In the U.S.A., advocates of academic freedom—the ability to pursue research unencumbered by government controls—have long found sparring partners in government officials who regulate technology trade. From concern over classified research in the 1950s, to the expansion of export controls to cover trade in information in the 1970s, to current debates over emerging technologies and global innovation, the academic community and the government have each sought opportunities to demarcate the sphere of their respective authority and autonomy and assert themselves in that sphere. In this paper, we explore these opportunities, showing how the Social Contract for Science set the terms for the debate, and how the controversy turned to the proper interpretation of this compact. In particular, we analyze how the 1985 presidential directive excluding fundamental research from export controls created a boundary object that successfully demarcated science and the state, but only for a Cold War world that would soon come to an end. Significant changes have occurred since then in the governance structures of science and in the technical and political environment within which both universities and the state sit. Even though there have been significant and persistent calls for reassessing the Cold War demarcation, a new institutionalization of how to balance the concerns of national security and academic freedom is still only in its nascent stages. We explore the value of moving from a boundary object to a boundary organization, as represented in a proposed new governance body, the Science and Security Commission.
This is a preview of subscription content, access via your institution.
Buy single article
Instant access to the full article PDF.
Price excludes VAT (USA)
Tax calculation will be finalised during checkout.
The 2004 National Research Council report on Biotechnology Research in an Age of Terrorism, recommended that the Department of Health and Human Services create a National Science Advisory Board for Biosecurity, which was created within the National Institute of Health later that year. See further http://oba.od.nih.gov/biosecurity/biosecurity.html.
Internal Security Act of 1950 (the McCarran Act); the Patent and Secrecy Act of 1951; and the Immigration and Naturalization Act of 1952 (the McCarran-Walter Act).
Published by the Center for Strategic and International Studies’ Commission on Scientific Communication and National Security.
It is worth noting that 1985 also saw much debate about the ability of the government to stop sales of technology after a license had been approved. Just as the fundamental research exclusion carved a space for basic scientific research, so too the revised Export Administration Amendments Act of 1985 enforced the idea of “contract sanctity” to omit from control most previously agreed contracts for technology transfer (Hufbauer et al. 1990, 77).
For ITAR exclusions, see 22 CFR 120.10(a)(5), 120.11. See also: International Traffic in Arms Regulations: Exemptions for U.S. Institutions of Higher Learning, 22 CFR Parts 123 and 125, Federal Register, Mar. 29, 2002, v. 67, no. 61, pp. 15099–15011. For the EAR exclusion, see 15 CFR 734.3, 734.8 and 734.11.
The Mansfield Amendment technically only lasted one year. The following year, its text was included in Section 203 of the FY 1970 Military Authorization Act (P.L. 91–121), but modified to call for “potential relevance” to military functions. The Amendment, however, was used as a political tool after the withdrawal from Vietnam to justify restrictions on military R&D funding. Our thanks to Judith Reppy for pointing this out in an earlier draft. See also Davey (1986).
Defense Federal Acquisition Regulation Supplement (DFARS) and Procedures, Guidance, and Information (PGI) Subpart 204 “Administrative matters” section 73 “Export-controlled items” subsection 02 “General” item (3)(ii). Available here: http://www.acq.osd.mil/dpap/dars/dfars/html/r20080721/204_73.htm.
For a discussion on the comments received and the DoD’s justification for removing the text, see the Federal Register: April 8, 2010 (Volume 75, Number 67), pp. 18031–18034.
Public Law 105-261, Sect. 1511–1516.
15 CFR 772.
Federal Register: March 28, 2005 (Volume 70, Number 58), Proposed Rules, Page 15607–15609, http://www.gpoaccess.gov/fr/index.html.
Email conversation between S. A. W. Evans and US Commerce Department Official, 18–19 May 2009.
Replies are available to view on BIS’s electronic Freedom of Information web-page: http://efoia.bis.doc.gov/pubcomm/revision-to-the-deemed-export-regs-2005/final-document.pdf.
The DEAC was a Technical Advisory Committee within the Department of Commerce. It did not have an affiliation with the National Academies of Science.
Arguing against a linear model of innovation, NRC’s 2005 report on Assessment of Department of Defense Basic Research states that “DOD should view basic research, applied research, and development as continuing activities occurring in parallel, with numerous supporting connections throughout the process” (2).
Formerly the General Accounting Office.
Established through the Budget and Accounting Act of 1921, Sec. 312(a), 42 Stat. 25.
Congress has failed to renew the Export Administration Act every year save one (2001) since 1994. Instead, the export control system of the United States has remained in effect by the President each year declaring a national emergency and using his powers under the International Emergency Economic Powers Act (IEEPA) to extend the EAA’s authorization.
Currently, Department of Commerce handles licenses for dual-use technology and the State Department handles licenses for military technology.
Commerce maintains the dual-use list (the Commerce Control List), and State maintains the International Traffic in Arms Regulations munitions list (ITAR).
ETRAC’s charter may be found here: http://tac.bis.doc.gov/etracchart.htm. Minutes of the meetings may be found on the BIS site: http://tac.bis.doc.gov/.
Phone conversation between S. A. W. Evans and Department of Commerce’s official liaison for ETRAC, 30 March 2012.
Association of American Universities. 2002. ITAR and universities: Universities are educational institutions, not munitions manufacturers. http://www.aau.edu/WorkArea/DownloadAsset.aspx?id=1562.
Bowker, Geoffrey C., and Susan Leigh Star. 1999. Sorting things out: Classification and its consequences. Cambridge, Mass.: MIT Press.
Branscomb, Lewis M. 1993. Empowering technology: Implementing a U.S. strategy. Cambridge, MA: MIT Press.
Brooks, Harvey. 1990. Lessons of history: Successive challenges to science policy. In The research system in transition, eds. Susan Cozzens, Peter Healey, and John Ziman, 11–22, NATO Science Series 57. Dordrecht: Kluwer Academic Publishers.
Brown, David. 2012. “Controversial bird flu experiments produced no killer virus, Scientists say.” The Washington Post, April 3, sec. National. http://www.washingtonpost.com/national/health-science/controversial-bird-flu-experiments-produced-no-killer-virus-scientists-say/2012/04/03/gIQAFBV7tS_story.html.
Carter, Ashton B. 2010. Under Secretary of Defense Memorandum for Secretaries of the Military Departments. US Department of Defense. http://www.fas.org/irp/doddir/dod/research.pdf.
Chalk, Rosemary. 1986. Continuing debate over science and secrecy. Bulletin of the Atomic Scientists: 14–16.
Commission on Scientific Communication and National Security. 2005. Security controls on scientific information and the conduct of scientific research. Center for Strategic and International Studies (CSIS), Homeland Security Program.
Committee on Loyalty in Relation to Government Support of Unclassified Research. 1956. Loyalty and research. Science 123(3199), New Series (April 20): 660–662.
Cook, Sharron, ed. 2005. Record of comments: Advance notice of proposed rulemaking: Revision and clarification of deemed export related regulatory requirements (70 FR 15607 & 70 FR 30655). US Department of Commerce.
Coriat, Benjamin, and Fabienne Orsi. 2002. Establishing a new intellectual property rights regime in the United States: Origins, content and problems. Research Policy 31(8–9) (December): 1491–1507. doi:10.1016/S0048-7333(02)00078-1.
Cupitt, Richard T. 2000. Reluctant champions: U.S. presidential policy and strategic export controls, Truman, Eisenhower, Bush, and Clinton. New York: Routledge.
Davey, Michael E. 1986. DOD Support for research at colleges and universities. In Science policy study, background report no. 8: Science support by the Department of Defense, ed. Genevieve J. Knezo, 133–176. CRS Reports SPR-0023. Washington, D.C.: Congressional Research Service.
Deemed Export Advisory Committee. 2007. The deemed export rule in an era of globalization. US Department of Commerce.
Defense Science Board Task Force on Export of U.S. Technology. 1976. An analysis of export control of U.S. technology—a DoD perspective. Washington, D.C.: Office of the Director of Defense Research and Engineering.
Defense Science Board Task Force on Secrecy. 1970. Final report (The Seitz Report). US Department of Defense.
Erasmus University Medical Center. 2011. Virologists to observe American bioterrorism recommendation. Erasmus MC. http://www.erasmusmc.nl/perskamer/archief/2011/3530639/?lang=en.
Evans, Samuel A. 2009. Technological ambiguity & the Wassenaar arrangement. DPhil Thesis: University of Oxford.
General Accounting Office. 2002. Export controls: Department of commerce controls over transfers of technology to foreign nationals need improvement. GAO-02-972.
Gieryn, Thomas F. 1983. Boundary-work and the demarcation of science from non-science: Strains and interests in professional ideologies of scientists. American Sociological Review 48(6): 781–795.
Gieryn, Thomas F. 1999. Cultural boundaries of science: Credibility on the line. University of Chicago Press.
Government Accountability Office. 2006a. Export controls: Agencies should assess vulnerabilities and improve guidance for protecting export-controlled information at universities. GAO-07-70.
Government Accountability Office. 2006b. Export controls: Agencies should assess vulnerabilities and improve guidance for protecting export-controlled information at companies. GAO-07-69. Washington, D.C.
Government Accountability Office. 2011. Export controls: Improvements needed to prevent unauthorized technology releases to foreign nationals in the United States. GAO-11-354. Washington, D.C.
Grady, Denise, and William J. Broad. 2011. U.S. asks journals to censor articles on bird flu virus. The New York Times, December 20, sec. Health. http://www.nytimes.com/2011/12/21/health/fearing-terrorism-us-asks-journals-to-censor-articles-on-virus.html.
Guston, David H. 2000. Between politics and science: Assuring the integrity and productivity of research. Cambridge: Cambridge University Press.
Guston, David H. 2001. Boundary organizations in environmental policy and science: An introduction. Science, Technology, & Human Values 26(4): 399–408.
Harmon, Catherine. 2011. What really happened in malta this september when contagious bird flu was first announced? Observations, scientific American blog network. http://blogs.scientificamerican.com/observations/2011/12/30/what-really-happened-in-malta-this-september-when-contagious-bird-flu-was-first-announced/.
Hart, David M. 1998. Forged consensus: Science, technology, and economic policy in the United States, 1921–1953. Princeton studies in American politics. Princeton, NJ: Princeton University Press.
Henry, Matthew, and John L. Turner. 2005. The court of appeals for the federal circuit’s impact on patent litigation. SSRN eLibrary (February). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=713622.
Hufbauer, Gary Clyde, Jeffrey J. Schott, and Kimberly Ann Elliott. 1990. Economic sanctions reconsidered: History and current policy. Peterson Institute.
Knezo, Genevieve J. 1990. Defense basic research priorities: Funding and policy issues. CRS Reports 90-506 SPR. Washington, D.C.: Congressional Research Service. http://www.lexisnexis.com/congcomp/getdoc?CRDC-ID=CRS-1990-SPR-0013.
Krause, Keith. 1992. Arms and the state: Patterns of military production and trade. Cambridge studies in international relations 22. Cambridge: Cambridge University Press.
Lakatos, Imre. 1978. The methodology of scientific research programmes. His Philosophical Papers; V. 1. Cambridge; New York: Cambridge University Press.
Leath, Audrey T. 2001. ITAR regulation of research satellites generates concern. FYI: The AIP Bulletin of Science Policy News (110) (August 30). http://www.aip.org/fyi/2001/110.html.
Li, F.C.K, B.C.K. Choi, T. Sly, and A.W.P. Pak. 2008. Finding the real case-fatality rate of H5N1 avian influenza. Journal of Epidemiology and Community Health 62(6)(June): 555–559. doi:10.1136/jech.2007.064030.
Lunney, Glynn S. 2004. Patent law, the federal circuit, and the Supreme Court: A quiet revolution. Supreme Court Economic Review 11(January 1): 1–80.
Mowery, David C. 2004. Ivory tower and industrial innovation: University-industry technology transfer before and after the Bayh-Dole Act in the United States. Innovation and Technology in the World Economy. Stanford, CA: Stanford Business Books.
National Academy of Sciences, National Academy of Engineering, and Institute of Medicine. 2007. Rising above the gathering storm: Energizing and employing America for a brighter economic future. Committee on Prospering in the Global Economy of the 21st Century: An Agenda for American Science and Technology. Washington, D.C.: The National Academies Press.
National Academy of Sciences, National Academy of Engineering, and Institute of Medicine. 2009. Rising above the gathering storm, revisited: Rapidly approaching category 5/Committee on Prospering in the Global Economy of the 21st Century: An Agenda for American Science and Technology. Washington, D.C.: National Academies Press.
National Institutes of Health. 2012. U.S. government policy for oversight of life sciences dual use research of concern. Office of Biotechnology Activities, NIH. http://oba.od.nih.gov/oba/biosecurity/PDF/United_States_Government_Policy_for_Oversight_of_DURC_FINAL_version_032812.pdf.
National Research Council. 2002. Making the nation safer: The role of science and technology in countering terrorism. Washington, D.C.: National Academies Press.
National Research Council. 2004. Biotechnology research in an age of terrorism: Confronting the dual use dilemma—“The Fink Report”. Washington, D.C.: National Academies Press.
National Research Council. 2005. Assessment of Department of Defense Basic Research by the Committee on Department of Defense Basic Research. Washington, D.C.: The National Academies Press.
National Research Council. 2007. Science and security in a post 9/11 world: A report based on regional discussions between the science and security communities. Washington, D.C.: National Academies Press. http://www.nap.edu/catalog/12013.html.
National Research Council. 2009. Beyond “Fortress America”: National Security Controls on Science and Technology in a Globalized World/Committee on Science, Security, and Prosperity [and] Committee on Scientific Communication and National Security, Development, Security, and Cooperation, Policy and Global Affairs. Washington, D.C.: National Academies Press.
National Science Advisory Board for Biosecurity. 2011. Press statement on the NSABB review of H5N1 research. http://www.nih.gov/news/health/dec2011/od-20.htm.
National Science Advisory Board for Biosecurity. 2012. March 29-30, 2012 Meeting of the National Science Advisory Board for biosecurity to review revised manuscripts on transmissibility of A/H5N1 influenza virus. http://oba.od.nih.gov/oba/biosecurity/PDF/NSABB_Statement_March_2012_Meeting.pdf.
National Science Foundation. 2011. Globalization of science and engineering research: A companion to S&E indicators 2010. http://www.nsf.gov/statistics/nsb1003/.
National Security Council. 1985. NSDD-189: National policy on the transfer of scientific, technical and engineering information. College Park, MD: National Archives. Obtained from: http://www.fas.org/irp/offdocs/nsdd/nsdd-189.htm.
Obama, Barack. 2010. Fact Sheet on the President’s Export Control Reform Initiative. Washington, D.C.: The White House.
Office of the Inspector General. 2004. Office of the inspector general: Deemed export controls may not stop the transfer of sensitive technology to foreign nationals in the US. US Department of Commerce. http://www.oig.doc.gov/oig/reports/2004/BIS-IPE-16176-03-2004.pdf.
Panel on Scientific Communication, Engineering National Security Committee on Science, and Public Policy. 1982. Scientific communication and national security—the Corson report. Washington: National Academy Press.
Pielke Jr, Roger A. 2007. The Honest Broker: Making Sense of Science in Policy and Politics. Cambridge University Press.
Pinch, Trevor J., and Wiebe E. Bijker. 1984. The social construction of facts and artefacts: Or how the sociology of science and the sociology of technology might benefit each other. Social Studies of Science 14(3): 399–441.
Polanyi, Michael. 1962. The republic of science: Its political and economic theory. Minerva 1: 54–74.
Popper, Karl R. 1959. The logic of scientific discovery. New York: Basic Books.
Price, Don Krasher. 1965. The scientific estate. Cambridge, Mass: Belknap Press of Harvard University Press.
Russell, C.J., and R.G. Webster. 2005. The genesis of a pandemic influenza virus. Cell 123(3): 368–371.
Sapolsky, Harvey M. 1990. Science and the navy: The history of the Office of Naval Research. Princeton, N.J: Princeton University Press.
Sarewitz, Daniel R. 1996. Frontiers of illusion: Science, technology, and the politics of progress. Philadelphia: Temple University Press.
Schatch, Wendy H. 2005. CRS report, the Bayh-Dole Act: Selected issues in patent policy and the commercialization of technology. Congressional Research Service.
Schnirring, Lisa. 2012. H5N1 mutations, other details unveiled at H5N1 meeting. University of Minnesota. CIDRAP News. http://www.cidrap.umn.edu/cidrap/content/influenza/avianflu/news/apr0312royal.html.
Shils, Edward A. 1972. The intellectuals and the powers, and other essays. His selected papers, 1. Chicago: University of Chicago Press.
Slaughter, Sheila, and Larry L. Leslie. 1997. Academic capitalism: Politics, policies, and the entrepreneurial university. Baltimore: Johns Hopkins University Press.
Slaughter, Sheila, and Gary Rhoades. 2004. Academic capitalism and the new economy: Markets, state, and higher education. Baltimore: Johns Hopkins University Press.
Smith, Bruce L. R. 1990. American science policy since World War II. Washington: Brookings Institution Press.
Smith, Tobin L., Josh Trapani, Anthony Decrappeo, and David Kennedy. 2011. Reforming regulation of research universities. Issues in Science and Technology (September): 57–64.
Star, Susan Leigh, and James R. Griesemer. 1989. Institutional ecology, “translations” and boundary objects: Amateurs and professionals in Berkeley’s Museum of Vertebrate Zoology, 1907-39 19(3).
Steelman, John Roy. 1947. Science and public policy. Washington: U.S. Govt. Print. Off.
Stokes, Donald E. 1997. Pasteur’s Quadrant: Basic science and technological innovation. Washington: Brookings Institution Press.
Valdivia, Walter D. 2011. The stakes in Bayh-Dole: Public values beyond the pace of innovation. Minerva 49(1): 25–46. doi:10.1007/s11024-011-9162-6.
World Health Organization. 2011a. Cumulative number of confirmed human cases for avian influenza A(H5N1) reported to WHO, 2003–2011. http://www.who.int/influenza/human_animal_interface/EN_GIP_20111215CumulativeNumberH5N1cases.pdf.
World Health Organization. 2011b. H5N1 Avian influenza: Timeline of major events (updated as of 7 November). http://www.who.int/influenza/human_animal_interface/EN_GIP_20111215CumulativeNumberH5N1cases.pdf.
World Health Organization. 2012. Report on technical consultation on H5N1 research issues. Geneva. http://www.who.int/mediacentre/news/statements/2011/pip_framework_20111229/en/index.html.
Young Jr., John J. 2008. Under Secretary of Defense Memorandum for Secretaries of the Military Departments. http://www.aau.edu/WorkArea/DownloadAsset.aspx?id=10846.
We would like to thank Judith Reppy, who reviewed an early draft and provided very useful comments. Our collaboration came out of “The Rightful Place of Science?” workshop at Arizona State University hosted by the Consortium for Science, Policies, and Outcomes in 2009.
All authors contributed equally to the writing of this paper.
Rights and permissions
About this article
Cite this article
Evans, S.A.W., Valdivia, W.D. Export Controls and the Tensions Between Academic Freedom and National Security. Minerva 50, 169–190 (2012). https://doi.org/10.1007/s11024-012-9196-4
- Export controls
- Academic freedom
- Social contract for science
- Boundary object
- Boundary organization