Issue Date: September 1, 2008
Freeing Basic Research
THE INCREASED FOCUS on national security since the terrorist attacks on Sept. 11, 2001, has changed things in the U.S. in a lot of ways. For university administrators and researchers, one change has been greater scrutiny of their work by the government to ensure that it cannot be used to aid terrorists.
One way the government does this is by including restrictive clauses in federal contracts and grants for university research. Such clauses are problematic because they often require the researchers to get prior approval to publish results or restrict the participation of foreign students and scientists in some projects. Most of these restrictions come from the Department of Defense, but the Departments of Energy and Homeland Security also use these measures, and evidence shows that the practice is on the rise.
A recent directive within DOD, however, may ease the problem in the future. On June 26, John J. Young Jr., the defense undersecretary for acquisition, technology, and logistics, issued a memo saying DOD "will not restrict disclosure of the results of contracted fundamental research unless the research is classified for reasons of national security or otherwise required by statute, regulations, or Executive Order."
It is hoped that the updated policy will improve negotiations between universities and federal agencies on research contracts. "I think it can have a positive effect because it recognizes that we need to cooperate and we need to publish to advance the state of the art," says Jacques S. Gansler, professor of public policy at the University of Maryland. Gansler was DOD undersecretary for acquisition, technology, and logistics during the Clinton Administration. He also cochaired the National Academy of Sciences (NAS) science and security committee that reported last year on the impacts of these restrictive clauses.
That report, "Science & Security in the Post 9/11 World," helped convince DOD to affirm the policy that basic research should not be restricted. Gansler briefed Defense Secretary Robert M. Gates on the problems spelled out in the study, and the department formed a task force that led to the Young memo.
Gansler tells C&EN that restricting basic research is counter to science and security policy established during the Reagan Administration. "This policy, reaffirmed when Condoleezza Rice was national security adviser in 2001, recognizes that these restrictions hurt our security more than help it, particularly in terms of economic competitiveness and advancing research," Gansler says. He is referring to National Security Decision Directive 189 (NSDD 189), which specifies as a U.S. policy that scientists must be able to perform fundamental research with as few restrictions as possible.
The Young memo helps DOD comply with NSDD 189 and may help reverse the trend of growing restrictions in federal grants and contracts.
A survey released shortly after the Young memo documents the trend. It details the frequency and type of restrictive clauses seen by research universities in 2007. Done by the Association of American Universities (AAU) and the Council on Governmental Relations (COGR), the survey is a follow up to an identical survey done in 2004.
Tobin L. Smith, vice president for federal relations at AAU and one of the preparers of the university survey, tells C&EN that the follow-up survey was a consequence of the NAS study.
"One of that report's recommendations was that AAU and COGR do the analysis on an annual basis," Smith explains. "We can't do that," he says, but because of the recommendation the two groups decided to revisit the survey in 2007.
The AAU/COGR report finds an increase in the use of restrictive clauses by the government over the past three years. "The findings suggest that federal agencies have become more control-oriented in their dealings with universities and that both agencies and industry prime contractors have become more careful to set forth compliance expectations in security-related areas," the report says.
Each of the two AAU/COGR surveys received data from the same 20 large research universities, which are assumed to broadly represent the entire U.S. research community. The schools provided information during a six-month period on clauses in contracts and grants that restricted the conduct of basic research. The 2008 survey reports that the universities saw 180 restrictive clauses in the second half of 2007, an increase from 138 instances reported during the same period in 2004. The latest survey says the number of restrictions on publications and foreign nationals was similar during both periods, but the increase came from entirely new types of restrictions. These include clauses on intellectual property restrictions, agency controls on research publication, and, more often, references to export-control regulations.
ONE POINT that comes out in the 2008 survey is that an acceptable restriction by one university might be viewed as unacceptable by another. Sometimes protracted negotiations over the federal contract would occur as universities tried to resolve conflicts between government requirements and the free flow of research information, the report states. In a growing number of instances, according to the report, the universities decided to decline the contract rather than meet the agency's conditions.
"I think the increase in restrictions we noticed is attributable to two things," AAU's Smith says. "The university people have gotten more sophisticated in identifying concerns in the language of the contracts. Earlier, some campuses just let them go, not realizing the potential implications of the restrictions," he says.
"The other thing we found was that the variations in the restrictive clauses are a bit more nuanced now than they were, not as direct," Smith notes. For example, he says, a contract could tell the university that the work may be subject to export controls or it may need export licenses to publish. Although these are not outright publication restrictions, he says, they do raise the question of whether the work is controlled or not.
Smith sees the relationship between export-control clauses and publication restrictions as sort of evil twins. "The performance of fundamental research, which includes plans to publish the results, is excluded from export-control requirements by definition. However, if you accept a contract clause that restricts your ability to publish research results, you are essentially admitting that your research is not fundamental and you are not going to share the research with the public," Smith says. This in turn makes the work subject to export controls, limitations on foreign participation, and other regulations, he notes.
A frequent problem universities see, according to Smith, is flow-down clauses. "There is a provision in the DOD acquisitions regulations that requires the prime contract language be passed down to any subcontractor," he says. "So if an industry contractor accepts publications restrictions in its contract and then subcontracts some basic research portion of the project to a university, that publication restriction flows down to the university."
Smith notes the DOD memo stating that basic research will not be restricted unless classified is an important start in trying to resolve this problem. But, he adds, DOD has not changed its acquisitions regulation to modify this flow-down provision. The NAS report also recommended changing this regulation, he says.
AMONG OTHER recommendations arising from the AAU/COGR survey is that DOD needs to make sure its contract officers are aware that no restrictions should be placed on the publication of, or the participation of foreign nations in, basic research projects to ensure the agency's practices are in line with NSDD 189. The survey notes that all federal agencies need to follow this principle, and it also recommends that the White House Office of Management & Budget could emphasize the point by issuing guidance for the agencies on when research restrictions are not appropriate.
Smith sees progress already, especially with the Young memo. "The memo was a good first step, but we need to continue to work on the flow-down issue," he says. "The real question on the memo is whether people are going to pay attention to it." He says, however, that he knows of at least one instance when a university used the DOD memo to get a restrictive clause rescinded.
Gansler views the problem with a broader perspective. "People do not recognize that these restrictions hurt our security more than help it, particularly in terms of economic competitiveness and advancing research," he says.
"We need to take security and technological leadership and balance them against those selected, small areas where we are really at risk and put restrictions on only those," Gansler says. "If you say we are not going to take any chances at all and restrict everything, then you're going to enormously damage the nation's research."
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