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Stanford and Harvard asserted that this ambiguity would
conflict with their fundamental policy that "all new information developed in the course of research be publishable."77
On August 3, 1984 a new draft of the UCNI regulations was 78 issued for public comment. As a matter of principle, Harvard and other research universities continue to oppose federal restrictions on the dissemination of unclassified information. However, the new draft does contain improvements over its predecessor.
Specifically, Harvard's comments on the new draft
noted a "narrowed and better defined scope of application" of the proposed regulations. Also, the new draft contains an exemption for basic scientific information. Nevertheless, University
commentators were careful to note the need for defining basic research SO as to protect academic freedom.
Harvard comment suggested that basic research, exempt from all regulation, should be defined as: "information resulting from research directed toward increasing knowledge or understanding of
the subject under study rather than any practical application of that knowledge.
UCNI, Proposed Rule; Notice of Public Hearing, 10 CFR Part 1017.49 F.R. 31236 (August 3, 1984).
Comments of Harvard University, from the office of John
The debate over federal restrictions on the free flow of ideas has recently intensified in the area of export control regulations.
In October 1983, the House of Representatives adopted an amendment to a bill extending the Export Administration Act which provided that:
It is the policy of the United States to sustain vigorous scientific enterprise. To do so requires protecting the ability of scientists and other scholars to freely communicate their research findings by means of publication, teaghing, conferences, and other forms of scholarly exchange."
However, the Senate version of the extension bill substitut
ed the words "involves sustaining" for "requires protecting". More important, the Senate version inserted the word "non-sensi
tive" before the words "research findings".81 This key change
substantially alters the meaning and intent of the entire paragraph. The Senate version would create the very restriction on scholarly exchange that the House version was intended to avoid. The Export Administration bill died at the end of the 98th Congress in October 1984 because no agreement could be reached in a House-Senate Conference Committee over a wide variety of issues in the bill. The new Congress is expected to take up the issue again in 1985.
Congressional Record, S 51722 (February 27, 1984).
Another recent development involves the Military Critical Technologies List (MCTL), which has been revised and expanded. This list is similar to the Commodity Control List and the U.S. Munitions list in that it designates sensitive applied technologies that the Defense Department desires to control. The list itself is classified, but a directive describing it states that the list now covers all newly created technical documents generated by [DOD]-funded research, development, test and
The MCTL is controversial for two reasons. First, it is statutorily incorporated into the Commodity Control List (CCL). Using the MCTL as a base, the Pentagon can propose changes in the CCL. 83 Second, the MCTL is reportedly over 700 pages long, and has been described by one DoD official as "really a list of modern technology-84 and as a document that "could further complicate the use of these regulations as a means of trying to control scientific and technical communications. MCTL designates as "sensitive" technologies that the DoD desires to restrict.
In the area of contract controls, the "sensitive" designation arises in part from a "gray-area" identified by DoD offi
Quoted in The Boston Globe, Nov. 4, 1984, at 9.
See 50 App. U.S.C.A., Sec. 2404(a) 1,2,3,5.
"Administration Grapples With Export Controls", Science, Vol. 220, June 1983, at 1023.
Testimony of George H. Dummer, Director, Office of Sponsored
cials "where controls on unclassified scientific information are
The "gray area" approach, however, appears to have encountered opposition within the Defense Department itself. In testimony in May 1984 before the Subcommittee on Science, Research and Technology, Edith Martin, then Deputy Undersecretary of Defense for Research and Engineering, stated that DoD had decided "not to pursue the gray area concept because the option 87 had proved to be more complicated than it had seemed. told the
subcommittee that "[i]t is the policy of this administration that the mechanism for control of fundamental research in science and engineering universities and federal laboratories is classification..." This statement was repeated on October 1, 1984 in a memorandum signed by then Under Secretary of Defense for Research and Engineering Richard De Lauer, stating that "no controls other than classification may be imposed on fundamental research and its results when performed under a 89 federally supported contract. The DeLauer memorandum was attached as a cover to a draft national policy on scientific and technical information. Whether the position articulated in the memorandum will be formally adopted by the Reagan Administration must await the Administration's final action on the draft national policy itself.
Wallerstein, at 18,19. Also non-sensitive/sensitive research would be distinguished by four criteria laid out in the Corson Report at 65.
"DoD Springs Surprise on Secrecy Rules", Science, June 8, 1984, at 1081.
Id., at 1081.
Memorandum Concerning Publication of the Results of DoD Sponsored Fundamental Research, Reference DOD Directive 2040.2, October 1, 1984, at 1.
IV. Restrictions on Foreign Scholars
Under the Immigration and Nationality Act (known as "the McCarran Act"), foreign nationals can be denied entry into the United States because of their political and ideological beliefs.90 The restrictive provisions apply to "aliens who...en
gage in activities which would be prejudicial to the public interest"; to "aliens who are members of the Communist Party" or "who advocate the economic, international and government doctrines of world communism"; and to "aliens who write or publish or cause to be written... printed matter...advocating or teaching... the economic, international and governmental doctrines of world communism.
The leading Supreme Court decision interpreting the McCarran Act involved a Belgian journalist and Marxist theoretician, Ernest Mandel.92 Although not a member of the Communist Party, Mandel described himself as "a revolutionary Marxist".93 Despite this description on all his visa applications, Mandel had been admitted to the United States temporarily in 1962 and again in 94 1968 before his first entry denial. In 1969, he was invited to
Immigration and Nationality Act, 8 U.S.C., Sec. 1101 et.seq. (1952).
Id., Sec. 1182 (4), (5), (6), (9), (11), (12), (27), (28), (C), (D),
Kleindienst v. Mandel, 408 U.S. 753 (1972).
Id., at 756. At those times, he was admitted under the waiver provision in Sec. (d)3(a).