Balancing the Needs for Space Research and National Security in the Context of the International Traffic in Arms Regulations
**Draft Report**
Final Revision – 11/22/04
Draft Final Course Report
ESD.10 – Introduction to Technology and Policy
8 December 2004
Prepared by:
David André Broniatowski
Nicole Jordan
Andrew Long
Matthew Richards
Roland Weibel
Balancing the Needs for Space Research and National Security in the Context of ITAR
*Draft*
Introduction
Export Control in a Changing Environment
Precautionary and Reactionary Approaches
Significance of Export Control in National Security
Current Precautionary Perspective
Military Superiority by Technological Superiority
Emergence of Asymmetric Threats to National Security______
Summary
ITAR and its Effect on Space Research Institutions
Creation of Export Restrictions
Key Concepts in ITAR
Formal Political Process of ITAR
Informal Political Process of ITAR
Innovation in Research Institutions and the Free Exchange of Knowledge
Reactionary Perspective
Universities and Collaboration
ITAR and Socioeconomics
Liability for Violations
Striking a Balance between Openness in Research and National Security: Improving ITAR
Dynamics of Innovation, Technical Superiority, and National Security
Improving ITAR Policy
Resolving Ambiguities Surrounding ITAR
Improving the ITAR Approval Process
Summary of Recommendations
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Balancing the Needs for Space Research and National Security in the Context of ITAR *Draft*
Summary of Recommendations
1
Introduction
United States export control laws have become a salient issue for academic space research institutions. Although export control has been used as a policy lever since the Cold War, the state of modern technology brought about by the computer revolution and shifts in the world economy have resulted in the categorization of some information as “deemed exports”. Academic space research institutions now find themselves in a climate of uncertainty. This chapter posits two fundamentally different ways of operating within this uncertain climate are identified: a precautionary stance and a reactionary stance.
Export Control in a Changing Environment
Since the beginning of the Cold War, the national security implications of exporting technology with military applications have concerned the United States. The concern over the export of technology stems from the fear that those devices could one day be used against the United States. During the Cold War, the United States’ concern over the export of technology was focused on the export of hardware that could potentially be used by the Soviet Union. As a result of these security concerns, the United States created strict export controls to both assess the potential threats caused by exported technology and to restrict exports as needed.
Today’s security and technological environments are dramatically different from those of the Cold War. The United States no longer faces one single threat, but must protect itself from a variety of possible adversaries, including nations and terrorists. Additionally, sharing information across nations has become much easier – both through the increased ease with which information is communicated through the Internet, and with the reduced cost of transportation[AA1]. Information can be transferred to a potential threat with the click of a mouse, the punch of an airline ticket, or the push of a mobile phone button.
As a result of shifts in the world economy, the United States has adapted export control laws to respond to the potential security threats from the export of technical information. The current United States policy with respect to the export of nonphysical technical information is identical to the regulations governing the export of technological hardware. The potential risks posed by the export of hardware is often clear. The security risks associated with the export of information, however, is often more difficult to assess because of imperfect understanding regarding potential uses of exported data. [AA2]The uncertainty surrounding this risk potential has inspired significant debate.
These social changes have heavily impacted scientific institutions, which seek to provide public benefit through the sharing of information and the creation of new technologies. Export control laws have affected space research in particular because of the international nature and the military potential of using the resulting technologies. The aspect of export control most relevant to space research is the Department of State’s International Traffic in Arms Regulations (ITAR), which regards all satellites and most space systems as munitions, subject to export control and licensing restrictions. This committee was tasked with determining the effect of ITAR on space research at U.S. Universities.
Precautionary and Reactionary Approaches
The uncertainty surrounding the potential security risks inherent in academic space research activities can be resolved in two ways: a precautionary approach and a reactionary approach. The main difference between these two solutions is dissimilar perceptions of risk. A precautionary stance to national security is one in which a decision maker deems a potential, but as yet unrealized, risk as important and responds by using restrictions and controls to mitigate any chance of future risk. Since the Cold War, the United States has primarily relied on precautionary policy by restricting the export of technical hardware. In following with past practice, the United States has adopted the same restrictive policy to handle the current potential security threats inherent in the transfer of technical space-based information.
The second response to future threats is a reactionary stance, or a “proof-before-action” policy. The basis of a reactionary stance is that present threats should be eliminated if they exist; however, there must be proof of the existence of future threats before regulations or restrictions are developed. In a reactionary stance, the decision maker understands the potential for future risk, but is willing to accept that risk in return for less oversight and control. Academic institutions traditionally take on a more reactionary stance with respect to the potential risk from the export of technical information. Many of today’s universities hold that the United States government’s precautionary stance on the export of technical information is preventing universities from doing cutting-edge research and broadening the general understanding of science, engineering, and technology.
This report focuses on ITAR’s effects on academic space research at U.S. universities, describes different policies and points of view that have been implemented to deal with the presence of risk, and makes recommendations to balance the needs for space research and national security in the context of ITAR[AA3]. Although the recommendations in this report are directed at academia, government, and research institutions, this report is accesible to readers with little or no background in export control policy.
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Significance of Export Control in National Security
Although the ITAR restrictions have been used to fulfill a variety of policy goals, they are aimed primarily at assuring the security of the United States. The national security community is similarly tasked with maintaining the safety and military primacy of the United States. Therefore, members of this community are more prone to take a precautionary stance towards export regulation. This chapter outlines a brief history of the link between scientific and technological innovation, and U.S. military superiority. A case is then made for a precautionary protection of these assets using export control as a policy lever to achieve added security.
Current Precautionary Perspective
The previous chapter defined a precautionary perspective as one in which a decision maker deems a potential risk as actionably important. Therefore, the decision maker responds to this risk through the use of restrictions and controls aimed at mitigating the likelihood of future risk.
In dealing with international technology transfer issues, the United States government [AA4]has advanced a precautionary policy by restricting the export of technical information and hardware via ITAR. Drivers for controlling technology transfer include maintaining national security and advancing U.S. foreign policy. Given the dependence of the U.S. military upon its technological superiority, it is understandable that the State Department does not wish for information and technology to be transferred that could undermine U.S. military power.
Military Superiority by Technological Superiority
U.S. Military Reliance on Technology
The United States enjoys primacy in military affairs around the globe due in large part to the relative superiority of its scientific and engineering[AA5] establishment. The U.S. military is able to apply a wide array of technologically enabled tools in conventional engagements and nuclear deterrence. This technological superiority today stems from World War II experience that investment in scientific research and development can win wars, a decision echoed by President Eisenhower during the Cold War when he declared technology to be a national priority.[1],[2] Space technology, in particular, was brought to the forefront of national attention following the Soviet launch of Sputnik, the first satellite, in 1957.
Recent conflicts in the Persian Gulf, Kosovo, and Afghanistan dramatically illustrate the prowness of the United States military against conventional military forces. The United States’ ability to leverage technology enables the US to outmatch potential adversaries in military capability while committing far fewer troops to the conflict.[3] For example, United States and South Korean forces on the Korean peninsula include are aided by Patriot missile batteries; Apache helicopters,squadrons; a mechanized infantry brigade; an air assault brigade; and various Intelligence, Surveillance, Reconnaissance (ISR) assets. The Command and Control, target acquisition, and electronic warfare capabilities of these assets are valuable force multipliers that protect provide a military balance on the peninsulaSouth Koreafrom despite a numerically superior foeNorth Korea.[4] Globally, the U.S. National Security Council is provided unmatched power projection capabilities by stealth aircraft, global positioning system (GPS) guided munitions, unmanned aerial vehicles, nuclear submarines, and ten carrier battle groups[5]. The relative scientific advantage enjoyed by the United States is a critical enabler of our military capabilities.[AA6]
Space technology in particular has become a vital component of the United States military. Since the first Persian Gulf War[S7], the U.S. military has relied onutilized space for many key [AA8]aspects of military operations: communications, navigation, missile warning, weather forecasting, and intelligence, surveillance, and reconnaissance. Satellites are efficient means to collect, transmit, and distribute information to the warfighter.[6] The use of GPS for precision strike is a telling example:
In 1999, GPS-guided weapons demonstrated all-weather precision strike capability during Operation Allied Force in Serbia and in Kosovo. During the Afghanistan conflict in 2001, precision munitions comprised two-thirds of all the bombs dropped during the first two months of the war. Of those precision munitions, sixty-four percent were GPS-guided Joint Direct Attack Munitions.[7]
Consequences of International Knowledge Sharing
Foreign entities employ a variety of techniques to glean militarily applicable knowledge from the United States. Knowledge transfer may occur through covert actions as well as overt methods. Whether channeled through illegal purchases of equipment from third party nations and industrial espionage by foreign agents or through academic exchanges and open literature, technology transfers can be militarily significant and regulations therefore must uphold the national security interests of the United States. Four steps compose the process of diffusion of U.S. technology to potential state adversaries:[8]
1)Develop an awareness about and target the acquisition of existing information and/or hardware
2)Transfer of information and/or hardware[AA9][S10]
3)Absorption of knowledge into indigenous innovation
4)Improvement of foreign nation’s military strength
Given the synergies between commercial and civil space activities and military and intelligence space activities, space research institutions are a rich target for foreign nations to acquire critical U.S. scientific knowledge, hardware designs, and technical skills. Furthermore, by monitoring the status of U.S. progress in various space system technologies, foreign nations are better able to allocate resources to counter U.S. space capabilities. [AA11]
International knowledge sharing can have monumental consequences for international security. German rocketry developed in the Second World War was acquired by the United States and the Soviet Union as German scientists were divided between the two at the end of the war. Nuclear weapons to be delivered by these vehicles were developed first in the United States, [AA12]technology that was acquired by the Soviet Union soon thereafter. Today, many nations that are not allied to the United States are seeking to close the current technology gap through indigenous innovation and acquisition of scientific knowledge from foreign nations. In the latter case, globalization and the information technology developments of recent years aid these efforts:
As one of the methods china uses to correct its deficiency with regards to qualified scientists and technology, “China has sent as many as 40,000 students and scholars to the United States to study between 1979 and 1986.”[9]
U.S. Level of Innovation Relative to Hostile Nations and Organizations
Export control must balance (1) the short-term benefit of compartmenting technology in U.S. space research institutions for exclusive exploitation by U.S. institutions who are willing and able to limit and/or exclude the participation of and contact with foreign researchers with [AA13](2) the longer-term danger of undermining future innovations. Reducing technology transfers to adversaries is counterproductive if export control mechanisms deter the domestic innovations that maintain U.S. primacy in science and technology. As such, it is important to understand the level of U.S. innovation relative to hostile nations and organizations.
Scientific output metrics include the number of scientific papers published, number of papers cited in other published papers, number of registered patents, and number of prizes won. In these categories, the United States excels. In 2002 for example, U.S. scientists published four times as many papers as Japan scientists, the second-ranking group. And in 2003, of the seven Nobel Prize laureates in physics, chemistry, physiology, and medicine, five were from the United States.[10] Research and development (R&D) statistics are even more dramatic. Composing only 4% of the world’s population, the United States spends 50% of the world’s total research and development budget with private and public investments exceeding $250 billion a year.[11] It is worth noting that some of the most prominent American Nobel laureates were immigrants to the U.S.
Although the United States maintains a wide lead in scientific output metrics and is allied to the other top innovators (Japan and European Union countries), recent trends in Middle Eastern countries show remarkable progress in scientific indicators (Figure 1). This increase in Middle Eastern papers indexed by Thomson ISI over the last two decades can be attributed to increases in indigenous R&D budgets by as much as 80%.[12] The rapid increase is underscored in the case of Iran—which has tripled its scientific publications in the last six years (Figure 1Figure 1).
Figure 1. Rising Technical Prominence of Middle Eastern Nations[13]
Emergence of Asymmetric Threats to National Security
In addition to the rise of threats from rogue nations, the September 11th attacks introduced a new security environment in which the asymmetric threats of terrorism became a fixture in U.S. society.[AA14] Although terrorism had struck the United States before, 9/11 increased the consequences of the threat by several orders of magnitude. This event fundamentally changed the risk preferences of decisionmakers in government and, in doing so, the enforcement of U.S. export control policy. The rise of asymmetric threats certainly increases the scope of technologies that can be applied to protecting American citizens (e.g., the Department of Homeland Security invests one billion dollars a year in research and development to support cyber security, and detection and decontamination technology for chemical and biological agents)[14], but terrorism may or may not alter the underlying rationale for ITAR restrictions.
Proponents of the reactionary perspective will point out that ITAR covers weapons that terrorists have not used to date and may not ever use due to their complexity.
The precautionary response to 9/11 is to demand more stringent ITAR regulations. From the precautionary perspective, The need to contain the proliferation of weapons of mass destruction is underscored by the threat of terrorist organizations buying or stealing such weaponsweapons of mass destruction underscores the need to curb proliferation, including more stringent export control policy. Relative to rogue states, terrorists are less likely to develop indigenous technologies. However, terrorists are certainly capable of buying or stealing technologically-enabled weapons systems. As such, it is in the interests of the United States to limit the proliferation of weapons technology. (Issues of exporting weapons, giving away weapons, and securing existing caches of weapons are pertinent to this line of discussion but are considered outside the scope of this paper.)
Just as technology played a critical role in winning the Cold War, technology can be employed today by the Department of Homeland Security to mitigate asymmetric threats. Currently the Department invests one billion dollars a year in research and development to support cyber security, and detection and decontamination technology for chemical and biological agents.[15]
Although the rise of asymmetric threats increases the scope of technologies that can be applied to protecting American citizens, terrorism does not alter the underlying rationale for ITAR restrictions. Relative to rogue states, terrorists are less likely to develop indigenous technologies. However, terrorists are certainly capable of buying or stealing technologically-enabled weapons systems. As such, it is in the interests of the United States to limit the proliferation of weapons technology. (Issues of exporting weapons, giving away weapons, and securing existing caches of weapons are pertinent to this line of discussion but are considered outside the scope of this paper.)