5/23/00

Dawn Levy, News Service (650) 725-1944; e-mail: dawnlevy@stanford.edu

Restriction puts satellite research in a holding pattern

Just one sentence. That was all it took to ban a Stanford graduate student, who is Chinese, from continuing his work with basic spacecraft control algorithms. It was enough to prevent the world's expert in proton monitors, who is Irish, from being in the same room as the equipment he designed when American researchers bolted it onto a satellite. It prevented the signing of a contract that would allow Japanese, Stanford and Lockheed researchers to collaborate in studying the sun. One sentence was all it took to place satellite programs in holding patterns at universities including Stanford, Caltech, Penn State, MIT and the Universities of California, Arizona and Colorado.

The satellite-grounding sentence is a tiny clause in the State Department's International Traffic in Arms Regulations (ITAR) that classifies spacecraft systems and scientific satellites -- and all related data, components, software, parts and material -- as "significant military equipment" subject to tight control. ITAR bars the disclosure of unclassified technical data by American universities to their own foreign students (who account for 30 percent of Stanford's graduate students), faculty and collaborators if they are from countries listed as "sensitive" or "terrorist exporting." Among those currently declared by the State Department to be "sensitive" -- a term that is largely undefined and varies from agency to agency with regard to data and technology -- are Algeria, China (Hong Kong and mainland), Croatia, India, Iran, Israel, Pakistan, Romania, Taiwan and Vietnam.

The effect of ITAR and ways in which Stanford can try to protect its open research environment were topics of discussion at the annual public meeting of the university's Academic Council Committee on Research on May 12.

The last time this issue came up -- and it has come up repeatedly -- was 1985, and it took nothing less than an Executive Order from President Ronald Reagan to resolve. His National Security Defense Directive 189 states that: 1) to the maximum extent possible the products of fundamental research remain unrestricted; and 2) where the national security requires control, the mechanism for control of information generated during federally funded research is classification. The government -- not researchers -- uses the classification process in cases where it perceives a weapons application or other national security issue deriving from fundamental research.

While classification formerly was done by inclusion -- that is, by specifically stating what is classified -- ITAR in essence has created a situation where "everything having to do with a spacecraft is restricted unless it is specifically excluded," said Bradford Parkinson, a professor in the Aeronautics and Astronautics Department and last year's chair of the NASA Advisory Council. "With a sweep of the magic wand, the whole game is changed."

Last year, partly in response to security concerns sparked by an alleged spying incident at Los Alamos National Laboratory, Congress expanded the scope of the State Department. Research activity that once was regulated by the Commerce Department, which excluded fundamental research from its export regulations, is now subject to the State Department's ITAR. This change creates a direct conflict for the openness-in-research policies at Stanford and other major research universities. With ITAR, the government ended up writing and enforcing a set of restrictions "that are a lot more onerous than anything that it had had before," Parkinson said.

Impacts at Stanford

Stanford has been heavily affected, Parkinson said. "I strongly endorse the idea of protecting stuff from bad guys who might harm us with it," he said. "But I don't think fundamental research endangers us and falls under that category by and large. We simply can't allow this to bring our space-related research to a halt."

ITAR is unclear, researchers complained, about what exactly is a "spacecraft system." Is it anything that flies? Or is it something that is uniquely produced for the spacecraft environment? And what about equipment produced for a nonflight function that eventually makes its way onto a satellite?

"The onus should not be on us poor researchers to figure all that out," Parkinson said. "There should be some broad guidelines that we can follow, and if we make an inadvertent error in judgment, the penalty should not be instantly going to jail or losing our family fortunes [through legal fees]."

Rachel Claus, counsel for the Stanford Linear Accelerator Center (SLAC), assured researchers that "there is no obligation on you as a researcher to determine whether or not the fundamental research you are involved in might result in something that may eventually be deemed classified, such that you may not involve foreign students or faculty." In a follow-up interview, Claus emphasized that it is the fact that a research instrument is going to go up in a satellite that confuses the issue. With regard to such work, it is important for researchers to be able to demonstrate that their work is in the public domain.

Another major problem is that ITAR restricts disclosure of unclassified technical data by U.S. institutions of higher learning to foreign persons who are full-time employees. "This isn't calling up your friend in Bulgaria or Communist China," Parkinson said. "We're talking about disclosure right here in River City."

If a spacecraft project has employees of certain nationalities, the program must obtain certification for those employees, a process that can take six months.

To get an exemption requires a certificate from the State Department. Bureaucrats, who may feel they are putting themselves in a vulnerable place by granting exemptions (what if an exempted individual turns out to be a spy?), have little incentive to interpret ITAR broadly, Parkinson said.

Consider the case of Gravity Probe B, of which Parkinson is a scientific leader. The program, which has been in existence for a third of the history of the university, aims to test Einstein's theory of relativity by launching a satellite housing a giant thermos into space. The thermos contains four perfect gyroscopes that are necessary to test phenomena Einstein predicted as a consequence of relativity: frame dragging and the geodetic effect.

"We're well on the road to launching this beauty," Parkinson said. "So [Gravity Probe B Deputy Program Manager] Tom Langenstein writes a letter to NASA. Now there are four very wonderful gyros. So a bureaucrat says, 'Wonderful gyroscopes. That's military stuff.' Well, the little hook is it requires a temperature of about 1.8 degrees Kelvin, a vacuum harder than the vacuum of space, magnetic shielding by 14 orders of magnitude and about $400 million dollars, and now you've got one. This is not a practical military threat to the United States. I mean, it just isn't."

The definition of "fundamental research" rests on whether the science or technology is "basic" and will be placed in the public domain (that is, will be available to the interested scientific community); it does not turn on whether the scientific instrumentation developed or employed is complex or sophisticated. Nonetheless, NASA came back with a letter saying that the technologies were too sophisticated for the research to be considered "fundamental" and that if Stanford disagreed, the university was free to object to the State Department.

"If it isn't [fundamental research], I don't know what the heck it is," Parkinson countered. "It's not applied engineering."

ITAR has thrown a monkeywrench into other current or pending Stanford projects as well. Leaders of both the Gamma Ray Large Area Space Telescope (GLAST), for the study of celestial high-energy sources, and the Laser Interferometer Space Antenna (LISA), for the study of low-frequency gravitational waves, have ITAR horror stories. ITAR also concerns Bob Twiggs, consulting professor of aeronautics and astronautics, whose students design, build and test small satellites and operate them from a control station at Stanford once they are launched.

Research scientist John Mester voiced frustration about ITAR's influence on the Satellite Test of the Equivalence Principle (STEP), a space program with collaborators from universities and research centers in the United States, United Kingdom, France, Germany, Italy, Switzerland and the Netherlands. Its researchers hope to investigate one of the most fundamental principles in physics, the equivalence of inertia and passive gravitational mass. Stanford leads the collaboration under Professor Francis Everitt. The Jet Propulsion Laboratory (JPL) provides management support for the project, which is funded by NASA and the European Space Agency (ESA). JPL told researchers in Mester's group that it couldn't give European colleagues design drawings or even have foreign collaborators in the same room as the instrumentation, which contains components from different labs. His group is working with NASA to obtain an ITAR Exemption for Fundamental Research from the State Department.

The importance of openness in research

If research is in the public domain, the presumption is that it's not restricted, said Dean of Research Charles Kruger. He read the government's definition of fundamental research to audience members: "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community."

But there's a catch: University research is not considered fundamental if it is funded by the U.S. government and the accepting institution agrees to government-imposed restrictions on when or whether information about the research or the results of the research may be disseminated. Stanford generally refuses to accept government-funded research that carries such limitations.

What the change to the ITAR has accomplished, Claus said in a follow-up interview, is to change the rules on dissemination in a way that affects aeronautics and astronautics research already funded and under way. And it is forcing the university to turn away new funding for space-based research because it precludes the openness so important in a research setting.

"Interpretations of ITAR have been quite ambiguous, and they've been very, very cautious," Parkinson said. "If you read the last part of the ITAR, you quickly figure out why: You go directly to jail, and the penalties are really tough."

Added Debra Zumwalt, Stanford's acting general counsel: "The problem with the ITAR regulations is that they are vague and subject to interpretation. I think properly interpreted we don't even come close to violating them." While Reagan's 1985 directive should solve the problem, Zumwalt said, "what you have to guard against is someone saying, 'ITAR does not really conflict with the order; it's just that we're being even more cautious.' So you need to make it really clear in the legislative history that the rules and any changes are intended to protect the ability of the university to do truly fundamental research without restrictions."

Researchers said they are no longer sure if it is safe to publish their research or speak about it outside the university. "If you're talking about things that are already available on the Internet and in publications, you're probably not increasing your risk," Zumwalt said.

Since 1969, Stanford has conducted no classified or weapons research. The university's current policy and its intent "are not characterized best by the word secrecy but by the word openness," Kruger said. "The general thrust of the policy is openness in the anticipation that the results will be published and shared publicly to let all members of the community be aware of what's going on, so all members of the community can participate." To emphasize the university's stance, the committee approved the recommendation to change the policy name from "Secrecy in Research" to "Openness in Research." The Faculty Senate must approve the change in the fall before it takes effect.

Strategies for surviving ITAR

The meeting participants tried to develop a strategy for life under ITAR. "Above all, don't go to jail," advised Parkinson. "If it looks like someone might go to jail, it isn't going to be just you going to jail. It'll be Stanford going to jail. It'll be a big mess for everyone."

How seriously do scientists take ITAR? Before a recent presentation in Sacramento, where Former Dean of Research Bob Byer showed a laser device used for flight, he checked to see that everyone in the audience was a U.S. citizen. "I was careful about that because I don't want to be the first one out the door," he said.

In the short term, researchers may have some success with "carve-outs" -- that is, saying, "This piece of my research is clearly not included."

In the middle term, Parkinson said he hoped for "more sensible interpretations of the ITAR regulations, particularly by NASA." But even if NASA is willing to interpret ITAR in a more reasonable way, Parkinson pointed out, the State Department would have to concur.

Sam Armstrong, right-hand to NASA's top administrator, Dan Goldin, recognizes the threat ITAR poses to universities and is trying to do something about it, Parkinson said. By working with Armstrong and others, scientists hope to speed the bureaucratic process. Professor Claude Canizares of MIT, who serves on the NASA advisory council with Parkinson, is heading a subcommittee that will push for NASA recommendations.

But in the long term, Parkinson said, researchers will need legislative relief. At least three congressional amendments are in the works -- through Defense, Housing and Urban Development, and Veterans Affairs appropriations subcommittees -- to shift certain jurisdictions from the State Department back to Commerce, according to Claus.

Byer recently delivered a presentation before the California Council on Science and Technology, whose board has representatives from all major research universities in California, CEOs from 20 major corporations and former members of government who have dealt with the issue.

"The council was quite sympathetic and will support any action that might be taken by the Association of American Universities," Byer said. "The sense around that table was that pressure has to be put on the State Department." Stanford is working aggressively with the Association of American Universities to communicate the position of academia to both the State Department and to NASA, according to Assistant Dean of Research Ann George.

Ultimately, Byer said, the quickest way to deal with the situation may be obtaining an Executive Order.

In the meantime, Umran Inan, professor of electrical engineering and chair of the Academic Council Committee on Research, asked: "To what extent will universities defend us?"

"The university's policy essentially says that as long as you're acting in good faith in the course and scope of your employment, that the university will defend and indemnify you," Zumwalt said. The policy on indemnification is in section 15.7 of the Administrative Guide.

Researchers who are not sure if work on their projects might violate ITAR can ask Kruger for advice.

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By Dawn Levy