Contents Inge Chapter 1-Administration of Export Controls Chapter 2-Developments in Export Administration APPENDIX D EXPORTS OF TECHNICAL DATA BY PUBLICATION U.S. DEPARTMENT OF COMMERCE WASHINGTON, D.C. A Study Pursuant to Section 120 of the Export Administration PUBLIC LAW NO. 95-52 EXECUTIVE SUMMARY Section 120 of the Export Administration Amendments of 1977 requires the Secretary of Commerce to examine the export of publicly available technical data and to report on its impact on the U.S. national security and foreign policy. Because it is virtually Impossible to prevent the export of information publicly available within the United States, the report assumes that the public availability of technical data within the United States is tantamount to their export. Thus, recommendations to monitor the export of technical data of necessity involve monitoring their public availability within the United States. The Department's assessment is that while technical data of conceivable adverse significance to U.S. national security and foreign policy are on occasion publicly available, the impact of their availability on the U.8. national security or foreign policy is likely to be minor. This conclusion is based on the premise that availability does not generally result in an effective transfer of technical data. The availability of technical data with no interaction between those providing and those acquiring the data is usually a relatively ineffective means of transferring technology. Moreover, most publicly available technical data do not describe state-of-theart technology. The availability of such technology is carefully restricted by the business community for proprietary reasons and by the U.8. Government for national security and foreign policy purposes. Additionally, the publle availability of technical data, in and of itself, does not overcome built-in obstacles to the absorption of that technology within another country and its diffusion throughout that nation. Monitoring publications and other means of public dissemination of technical data in the United States would require the creation of a new governmental capability, including a staff of technical experts, to analyze, catalog, and index the information reviewed. In assessing the feasibility of implementing a monttoring system, a number of factors are weighed in this report: (1) what would be the purpose of monitoring; (2) the system's likely effectiveness; (3) the Impact on the development and exchange of technical data and scientific Information within the United States; (4) the cost; and (5) the legal and consti tutional implications, including the impact on freedom of speech and freedom of the press. The report concludes that monitoring the public availability of technical data would be largely ineffective and unlikely to provide any real benefits. Further, a monitoring system would be extremely costly even on a modifled scale, could adversely affect the development and exchange of scientifle and technical information, and would raise legal and constitutional questions. Though the request from the Congress for the Section 120 study is concerned with monitoring the export of publicly available technical data, if such monitoring were to reveal that some sensitive technien) data were publicly avaitable, the question would arise as to what could be done about controlling the export of such data. The report reviews the Implications of establishing both a pre publication review and control system and a post-publication review and control system. It concludes that laplementation of any pre-publication review and control over the public availability of technical data or post-publication censorship of such data is likely to pose serious consequences for freedom of speech, freedom of the press, and freedom of scientific exchange. Publicly Available Sources of Sensitive Technical Data 131 133 133 This study was prepared in response to legislation enacted in June 1977, requiring the Department of Commerce to examine the export of publicly avallable technical data and to report on its impact on the U.S. national security and foreign policy. Section 120 of the Export Administration Amendments of 1977 requires the Secretary of Commerce to: ... conduct a study of the transfer of technical data and other information to any country to which exports are restricted for national security purposes and the problem of the export, by publications or any other means of public dissemination, of technical data or other information from the United States, the export of which might prove detrimental to the national security or foreign policy of the United States. Not later than 12 montha 130 SEMIANNUAL REPORT UNDER EXPORT ADMINISTRATION ACT gress his assessment of the impact of the export of such technical data or other information by such means on the national security and foreign policy of the United States and his recommendations for monitoring such exports without impairing freedom of speech, freedom of press, or the freedom of scientifle exchange. Such report may be included in the semiannual report required by section 10 of the Export Administration Act of 1969. In the Export Administration Regulations, the term "technical data" is defined as: information of any kind that can be used, or adapted for use, in the design, production, manufacture, utilization, or reconstruction of articles or materials. The data may take a tangible form, such as a model, prototype, blueprint, or an operating manual; or they may take an Intangible form such as technical service.' The transfer of technical data is of national security concern when it is likely to enhance the military potential of another nation in a manner that would be prejudicial to U.S. national security or the security of our allles. This can occur either when the technical data provide the technology to develop or upgrade the military equipment of a potential adversary or when they provide insights into U.S. military capabilities so that countermeasures can be developed. Foreign policy concerns arise when the transfer of technical data would enhance another nation's capabilities in a manner inconsistent with our foreign policies (for example, by enhancing the ability of a government to violate fundamental human rights or by threatening a neighboring country friendly to The United States) or when simply permitting any kind of transfer might be viewed as endorsement of a government whose overall policies are contrary to U.S. Interests. To prevent the transfer of technical data that would adversely affect U.8. national security or foreign policy, the Export Administration Regulations require exporters to obtain a validated export license (one requiring specific U.S. Government review and approval) prior to the export of most unpublished technical data to a potential adversary or other restricted destination.' Data that are generally available to the public in any form may be transferred freely to all destinations under a general license and do not require specific U.S. Government review. This report assesses the impact on U.S. national security and foreign polley of the transfer of technical data by publication or other forms of public dis semination and discusses the feasibility and the practicality of monitoring such transfers without impairing freedom of speech, freedom of the press, or freedom of scientifle exchange, "Monitoring," for purposes of this report, consists of post-publication review without any attempt to control or restrict public availability. Any review activIty beyond this scope, such as post-publicntion review and subsequent control or pre-publiention review and control, would involve attempts to restrict the publication or export of technical data that would otherwise be publicly available. Such control is beyond the immediate concern of this study, although the subject is discussed in Section IV. 15 CFR Sec. 379.1(n) (1979). » The procedures described in this Report apply to data relating to the design, producfon, or manufacture of dual use Items, Le., items that can have both civilian and military uses Export of such data is controlled under the Export Administration Regulations by the Department of Commerce The export of unpublished data on the design, production, or manufacture of arms, winmunition, or Implements of war on the US. Munitions List Is controlled to all destinations by the US Department of State under the International Traille In Arms Regulations (22 CFR 121 128). The conclusions of this study, based on the analysis presented in the body of the report, are discussed in Section V. II. ASSESSMENT Because it is virtually impossible to prevent the export of information that is publicly available within the United States, this report assumes that the public availability of technical data within the United States is tantamount to their export to all destinations, including countries to which experts are controlled for national security or foreign polley purposes. A few illustrations underscore the point. A foreign agent is free to enter any drugstore In Washington, D.C, and purchase the latest copy of Scientific American. There is no way to prevent him from subsequently sending the magazine home by diplomatic pouch or simply putting it in the mail. A visiting scientist can attend a trade show open to the public and collect varlous business brochures and carry them back to his country. A foreign professor can attend a technical symposium at a university in the United States and provide a summary of what transpired to his colleagues upon return to his country. Members of foreign embassies can subscribe to the technical journals published regularly by numerous professional societies. These can easily be made available to scientific institutions in their own countries. By visiting an outlet of the U.S. Government Printing Office, a foreign business person can purchase the latest technical and scientific publications of the National Technical Information Service (NTIS). These publications often deal with high-technology ɛubjects. Numerous other examples could be presented. The conclusion is obvious: For all practical purposes, once technical data are publicly available within the United States, their international availability must be assumed. Publicly Available Sources of Sensitive Technical Data It is extremely difficult to assess what publicly available technical data have national security and foreign policy implications. Such an evaluation would require an empirical search of all existing literature with potential national security or foreign policy Implications and an assessment of how that literature has been used or may be used in ways detrimental to our foreign policy or national security interests. Such research would likely produce few, if any, supportable conclusions. The variables are too many. For example, what tech nology is significant to whom and for what purposes at any given time? How does it relate to the needs of a particular country? What is the ability of a particular country to absorb it? Was it in fact absorbed and utilized? How important is it to overall military capabilities? These questions, and others, are largely unanswerable. One can, however, make some judgments about the kind of information available and assume that under certain conditions it could make a contribution, albelt immeasurable, to the military potential of a foreign country. Major publicly available sources of technical data are discussed below. (1) Popular Magazines: Microcomputers and bubble memory devices have frequently been the subject of articles in Scientific American, a popular monthly technical magazine. In fact, an article in the September 1977 issue provided Information on how to manufacture microcomputers. Microelectronics technology, permitting miniaturization of many command, control, and communications functions, has critical military applications in missiles and aircraft and In other areas where weight, size, and speed are |