBA in a couple of deal with these gray areas in govern cases, but I have not heard of any great ment-funded university research. diastisfaction. I also believe that Rather, the appropriate procedure there are some people working in the should be incorporated in research field who have declined to cooperate contracts or other written agreements and are going ahead on their own. We in those rare cases where some mea- spoke both with the National Security sure of control is required. Further people and with people from universimore, the panel believes that universities with researchers in the field, and ties and industrial research laboratories should be treated in exact ly the same way insofar as EAR and ITAR are concerned. Writing the contract ahead of time poses two problems. The first is that one never knows what is going to happen; perhaps something will come up that was not anticipated in the contract. The second is that Federal contracting officers may act overzealously in protecting themselves by writ ing in restrictions that, are unneces sary. Both are real concerns. To address the first problem-not knowing what's going to come up-we'd like to have the rules clearly understood ahead of time, insofar as they can be, so that everybody knows what the rules are and can play by the same rules. When cases come up where it is necessary to elaborate, we believe that constructive discussion can take place and problems can usually be resolved if there exists an atmosphere of good communication. As an example of such a resolution, I can cite the situation that began saveral years ago in the field of cryptogra phy. There were several instances, one in particular occurred in about 1978. A young researcher at the University of all of them expressed satisfaction with the current system. This is an example of what can happen when people get together and talk about the problem. The panel believes, however, that one cannot extend this particular sy tem to other research. Cryptography is a very narrow field in which everybody working in it knows everybody else working in it, and the focus of the research is limited and generally welldefined. This is not true for most other fields of research. The second problem-the overzealoua contract officer writing in unneces sary restrictions-is harder to deal with. I suspect that this problem is part of what happened at the San Diego SPIE Conference in August. In that instance, however, it wasn't the contract officer who was overzealous, but rather it was somebody in the Pentagon; I don't know how to protect against Pentagon intervention. The Defense Department supports a significant amount of first-rate bazic research, their so-called 6.1 research. Traditionally, research supported by 6.1 funding is unclassified, unrestrict ed, and free for publication. I suspect that now there is a move to restrict 6.1 supported research in various ways, |