The Comment analyzes the proposed revisions to United States export regulations contained in the Deemed Export Advisory Committee’s 2007 report. While the Advisory Committee’s work was much needed and its recommendations laudable, this comment discusses why its recommendations must be narrowly tailored in order to preserve the competitiveness of U.S. businesses and universities in the globalizing world and to advance national security. Part II explains the regulations that govern U.S. exports, including the deemed export regulatory regime and how those rules implement a range of national obligations and interests. This Part also discusses the events that threatened to significantly burden the research process and establish strong disincentives to employ foreign students in critical university research, which led to the establishment of the Deemed Export Advisory Committee. Part III examines the evolution and policies underlying the systems of export regulations in the United States. Part IV discusses the findings, recommendations, and implementing actions of the Advisory Committee in specific detail, including its primary finding that the current deemed export rule does not reflect the realities of today’s national security needs or global economy. Part V analyzes the implications of these revisions by examining the costs of compliance for U.S. universities and businesses and by discussing its impact on foreign researchers. Further, this section analyzes how narrowing the list of controlled technologies facilitates the scientific research and innovation necessary to advance U.S. national security. Lastly, Part V analyzes the impact that sensitive but unclassified clauses in government research contracts have on foreign nationals in university research, in light of the government’s stated policies regarding export controls. Part VI recommends using the Visa Mantis screening process as the primary method of providing information to the federal government on national security threats posed by individuals seeking to enter the U.S., rather than relying on universities. This Part further recommends narrowing the list of controlled technologies to items not readily available to the international science and technology community beyond the scope of U.S. controls that should be intensively protected from dissemination because of substantive and significant application to national security. Lastly, this Part recommends reaffirming the stated policy of academic freedom established in NSDD-189. Finally, Part VIII concludes that in light of the globalized, competitive environment, government policies restricting the utilization of foreign national talent impose significant prohibitive barriers on university research, innovation, and collaboration. These barriers present a serious risk of adversely impacting U.S. national security. Thus, regulations should be narrowly-crafted to clearly and effectively address specific policy objectives without excessively and inappropriately burdening research and industry.
James Templin, University Research Under Siege: How the War on Terror Has Placed Academic Freedom under Fire, 26 J. Marshall J. Computer & Info. L. 547 (2009)