Order Code RL31695
Report for Congress
Received through the CRS Web
Balancing Scientific Publication
and National Security Concerns:
Issues for Congress
January 10, 2003
Dana A. Shea
Consultant
Resources, Science and Industry Division
Congressional Research Service ˜ The Library of Congress

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Balancing Scientific Publication and National Security
Concerns: Issues for Congress
Summary
The federal government has historically supported the open publication of
federally funded research results. In cases where such results presented a challenge
to national security concerns, several mechanisms have been employed. For the
results of fundamental research, the federal policy has been to use classification to
limit its dissemination. For advanced technology and technological information, a
combination of classification, export, and arms trafficking regulation is used to
inhibit its spread. The terrorist attacks of 2001 have increased scrutiny of
nonconventional weapons, including weapons of mass destruction, and a series of
research publications, including results showing that polio virus could be artificially
created, have increased concerns over whether publication of federally funded
extramural research results could threaten national security.
The current federal policy, as described in National Security Decision Directive
189, is that fundamental research should remain unrestricted and that, in the rare case
where it is necessary to restrict such information, classification is the appropriate
vehicle to do so. Other mechanisms restrict information flow on the international
level, where Export Administration Regulations (EAR) and International Traffic in
Arms Regulations (ITAR) control the export of items and technical information on
specific lists. Both the EAR and ITAR contain an exclusion for fundamental
research, but this exclusion is lost if prepublication review of research results for
sensitive information occurs.
Previously, the areas where export regulation and classification have occurred
have been in mathematical, engineering, and physical sciences. Contentious research
areas, such as genetic engineering and manipulation, have been overseen through
scientists’ self-regulation and monitoring. The 1975 Asilomar conference produced
a consensus statement on recombinant DNA research that formed the basis for the
National Institutes of Health Recombinant DNA Advisory Committee. Recent
research publications that have raised national security concerns have fallen outside
of the areas that traditionally have been regulated through classification and export
control and it is unclear whether traditional mechanisms will be equally effective.
There is a lack of consensus regarding what is the best method to balance
scientific publishing and national security. Some believe that the current method of
classification of research results is the most appropriate. They assert that imposing
new restrictions will only hurt scientific progress, and that the usefulness of research
results to terrorist groups is limited. Others believe that self-regulation by scientists,
using an “Asilomar-like” process to develop a consensus statement, is a better
approach. They believe that, through inclusion of scientists, policymakers, and
security personnel in the development phase, a process acceptable to all will be
found. Relying on publishers to scrutinize articles for information which might
potentially have security ramifications is another option. Finally, mandatory review
by federal funding agencies, either at the funding stage or before publication, is seen
as a potential federally based alternative. This report will be updated as events
warrant.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Examples of Research Results of Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Past and Current Controls on Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Current Federal Policy on Scientific Publication . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Mechanisms of Governmental Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Export Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Export of Technologies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Export of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Prepublication Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Recent Policy Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Card Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Department of Defense Draft Directive . . . . . . . . . . . . . . . . . . . . . . . . 14
Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Response of Professional Societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Maintaining the Status Quo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Self-regulation by Scientists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Regulation by Publishers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Federal Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Prepublication Review of Sensitive, But Unclassified Results . . . . . . 24
Security Review at the Funding Stage . . . . . . . . . . . . . . . . . . . . . . . . . 25
Oversight of the Department of Homeland Security . . . . . . . . . . . . . . . . . . 26
Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
This report was prepared under the general supervision of Glenn McLoughlin,
Specialist, Resources, Science and Industry Division, Congressional Research
Service.

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Balancing Scientific Publication and National
Security Concerns: Issues for Congress
Introduction
Recent publication of scientific research results that might be used by terrorist
groups has led some policymakers to question whether the method used to control
scientific research results, namely classification, should be revisited. The
Administration, legislators, and scientific professional societies are reexamining
policies relating to scientific information that might threaten national1 or homeland2
security. In March 2002, executive branch agencies were instructed by Assistant to
the President and Chief of Staff Andrew Card to determine if government-owned
information, especially that regarding weapons of mass destruction, was being
inappropriately disclosed. Also in March 2002, the Department of Defense (DOD)
promulgated a draft regulation expanding information controls to basic and applied
science research and development.3 In October 2002, the House of Representatives’
Committee on Science held a hearing regarding balancing openness and security in
research. Scientific professional societies are engaged in developing self-regulatory
mechanisms to address the concerns of the national security community.
Policymakers may wish to determine what changes, if any, should be made to current
policy regarding publication of federally funded research results, and whether the
options currently under consideration adequately balance the concerns and needs of
the security and scientific communities.
1National security is defined in Executive Order 12356 as “the national defense or foreign
relations of the United States.” Both broader and narrower definitions of national security
have been suggested as well. For a discussion on this topic, see Arvin S. Quist, Security
Classification of Information. Volume 2. Principles for Classification of Information
(K/CG-1077/V2), (Oak Ridge, TN: Oak Ridge National Laboratory), September 1989,
Chapter 5.
2Homeland security, as described by the mission statement of the Office of Homeland
Security, comprises the federal government’s efforts, in coordination with state and local
governments and the private sector, to develop, coordinate, fund, and implement the
programs and policies necessary to detect, prepare for, prevent, protect against, respond to,
and recover from terrorist attacks within the United States. See Executive Order 13228,
issued October 8, 2001.
3Basic research is experimental or theoretical work undertaken primarily to acquire new
knowledge of the underlying foundation of phenomena and observable facts, without any
particular application or use in view. Applied research is also original investigation
undertaken in order to acquire new knowledge. It is, however, directed primarily towards
a specific practical aim or objective. Organisation for Economic Co-operation and
Development, Frascati Manual, (OECD), 2002, p. 30.

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CRS-2
Since the 1950s, the United States has developed an established policy of
identifying prior to publication areas of basic and applied research where information
controls may be required. This research, typically related to weapon systems or
nuclear technologies, may be designated classified and have strict information
controls placed upon it. When fundamental research is not classified, no other
information controls are placed upon it.
This policy remained essentially unchanged until the 1970s when controls were
developed on the export of domestically developed, advanced, dual-use technologies
and technological information.4 Under export control regulations, even if a
technology is barred from export, the fundamental, basic science underlying the
technology is generally exempt from controls and can be published in the open
literature.
In the early 1980s, the access of foreign students and scientists to technological
information that might fall under export control regulations became the focus of a
Department of Defense effort to restrict such information presented in classrooms
and conferences. In 1985, following a report from the National Academy of Sciences
asserting that openness in science leads to stronger long-term security,5 President
Reagan issued National Security Decision Directive 189 (NSDD-189), reiterating that
fundamental research results were to be controlled only through classification.
NSDD-189 continues to define federal policy on restricting the dissemination of
fundamental research results.
Since that time, the conduct of science and the composition of the scientific
community have become increasingly international, and there have been growing
concerns about the effectiveness of export control regulations. The international
spread and development of dual-use technologies has made the United States less
often the sole source of some technology. Concern that export control regulation is
negatively impacting domestic business prosperity has led to attempts to lower the
trade barriers erected by export control. Additionally, the presence of foreign
students and scientists in the United States has increased the availability of education
and training in basic skills which may be transferred to other countries by the return
of those individuals to their home countries.
Since the terrorist events of 2001, there has been a resurgence of concern that
open publication of scientific and technological results may provide unwitting
assistance to other nations or terrorist groups in developing weapons of mass
destruction. Scientific research is conducted in many disparate areas, and historically
the areas where the balance between scientific openness and national security
required consideration have been centered in the mathematical and physical sciences
and their applications, such as aerospace engineering, advanced computer
technology, and cryptography. Research in molecular biology – the origins of
virulence, development of vaccines, and the genetic manipulation of biological
4Dual-use technologies are those technologies that have both a legitimate civilian and
military use.
5National Academy of Sciences, Scientific Communication and National Security,
(Washington DC National Academy Press), 1982.

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CRS-3
agents – has recently emerged as an area of concern because of its potential relevance
to biological weapons of mass destruction. Whether the current method of only using
classification to limit the dissemination of fundamental research results is the best or
most effective method of maintaining national security is an open question. It is
unclear whether classification will be effective when applied to research areas that
have not historically been classified, nor is it clear that a system of classified research
will be embraced by scientists working in these areas.
Several competing proposals have appeared regarding how to control federally
funded research results, ranging from strict information control on all federally
funded research to maintaining the status quo. Some scientific professional societies
have suggested that self-regulation, either by scientists themselves or through the
editors of scientific journals, would be an appropriate mechanism for limiting the
publication of research results that might aid terrorist groups. The development of
a new category of “sensitive, but unclassified” information to protect information
which does not require classification, but may still have the potential to damage
national security, might encompass such research results. Much concern and debate
is occurring over the potential impact of these options.
A fundamental trade-off between scientific progress and security concerns is the
crux of the policy debate. The scientific enterprise is based upon open and full
exchange of information and thrives on the ability of scientists to collaborate and
communicate their results. On the other hand, this very openness provides potential
enemies with information that may allow them to harm U.S. interests. The
technological advances arising from scientific breakthroughs contribute to economic
prosperity, but the openness required to continue this process creates risks, which
may be perceived as more acute since September 11, 2001. What level of risk caused
via publication of scientific advances is acceptable in the eyes of policymakers and
the public? How will controlling the publication of federally funded research results
increase safety? If policymakers determine that more control of these sorts of
research results is warranted, what possible mechanisms could be used to oversee
these results?
This report presents recent examples of scientific research results whose
publication raised concern regarding the threat they potentially pose to national
security. Past and current information control mechanisms are discussed, along with
current federal policy concerning dissemination of fundamental research results
through the open literature. Recent policy actions regarding dissemination of federal
information and federally funded research results are outlined, along with the
responses these actions have evoked from various professional societies and
publishers. The advantages and disadvantages to potential policy actions addressing
classification and other controls over open publication of federally funded research
results are also described.

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Examples of Research Results of Concern
Recently, the publication of several scientific articles reignited concerns that
information published in the open literature may aid terrorist groups in developing
weapons of mass destruction.
In 2000, researchers at the Co-operative Research Centre for the Biological
Control of Pest Animals (CRC) in Australia unintentionally genetically modified
mousepox virus to be able to infect mice, that had been previously vaccinated.6 The
publication of this result was greeted with criticism due to its weapons potential.7 Dr.
Bob Seamark, the Chief Executive Officer of CRC, stated during an interview with
the Australian Broadcasting Corporation:
If we genetically modified Smallpox in a similar way to the way we modified the
Mousepox, there’s every chance it would become a more virulent and probably
more lethal virus than it is at the present moment.8
Another article widely viewed as having bioweapon potential was published in
July 2002. Researchers at the State University of New York at Stony Brook
assembled functional poliovirus from chemical sequences ordered out of a scientific
mail-order firm.9 Dr. Eckard Wimmer, the lead scientist, described the experiment
as graphic proof that bioterror agents can be made without a terrorist ever having
access to dangerous microbes.10
Other scientific publications have been viewed as potentially aiding terrorist
groups or countries. In October 2001, the full genome of Yersinia pestis, the bacteria
which causes bubonic and pneumonic plague, was published in the journal Nature.11
6Ronald J. Jackson, Alistair J. Ramsay, Carina D. Christensen, Sandra Beaton, Diana F.
Hall, and Ian A. Ramshaw, “Expression of Mouse Interleukin-4 by a Recombinant
Ectromelia Virus Suppresses Cytolytic Lymphocyte Responses and Overcomes Genetic
Resistance to Mousepox,” Journal of Virology, Vol. 75 (2001), pp. 1205-1210.
7Joan Stephenson, “Biowarfare Warning,” Journal of the American Medical Association,
Vol. 285, No. 6 (2001), p. 725.
8A transcript can be found online at [http://www.abc.net.au/ra/elp/innovatn/inots809_a.htm].
9Jeronimo Cello, Aniko V. Paul, and Eckard Wimmer, “Chemical Synthesis of Poliovirus
cDNA: Generation of Infectious Virus in the Absence of Natural Template,” Science, Vol.
297 (August 9, 2002) pp. 1016-1018, published online July 11, 2002;
10.1126/science.1072266 (Science Express Reports)
10Rick Weiss, “Polio-Causing Virus Created in N.Y. Lab: Made-From-Scratch Pathogen
Prompts Concerns About Bioethics, Terrorism,” The Washington Post, July 12, 2002.
11J. Parkhill, B.W. Wren, N.R. Thomson, R.W. Titball, M.T.G. Holden, M.B. Prentice, M.
Sebaihia, K.D. James, C. Churcher, K.L. Mungall, S. Baker, D. Basham, S.D. Bentley, K.
Brooks, A.M. Cerdeno-Tarrage, T. Chillingworth, A. Cronin, R.M. Davies, P. Davis, G.
Dougan, T. Feltwell, N. Hamlin, S. Holroyd, K. Jagels, A.V. Karlyshev, S. Leather, S.
Moule, P.C.F. Oyston, M. Quail, K. Rutherford, M. Simmonds, J. Skelton, K. Stevens, S.
Whitehead and B.G. Barrell, “Genome Sequence of Yersinia pestis, The Causative Agent
(continued...)

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Simultaneous with the release of this article was the publication of an accompanying
news article in Nature Science Update which highlighted the existence of “a debate
about whether releasing genomic information for virulent diseases, such as plague
or smallpox, might aid malicious science.”12 Researchers at the University of
Pittsburgh identified key proteins which provide Variola major, the causative virus
of smallpox, to have high virulence.13 Accompanying this article was a commentary
explaining how “the work is far more likely to stimulate advances in vaccinology or
viral therapy than it is to become a threat to biosecurity.”14 Publication of successes
in “reverse genetics” has led some to believe that other viruses could be constructed
in the laboratory without having access to actual virus ahead of time.15
These articles have led some to question the wisdom of openly publishing
information that could be used to threaten national security.16 An editorial in New
Scientist stated:
That this mind-boggling quantity of information is going to transform medicine
and biology is beyond doubt. But could some of it, in the wrong hands, be a
recipe for terror and mayhem?17
Bioethicist Arthur Caplan from the University of Pennsylvania was reported as
saying:
We have to get away from the ethos that knowledge is good, knowledge should
be publicly available, that information will liberate us. ... Information will kill us
in the techno-terrorist age, and I think it’s nuts to put that stuff on Web sites.18
11(...continued)
of Plague,”Nature, Vol. 413 (October 4, 2001) pp. 523-527.
12J. Whitfield, “Black Death’s DNA,” Nature Science Update, October 4, 2001, found online
at [http://www.nature.com/nsu/nsu_pf/011004/011004-12.html].
13Ariella M. Rosengard, Yu Liu, Zhiping Nie, and Robert Jimenez, “Variola Virus Immune
Evasion Design: Expression of a Highly Efficient Inhibitor of Human Complement,”
Proceedings of the National Academy of Sciences of the United States of America, Vol. 99
(June 25, 2002) pp. 8808-8813.
14P.J. Lachmann, “Microbial Subversion of the Immune Response,” Proceedings of the
National Academy of Sciences of the United States of America, Vol. 99 (2002) pp.
8461-8462.
15Sylvia Pagan Westphal, “Ebola Virus Could Be Synthesised,” New Scientist, July 17,
2002, accessed online at [http://www.newscientist.com/news/news.jsp?id=ns99992539]
16For an overview of the policy implications of the successful synthesis of poliovirus, see
CRS Report RS21369 Synthetic Poliovirus: Bioterrorism and Science Policy Implications
by Frank Gottron
17“Surfing for a Satan Bug. Why Are We Making Life So Easy for Would-be Terrorists?”
New Scientist, July 20, 2002, p. 5.
18Eric Lichtblau, “Response to Terror; Rising Fears That What We Do Know Can Hurt Us,”
Los Angeles Times, November 18, 2001, p. A1.

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Past and Current Controls on Information
Past examples of excluding research from publication in the open literature have
focused on military applications such as cryptography and nuclear weapons. Prior
to U.S. entry into World War II, physicists in the private sector doing research on
nuclear fission voluntarily stopped publishing results in scientific journals, fearing
that they would provide crucial information to Germany’s nuclear bomb project.19
A joint National Academy of Sciences–National Research Council Advisory
Committee on Scientific Publications was established to restrict publication on
nuclear fission. While the United States was involved in World War II, this
committee secured the cooperation of scientific journals in restricting the transfer of
scientific information within the United States.20
Nuclear power is another area where information controls have been instituted.
Private industry was permitted to explore applications of nuclear power under the
Atomic Energy Act of 1954. Prior to this act, nuclear energy activities were
protected by the federal government with security and secrecy programs. The federal
government retains authority over results which relate to atomic weapons, production
of special nuclear material, and use of special nuclear material in the production of
energy.21 Information developed in those areas, even if developed privately without
federal government aid, is regarded as “born classified.”
Genetic engineering and recombinant species were an area of great contention
in the 1970s, and there were calls for regulation of the methods for manipulating
DNA and of experiments containing genetically engineered species. In response to
criticism and public pressure, a moratorium on such research was set. In 1975, at the
Asilomar conference center in Pacific Grove, California, discussion on how to self-
regulate such research was held. A consensus statement regarding a voluntary
moratorium on some types of recombinant research and an increase in security and
containment requirements for other research areas successfully allayed many public
concerns, and provided a framework to address such issues. This consensus
statement formed the starting point for rules developed by the National Institutes of
Health Recombinant DNA Advisory Committee, which was formed to oversee such
research.22
19Peter J. Westwick, “In the Beginning: The Origin of Nuclear Secrecy,” Bulletin of the
Atomic Scientists, Vol. 56, (November/December 2000), pp. 43-49.
20Rexmond C. Cochrane, The National Academy of Sciences: The First Hundred Years,
1863-1963, (Washington, D.C.: National Academy of Sciences), 1978, pp. 385-387.
21Harold Relyea, Silencing Science: National Security Controls and Scientific
Communication, (Norwood, New Jersey: Ablex Publishing Corporation), 1994, pp. 94-96.
22An overview of the Asilomar conference can be read in Donald S. Fredrickson’s “Asilomar
and Recombinant DNA: The End of the Beginning,” found in Biomedical Politics,
(Washington, DC: National Academy Press), 1991, pp. 258-298.

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Current Federal Policy on Scientific Publication
In the United States, there has long been support for a policy of not restricting
publication of the results of federally supported extramural and intramural research,
except where classified for national security reasons. This position was restated in
1985 by President Ronald Reagan in National Security Decision Directive 189, which
said:
It is the policy of this Administration that, to the maximum extent possible, the
products of fundamental research remain unrestricted. It is also the policy of this
Administration that, where the national security requires control, the mechanism
for control of information generated during federally-funded fundamental
research in science, technology and engineering at colleges, universities and
laboratories is classification. Each federal government agency is responsible for:
a) determining whether classification is appropriate prior to the award of a
research grant, contract, or cooperative agreement and, if so, controlling the
research results through standard classification procedures; b) periodically
reviewing all research grants, contracts, or cooperative agreements for potential
classification. No restrictions may be placed upon the conduct or reporting of
federally-funded fundamental research that has not received national security
classification, except as provided in applicable U.S. Statutes.23
Fundamental research is also defined within NSDD-189:
‘Fundamental research’ means basic and applied research in science and
engineering, the results of which ordinarily are published and shared broadly
within the scientific community, as distinguished from proprietary research and
from industrial development, design, production, and product utilization, the
results of which ordinarily are restricted for proprietary or national security
reasons.24
NSDD-189 has not been superceded and continues to be the government policy
regarding controls on federally-funded research results. In the wake of the terrorist
attacks of September 2001, Assistant to the President for National Security Affairs
Condoleezza Rice reaffirmed this position in a letter to Dr. Harold Brown, co-
Chairman of the Center for Strategic and International Studies, by stating,
...this Administration will review and update as appropriate the export control
policies that affect basic research in the United States. In the interim, the policy
on the transfer of scientific, technical, and engineering information set forth in
NSDD-189 shall remain in effect...25
Executive branch agencies have followed this general policy by requiring that
the results of agency-funded extramural research should be published promptly and
23White House, Office of the President, National Security Decision Directive-189, 1985.
24Ibid.
25Assistant to the President for National Security Affairs Condoleezza Rice, letter to Dr.
Harold Brown, co-Chairman, Center for Strategic and International Studies, November 1,
2001.

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CRS-8
with wide dissemination. For example, the National Science Foundation research
policy states:
NSF expects significant findings from research and education activities it
supports to be promptly submitted for publication, with authorship that
accurately reflects the contributions of those involved. It expects investigators
to share with other researchers, at no more than incremental cost and within a
reasonable time, the data, samples, physical collections and other supporting
materials created or gathered in the course of the work. 26
Research performed under the auspices of National Institutes of Health funding
is also to be disseminated to the public:
It is NIH policy to make available to the public the results and accomplishments
of the activities that it funds. Therefore, PIs [principal investigators] and grantee
organizations are expected to make the results and accomplishments of their
activities available to the research community and to the public at large, and to
effect their timely transfer to industry for commercialization.27
The Department of Defense also encourages the publication of research it funds.
For example, Office of Naval Research policy states:
Publication of results of the research project in appropriate professional journals
is encouraged as an important method of recording and reporting scientific
information.28
In general, federal agencies appear to agree that there should be open publication
of research results when the research has been funded by taxpayer dollars.
The exception is when research is classified. Classified research projects, even
those performed by scientists outside of government laboratories, are not published
in the open literature, with information being transferred only between those who
obtain requisite clearance.29 Some classified research areas are later declassified, and
the advances developed in these programs used more generally.30
26The National Science Foundation, National Science Foundation (NSF) Grant General
Conditions (GC-1), July 1, 2002, p. 17.
27National Institutes of Health, NIH Grants Policy Statement (Rev. 03/01), U.S. Department
of Health and Human Services, March, 2001, p. 122.
28Office of Naval Research, Educational Institutions, Nonprofit Institutions, and For-profit
Organizations: Research Grant Terms and Conditions, U.S. Department of Defense, July,
2001, p. 6.
29Some classified research is contracted to private industry or academic groups.
30An example would be adaptive optics technology, which was declassified in 1991 and now
is used in astronomical telescopes.

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Mechanisms of Governmental Control
Current mechanisms for federal agencies to control the publication of federally
funded extramural research results include: classification, export and arms trafficking
regulations, and specifications in federal contracts, such as prepublication review.
Classification
Generally, classification is to be used when it is necessary to control scientific
information.31 The advent of classified research led most universities to clarify their
positions on acceptance of funding for classified research. Some universities elect
not to perform classified research on campus, espousing that this is contrary to the
beliefs of the university or their university charters. For example, Kansas State
University maintains:
...[T]he policy of the university is that classified research may not be carried out
under university auspices by any faculty member, unclassified professional
member, student, or other university personnel.32
Universities that perform classified research typically establish research
facilities specifically to handle classified materials and research. These research
facilities are often located off-campus. Examples of such universities include the
Massachusetts Institute of Technology and the Johns Hopkins University.33 Some
universities have developed mechanisms by which classified research may be
approved on a case-by-case basis.34
Export Controls
Export of Technologies. Another mechanism of federal control of private
research results occurs through export control and arms trafficking regulations. The
Department of Commerce implements Export Administration Regulations (EAR)
which bar the export of items, technology, and technological information found on
31In addition to the 1985 NSDD-189, Executive Order 12958, issued April 17, 1995,
describes the general classification policy of the federal government. It, in section 1.5,
describes that scientific, technological, or economic matters relating to the national security
may be classified, and, in section 1.8b, reiterates that basic scientific research information
not clearly related to the national security may not be classified.
32Office of Academic Affairs, University Handbook, Kansas State University, June, 2001,
Section G.
33 David Malakoff, “Universities Review Policies for Onsite Classified Research,” Science,
Vol. 295 (February 22, 2002) pp. 1438-1439.
34For example, University of North Carolina at Chapel Hill, University of Colorado,
University of Virginia, and University of Michigan have each established mechanisms for
faculty members who wish to engage in classified research to apply to for permission from
the university administration on a case-by-case basis.

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CRS-10
the Commerce Control List to foreign countries without appropriate export license.35
The Department of State implements the International Traffic in Arms Regulations
(ITAR) which regulate the export of items, technology, and technological
information maintained on the Munitions Control List.36
Export control laws primarily constrain the flow of technology and technical
information from the United States to other nations.37 EAR covers the transfer of
dual-use commercial goods, while ITAR is focused on armaments and military
technologies. These regulations exist to prohibit the proliferation of certain specific
technologies for either national security or trade reasons.
Because of the technological breadth of EAR and ITAR, private researchers,
using private funds, sometimes perform research in areas that fall within these
regulations. For example, research relating to aerospace technology or cryptography
would fall under export regulation. Often, universities performing basic research are
uncertain whether the research being performed at the institution falls under EAR or
ITAR restrictions.
Both EAR and ITAR possess exemptions for “fundamental research.”
Fundamental research is defined under ITAR as:
... basic and applied research in science and engineering where the resulting
information is ordinarily published and shared broadly within the scientific
community, as distinguished from research the results of which are restricted for
proprietary reasons or specific U.S. Government access and dissemination
controls. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of
scientific and technical information resulting from the project or activity, or
(ii) The research is funded by the U.S. Government and specific access and
dissemination controls protecting information resulting from the research are
applicable.38
Universities generally rely on the fundamental research exclusion to exempt the
research performed there from export control. If the university research is not
exempt through the fundamental research exclusion, export licensing must be
35The Commerce Control List for Export Administration Regulation can be found online at
[http://w3.access.gpo.gov/bis/ear/pdf/indexccl.pdf], last visited on January 10, 2003.
36The Munitions Control List for the International Traffic in Arms Regulations can be found
online at [http://www.access.gpo.gov/nara/cfr/waisidx_01/22cfr121_01.html], last visited
January 10, 2003.
37New legislation applying export control of similar information has recently been passed
in the United Kingdom. This legislation generally widens export control, but limits the
ability of ministers to make export regulations that interfere with scientific research,
material being published, or material already in the public domain. For the text of the
Export Control Act of 2002 see
[http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmbills/005/2002005.htm].
38The definition given here is from 22 CFR 120.11. It varies slightly from the definition
given in NSDD-189 and from the definition given in 15 CFR 734.8.

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CRS-11
obtained and information controls with respect to foreigners performed. Failure to
obtain such a license can result in prosecution and large fines.
Export of Information. A further complication to export regulation is the
concept of a “deemed export.” A deemed export is transfer of information, not
physical items, to a foreign national without first obtaining an export license for that
technology. This provision has been especially troubling for universities, as foreign
students and researchers who attend graduate-level classes may be exposed to
information relating to technology which falls under export controls.
There have been cases where export control of information and scientific
research have coincided. In the 1980s, research papers were removed by the
Department of Defense from a scientific convention because foreign nationals
ineligible for export licenses would be attending, and other conventions were held
in private session, so as to not be in violation of the deemed export aspect of these
regulations.39 Recently, some universities have reported problems in collaborations
with foreign researchers, and cited, as an example, difficulty in transferring some
technologies developed by foreign graduate students to industry.40
The Export Administration Act of 1979 (P.L. 96-72) was not reauthorized by
the 107th Congress. As a consequence, President George W. Bush invoked the
International Economic Emergency Powers Act (P.L. 95-223) to maintain export
administration regulation. While the International Economic Emergency Powers Act
continues export administration regulation, the penalties for violating this act and the
enforcement authority granted under this act are less than those under the Export
Administration Act of 1979.41
The USA PATRIOT Act (P.L. 107-56) created another mechanism to block
certain foreign nationals from obtaining specific information. Access to or
information about biological and toxin agents on the “select agent” list42 is barred to
individuals, including students, originating from countries which support terrorism.
Under the USA PATRIOT Act, universities are charged with improving security and
access controls to select agents, and the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (P.L. 107-188) requires sites with select
39For example, in 1984 the 25th Structures, Structural Dynamics and Materials Conference
closed two proceedings sessions to foreign nationals. For other examples, see Harold
Relyea, Silencing Science: National Security Controls and Scientific Communication,
(Norwood, New Jersey: Ablex Publishing Corporation), 1994, pp. 125-126.
40Testimony by the Association of American Universities before the Senate Committee on
Foreign Relations, Subcommittee on International Economic Policy, Export, and Trade
Promotion, June 15, 2000.
41For more information on the reauthorization of the Export Administration Act of 1979, see
CRS Report RL30169 Export Administration Act of 1979 Reauthorization, coordinated by
Ian F. Fergusson.
42The select agent list consists of viruses, bacteria, rickettsiae, fungi, and toxins and is
determined by the Secretary of Health and Human Services. Agents on the select agent list
are considered to have the potential to pose a severe threat to public health and safety.

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CRS-12
agents to keep a current inventory of those agents and register their possession with
the Department of Health and Human Services.
Most universities generally reconcile their dual roles, that of providing
educational and research opportunities to their students while simultaneously
remaining in compliance with the limits of export regulations, by relying on the
fundamental research exclusion. Some universities affirm their role as disseminators
of knowledge and do not identify the nationality of students attending classes, citing
the incompatibility of closed classrooms with their academic charter.43
Prepublication Review
Some federal funding agencies, such as the U.S. Army Research Laboratory,
Army Corps of Engineers, the Department of Energy, and the Federal Aviation
Administration, occasionally incorporate publication restrictions in the terms and
conditions of their research contracts when the area of research either may have
potential defense applications or contain sensitive material.44 In general, these
restrictions have not been applied to entire research fields, but, instead, have been
targeted at research considered to be of import or relevance to national defense or
where portions of a contract may contain classified information. An example would
be an instance at the University of Minnesota where a prepublication review clause
was required in a sub-contract performed by the university. Even though no
classified information was handled by the University of Minnesota, classified
material was present in the main contract, and prepublication review to determine no
classified material appeared in any open publication was required.45
There have been recent reports of university administrators growing uneasy
about such prepublication review clauses within funding vehicles. Officials at Duke
University reportedly renegotiated two contracts and rejected one contract which had
prepublication clauses inserted into them by the Department of Defense. The latter
contract was rejected when the prepublication clause could not be removed.46
Administrators at the Massachusetts Institute of Technology have refused contracts
including prepublication review language.47 At the University of California-Davis,
43For example, access to classrooms, libraries, laboratories, and specialized research
facilities of the University of California is open, without regard to citizenship, residency
status, or visa category. Questions regarding citizenship status may not be asked of those
entering such facilities unless a special exception has been granted. Office of the President,
University of California, Operating Guidance Memo No. 00-05, December 15, 1999.
Implementation of this policy is under review since the passage of the USA PATRIOT Act.
44Anne Marie Borrego, “Colleges See More Federal Limits on Research,” Chronicle of
Higher Education, November 1, 2002, p. 24.
45As related in the minutes of the University of Minnesota Senate on April 25, 2002, found
online at [http://www1.umn.edu/usenate/usen/020425sen.html].
46 David Malakoff, “Universities Review Policies for Onsite Classified Research,” Science,
Vol. 295 (February 22, 2002) pp. 1438-1439.
47Anne Marie Borrego, “Colleges See More Federal Limits on Research,” Chronicle of
(continued...)

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CRS-13
a grant awarded in January 2002 by the Federal Aviation Administration has been
postponed due to conflicts between a prepublication clause in the contract and
University of California-Davis policy.48
Recent Policy Actions
The catastrophic terrorist attacks of 2001 led to an executive branch
reevaluation of the treatment of government-owned information. In the wake of
these events, many government agencies evaluated information which was available
to the public through government websites,49 and began to reassess documents which
had recently been declassified.50
The Card Memorandum
This process was marked by the issuance of a memorandum on March 19, 2002
sent by Assistant to the President and Chief of Staff Andrew Card to executive
branch departments and agencies.51 The “Card memo” cautioned that information
possessed by the federal government which could be reasonably expected to assist
in weapons of mass destruction development or use should not be inappropriately
disclosed. Additionally, the guidance contained within the Card memo reinforced the
need to protect “sensitive, but unclassified” information related to homeland security.
The term “sensitive, but unclassified” was not defined in the memorandum and
it is not clear how sweepingly construed this category might be. Further guidance
regarding the use of this category is found within the memo itself:
The need to protect such sensitive information from inappropriate disclosure
should be carefully considered, on a case-by-case basis, together with the
benefits that result from the open and efficient exchange of scientific, technical,
and like information.52
47(...continued)
Higher Education, November 1, 2002, p. 24.
48Andy Fell, “Homeland Security Goals Create Impact: Campus Responds To Satisfy Range
of New Terrorism Laws,” Dateline UCDavis, November 22, 2002, found online at
[http://www-dateline.ucdavis.edu/112202/dl_terror.html].
49The website OMB Watch maintains a list of information that has been removed from
government websites at [http://www.ombwatch.org/article/archive/104/].
50William J. Broad, “Nation Challenged: Domestic Security: U.S. Is Tightening Rules On
Keeping Scientific Secrets,” The New York Times, February 17, 2002.
51The Card memo contained guidance from the Acting Director of the Information Security
Oversight Office, National Archives and Records Administration, and the Co-Directors of
the Office of Information and Privacy, Department of Justice. A copy of this memo is
available at [http://www.fas.org/sgp/bush/wh031902.html].
52Ibid.

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CRS-14
There are several comparable, but still dissimilar definitions, of “sensitive, but
unclassified” in use at different agencies. The Department of State describes
“sensitive, but unclassified” information as:
...information which warrants a degree of protection and administrative control
that meets the criteria for exemption from public disclosure set forth under
Sections 552 and 552a of Title 5, United States Code: the Freedom of
Information Act and the Privacy Act.53
The Department of Energy’s use of “sensitive, but unclassified” is described as:
Information for which disclosure, misuse, alteration or destruction could
adversely affect national security or government interests. National security
interests are those unclassified matters that relate to the national defense or
foreign relations of the Federal Government. Governmental interests are those
related, but not limited to, the wide range of government or government-derived
economic, human, financial, industrial, agricultural, technological, and law
enforcement information, as well as the privacy or confidentiality of personal
information provided to the Federal Government by its citizens.54
The Department of Defense maintains several types of controlled, unclassified
information. The Department of State category of “sensitive, but unclassified” is a
document designation comparable to For Official Use Only.55 The criteria for
allowing access to For Official Use Only and “sensitive, but unclassified”
information are the same. The Department of Defense describes For Official Use
Only as:
... a designation that is applied to unclassified information that may be exempt
from mandatory release to the public under the Freedom of Information Act
(FOIA).56
The Department of Defense Draft Directive
The Department of Defense requires a developed and documented plan for the
protection of information important to prolonging the effectiveness and lifetime of
acquired weapons systems for each acquisition program. Under current policy, basic
and applied research funded by DOD is not required to have these information
protection plans. Coincident with the issuance of the Card memo, DOD presented
53Definition taken from the U.S. Department of State, Foreign Affairs Manual, located at 12
FAM 541, found online at [http://foia.state.gov/fam/fam.asp].
54Definition taken from Office of Security Affairs, Safeguards and Security Glossary of
Terms, U.S. Department of Energy, December 18, 1995, as cited in Commission on Science
and Security, Science and Security in the 21st Century: A Report to the Secretary of Energy
on the Department of Energy Laboratories, The Center for Strategic and International
Studies, April, 2002.
55As reported on the Defense Security Service website at
[http://www.dss.mil/search-dir/training/csg/security/S2unclas/Intro.htm].
56Department of Defense, “Information Security Program,” Department of Defense Directive
5200.1-R, January 1997.

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CRS-15
new draft regulations in March 2002 for protecting research and technology within
the DOD.57 The DOD draft regulation proposed to extend the requirement for
acquisition programs to basic and applied research, both intra- and extramural, and
would include prepublication review of all research results funded by DOD.
The academic community, as well as some personnel from the Department of
Defense, were highly critical of these draft regulations.58 One criticism forwarded
was that, since any research, even basic and applied fundamental research, performed
under Department of Defense auspices might be expected to have an impact on some
weapon system’s performance, all research results obtained would be categorized as
sensitive, unclassified information.59 As a result, all research funded by the
Department of Defense would require prepublication review. Another criticism was
that, if plans for prepublication review of research results were developed, they could
undercut established policy regarding fundamental research as developed in NSDD-
189. Some suggested that it would become possible to be held criminally liable for
publishing unclassified research results as a consequence of the proposed
regulation.60 In the wake of such criticisms, the draft proposal was removed.
Congressional Action
107th Congress. Following the publication of the poliovirus research results,
Rep. Dave Weldon introduced H. Res. 514 into the 107th Congress, which criticized
the publishing of research potentially compromising national security. This
resolution stated the concern of the House regarding the potential of the poliovirus
article to allow terrorists to create inexpensively human pathogens to release on the
people of the United States. It also called upon the publishers and editors of
scientific publications to establish ethical standards to ensure that published material
does not aid terrorists in the development of agents of bioterrorism. It instructed the
scientific community to develop ethical standards and exercise restraint in
disseminating information of potential terrorist use. Finally, it stated that the
executive branch should examine all policies, including national security directives,
relevant to the classification or publication of federally-funded research to ensure
that, although the free exchange of information is encouraged, information that could
be useful in the development of chemical, biological, or nuclear weapons is not made
accessible to terrorists or countries of proliferation concern. The resolution was
referred to the Committees on Energy and Commerce, Subcommittee on Health;
Science; and Armed Services, Subcommittee on Military Research and Development.
No further action occurred.
57U.S. Department of Defense, Mandatory Procedures for Research and Technology
Protection Within the DoD - Draft Regulations, March 2002, found online at
[http://www.fas.org/sgp/news/2002/04/dod5200_39r_dr.html].
58Ron Southwick, “Pentagon Backs Away From Strict Controls on Basic Research,” The
Chronicle of Higher Education, May 31, 2002, p. 21.
59Don J. DeYoung, White Paper on “Proposed Security Controls On Defense Research,”
April 2, 2002, found online at [http://www.fas.org/sgp/othergov/deyoung.html].
60Ron Southwick, “Pentagon Considers Tighter Control of Academic Research,” The
Chronicle of Higher Education, May 3, 2002, p. 24.

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CRS-16
The House of Representatives’ Committee on Science held a hearing on October
10, 2002, titled “Conducting Research During the War on Terrorism: Balancing
Openness and Security.” The Director of the Office of Science and Technology
Policy (OSTP), the president of the American Society for Microbiology, and
representatives of academic institutions provided testimony, some of which related
to methods to control dissemination of sensitive scientific results.
Dr. John Marburger, Director, OSTP, affirmed that the Office of Management
and Budget was asked by the Office of Homeland Security to revisit the manner in
which sensitive homeland security information is handled among different Federal
agencies.61 Dr. Marburger stated that the White House was revisiting treatment of
sensitive homeland security information primarily for application to critical
infrastructure and law enforcement information, rather than scientific results. Dr.
Marburger said:
I’m aware that there is an impression that the administration is considering a
policy of pre-publication review of sensitive federally-funded research. This is
incorrect–this is not the thrust of the considerations, and it’s important to note
that this process is in the formative stage.62
Dr. Ronald Atlas, President of the American Society for Microbiology, stated
that much scientific knowledge has dual application. The same information which
might prove valuable for new drug therapies or vaccines could also be used
maliciously to increase the danger of a pathogen. Dr. Atlas voiced his support for a
self-imposed code of conduct and oversight.63 Dr. Atlas said:
If policy measures to prevent terrorists from acquiring pathogens, equipment, and
technical information are not crafted with great care, they may have a
significantly adverse effect upon critically important research activities.64
University of California at Santa Cruz Chancellor M.R.C. Greenwood and
Massachusetts Institute of Technology Professor Sheila Widnall agreed that research
results should be unrestricted. Dr. Greenwood stated her opinion that the onus for
blocking publication should be on the government through a process that is clearly
defined, free of arbitrary edicts, and understood by the research community.65 Dr.
Widnall asserted that the right approach to security is to identify precisely the specific
61Written testimony from Dr. John Marburger, Director, Office of Science and Technology
Policy, before the House of Representatives Committee on Science, October 10, 2002.
62Oral testimony from Dr. John Marburger, Director, Office of Science and Technology
Policy, before the House of Representatives Committee on Science, October 10, 2002.
63“Too Much Bioterrorism Research Censorship More Dangerous Than Not Enough, ASM’s
Atlas Testifies,” Washington Fax, October 11, 2002.
64Written testimony from Dr. Ronald M. Atlas, President, American Society for
Microbiology, before the House of Representatives Committee on Science, October 10,
2002.
65Written testimony from Dr. M.R.C. Greenwood, Chancellor, University of California at
Santa Cruz, before the House of Representatives Committee on Science, October 10, 2002.

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CRS-17
areas that require classification and to maintain clear and distinct boundaries between
classified and unclassified areas.66
108th Congress. At the end of the 107th Congress, the Homeland Security Act
(P.L. 107-296) was passed. This act created the Department of Homeland Security,
within which many research and development functions relating to homeland security
were aggregated under a Directorate of Science and Technology.
The chemical, biological, and nuclear programs currently in National Nuclear
Security Administration; the biological and computing programs currently in the
Office of Science; and a radiation measurement laboratory currently in the Office of
Environmental Management were transferred from the Department of Energy. These
programs are scheduled to be transferred on March 1, 2003.
The Plum Island Animal Disease Center, which conducts research on animal
disease agents, will be transferred from the Department of Agriculture.67 This
program is scheduled to be transferred on June 1, 2003.
Also created in the Homeland Security Act were several new programs. The
National Bio-Weapons Defense Analysis Center was created and placed within the
Department of Homeland Security. This program is to be located within the
Department of Homeland Security on March 1, 2003. The Homeland Security
Advanced Research Projects Agency was created to administer the funds to award
grants, cooperative agreements and contracts for research and development. Both the
Homeland Security Advanced Research Projects Agency and the Acceleration Fund
for Research and Development of Homeland Security Technologies, which it will
manage, are to be established on January 24, 2003.
How information is handled by the Department of Homeland Security is further
described in the Homeland Security Act. While to the greatest extent practicable, the
results of research funded by the Department of Homeland Security are to be
unclassified,68 the President is also instructed to:
prescribe and implement procedures under which relevant Federal agencies ...
identify and safeguard homeland security information that is sensitive but
unclassified. ... The President shall ensure that such procedures apply to all
agencies of the Federal Government.69
66Written testimony from Dr. Sheila Widnall, Professor, Massachusetts Institute of
Technology, before the House of Representatives Committee on Science, October 10, 2002.
67For more information regarding issues surrounding the transfer of this facility, see CRS
Report RL31466 Homeland Security Department: U.S. Department of Agriculture Issues
by Jean M. Rawson.
68P.L. 107-296, Section 306.
69P.L. 107-296, Section 892(a).

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CRS-18
Since extramural scientific research funded by the Department of Homeland Security
might be reasonably expected to also have security ramifications, a policy relating to
publication of such sensitive but unclassified information will likely be needed.
Response of Professional Societies
Scientists are divided about how to balance scientific openness and national
security concerns. The synthesis of poliovirus from its chemical components was
published in Science. Following criticism regarding this publication,70 the editor of
Science, Dr. Donald Kennedy, asserted that the view of informed scientists was that
there were no security concerns worth serious consideration regarding the publication
of the poliovirus synthesis paper.71 The American Association for the Advancement
of Science, the professional organization which publishes Science, has developed a
formal policy, to be implemented in 2003, on how to deal with potentially dangerous
reports.72
The American Society for Microbiology, the professional organization which
publishes the Journal of Virology in which the mousepox article was printed, has
received requests by authors to be allowed to omit certain information from their
submissions.73 By omitting such information, the experiments described in the article
would be much more difficult to reproduce, perhaps impossibly so. The American
Society for Microbiology has adopted the position that all information necessary to
reproduce an experiment must be included in any submission for publication. Its
president, Dr. Ronald Atlas, testified:
Omission of materials and methods from scientific literature would compromise
the scientific process and could lead to abuses as well as the perpetuation of
errors. Independent reproducibility is the heart of the scientific process. Even
within the context of heightened scrutiny, research articles must be published
intact. If scientists cannot assess and replicate the work of their colleagues, the
very foundation of science is eroded.74
Recognizing as valid the concern that scientific information in journals might
be inappropriately used, the American Society for Microbiology has developed and
established new policy guidelines for reviewers and editors of their journals. These
new guidelines establish a procedure for special review of submissions concerning
select agents and for those submissions which reviewers feel may possess the
70Steven Block, “A Not-So-Cheap Stunt,” Science, Vol. 297, August 2, 2002, p. 769.
71Donald Kennedy, Response to “A Not-So-Cheap Stunt,” Science, Vol. 297, August 2,
2002, p. 769.
72The new policy for potentially dangerous reports is described in Information for
Contributors, Science, January 3, 2003.
73Andrew Moesel, “Scientists Call For Withholding Sensitive Data,” University Wire,
August 12, 2002.
74Written testimony from Dr Ronald M. Atlas, President, American Society for
Microbiology, before the House of Representatives Committee on Science, October 10,
2002.

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CRS-19
potential for inappropriate use.75 In July 2002, Dr. Atlas requested that the National
Academy of Sciences convene a meeting of journal editors to address the developing
situation.76
The National Academy of Sciences has an ad hoc committee formed to review
the current mechanisms for oversight of research on pathogens and potentially
dangerous biotechnology, how choices are made about which research is and is not
appropriate, and how information about relevant ongoing research is collected and
shared.77 The committee will provide recommendations to prevent the destructive
application of biotechnology research while still enabling legitimate research. A
report is expected to be released in 2003.
The Presidents of the National Academies recently released a joint statement
and background paper which avers that the federal government should continue its
current practice of classification and not further develop a less well-defined category
to encompass sensitive research results.78 They assert that scientific creativity and
national security would both be lessened if clear distinctions are not drawn between
areas where open publication is acceptable or not. They also emphasize that wide
dissemination of research results and peer review are important aspects of research
science.79
A meeting entitled “Scientific Openness and National Security” was held at the
National Academy of Sciences on January 9, 2003.80 It addressed some aspects of
the debate regarding scientific publication and national security. Members of the
academic scientific community, the non-profit community, and the federal
government met for a day-long symposium identifying the significant contentious
issues.
At this meeting, Dr. Marburger reiterated that NSDD-189 continues to define
policy for publication of federally funded research results. He suggested that
research should be designated as classified prior to awarding a federal grant or
75The guidelines developed by the American Society for Microbiology for authors, editors,
publishers, and reviewers are found online at
[http://www.journals.asm.org/misc/Pathogens_and_Toxins.shtml].
76Lila Guterman, “Academy Plans Debate on Publication of Papers That Withhold Data to
Avoid Helping Terrorists,” The Chronicle of Higher Education, July 29, 2002.
77More information about the Research Standards and Practices to Prevent Destructive
Application of Advanced Biotechnology project can be found online at
[http://www4.nas.edu/webcr.nsf/ProjectScopeDisplay/DSCX-N-01-12-A].
78Statement on Science and Security in an Age of Terrorism from Bruce Alberts, Wm. A.
Wulf, and Harvey Fineberg, Presidents of the National Academies, October 18, 2002.
79Background Paper on Science and Security in an Age of Terrorism, National Academies,
found online at
[http://www4.nationalacademies.org/news.nsf/(ByDocID)/0A1A170CAA649C2A85256
C56005F0E3E?OpenDocument].
80This meeting was co-hosted by the National Academy of Sciences and the Center for
Strategic and International Studies.

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CRS-20
contract, and that the need for deviation from this policy should be uncommon. He
also stated that previous precedents of control in the physical sciences may not
provide adequate guidance for bioterrorism.81 OSTP’s Dr. Penrose Albright also
stated that an articulated and defensible criteria for inappropriate research and to
distinguish dangerous and benign research results combined with a mechanism for
identifying articles containing valuable, dangerous information would be well
received by the Executive Branch.82
While no consensus was achieved among the attendees with respect to potential
solutions, there was general agreement that a growing dialogue between the scientific
and security communities would aid in satisfying concerns community members
possess. Towards achieving this goal, the National Academy of Sciences and the
Center for Strategic and International Studies are convening a joint Roundtable on
Scientific Communication and National Security. Both the scientific and security
community will be invited to informally meet to discuss, and potentially develop,
solutions to the tension over publication.
Journal editors described the new procedures put in place for Science and
American Society for Microbiology journals and cited the relatively small percentage
of articles that were considered potentially dangerous. Dr. Donald Kennedy, editor
of Science, suggested the identification of an informal group of qualified security
representatives that would advise journal editors upon their request.83 Dr. Nick
Cozzarelli, editor for Proceedings of the National Academy of Sciences, described
the difficulties in identifying published research results for which security concerns
would override their scientific value.
Policy Options
The balance between publication of federally-funded research results and
protecting national security raises numerous questions, such as: Should there be
regulation of the publishing of federally-funded research results? Is the potential
impact on scientific quality, productivity, and advancement resulting from
publication controls worth the added potential security gained through such controls?
How might relevant policy be uniformly employed by all agencies of the federal
government? Should such policy vary by scientific and technical disciplines? At
what stage, if any, of the civilian research process might regulation or restriction
occur? How much authority, if any, does the federal government have over the
publishing of research results developed through private funding? How might
development or implementation of such authority introduce first amendment
conflicts? Since science is an increasingly international discipline, how would
81“NAS Forum on Scientific Openness Considers National Security Concerns,” Washington
Fax, January 10, 2003.
82Public comments, Dr. Penrose Albright at “Scientific Openness and National Security,”
National Academy of Sciences, January 9, 2003.
83Public comments, Dr. Donald Kennedy at “Scientific Openness and National Security,”
National Academy of Sciences, January 9, 2003.

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CRS-21
national security concerns regarding federally funded research results be
implemented in a global context? How might the federal government encourage
scientists to develop guidelines for self-regulation? Given the international nature
of scientific publication, might self-regulation by domestic publishers cause sensitive
research results to be published in international journals rather than domestic
journals? How might Congress provide oversight of this issue with respect to
extramural research and development funded by the Department of Homeland
Security?
Maintaining the Status Quo
Some in the scientific community advocate that the status quo, where the
mechanism for blocking publication of federally-funded research results is
classification, should remain the federal government’s policy on controlling research.
They assert that this mechanism has been sufficient in the past, and that the vigor of
scientific research could be unduly, and perhaps seriously, impeded if new controls
were developed and added. Advocates of classification assert that, with the addition
of the Secretary of Health and Human Services,84 the Secretary of Agriculture,85 and
the Administrator of the Environmental Protection Agency86 to the list of those
persons authorized to classify information, the federal government has greater
capacity to identify information for classification. They assert that, in line with
NSDD-189, information which is not classified should be freely publishable and
distributable. Advocates of this position claim that areas of proscribed research
should be well defined and protected by strong barriers, such as those provided under
classification.
Advocates of retaining the status quo also cite substantial concern about the
impact of publication controls on science, especially in biological sciences.87 Some
have claimed that there would be a flow of scientists out of contentious research
areas into areas where there is less concern about the legal ramifications of their
work.88 Others have spoken of a general slowdown of scientific endeavor as the
collaborative aspect of research becomes impeded.
Additionally, some scientists believe that an unimpeded flow of scientific
information is important to maintaining national security. They assert that national
security will be increased if many researchers have access to information that may
lead to new vaccines, detectors, and treatments. Dr. Paul Keim, a scientist at
Northern Arizona University, stated:
8466 Fed. Reg. 64345 (December 12, 2001).
8567 Fed. Reg. 61,463 (September 30, 2002).
8667 Fed. Reg. 31,109 (May 9, 2002).
87Charles Vest, “Response and Responsibility. Balancing Security and Openness in
Research and Education,” Report of the President for the Academic Year 2001-2002,
Massachusetts Institute of Technology, September 2002.
88For example, see Mark Clayton, “Academia Becomes Target for New Security Laws,” The
Christian Science Monitor, September 24, 2002, p. 11.

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CRS-22
If the Bacillus anthracis genome had not been released, we would not have been
able to develop the high-resolution system that is currently so important [to the
investigation of last year’s anthrax attacks].89
On the other hand, advocates calling for changing the current system contend
that scientists are currently making available to terrorist groups, information which
can be used to harm the populace. Since classification is not applied to information
after it has already been published in the open literature and research results which
threaten national security may arise from normally unclassified fields, advocates of
changing the current system assert that classification is insufficient to stop
dissemination of this information. These proponents claim that the continued
publication of such information will harm national security, and that changes should
be made in the way that such information is distributed so that classification of such
federally funded research results can occur.
Advocates for adjusting the current system also assert that information
published in scientific journals may undermine biodefense efforts. For example,
publishing which portion of a pathogen’s genome is used in a new biodetection
device could inform terrorists how to create a pathogen which would avoid detection
by that method.90, 91
The development of export control regulation may be indicative of ways that
science and security measures can be developed in a mutually acceptable approach.
In these areas, the concerns of national security are met while simultaneously
allowing research to continue.
Self-regulation by Scientists
While many individual scientists agree that there are reasonable and valid
concerns regarding the potential that information in scientific journals may be put to
inappropriate use, there is a wide variance of opinion as to how to address this
concern. Some have advocated a self-policing framework where scientists regulate
themselves through a combination of ethical agreements and publishing oversight.92
They claim that scientists are in the best position to determine the threshold for
responsible science. As was shown through the experience of the National Institutes
of Health Recombinant DNA Advisory Committee, there is often need for
amendment or adjustment of regulation and rules related to science, as the subject
matter continues to evolve and progress.
89Debora MacKenzie and Sylvia Pagan Westphal, “Should the Genetic Sequences of Deadly
Diseases Be Kept Secret?” New Scientist, July 20, 2002, p7.
90Nicholas Wade, “Traces of Terror: Bioterrorism; Scientists Worry Journals May Aid
Terrorists,” The New York Times, July 26, 2002, p. A19.
91Richard Monastersky, “Publish and Perish? As the Nation Fights Terrorists, Scientists
Weigh the Risks of Releasing Sensitive Information,” The Chronicle of Higher Education,
October 11, 2002, p. A16 - A19.
92See for example Joseph G. Perpich, “The Recombinant–DNA Debate and Bioterrorism,”
The Chronicle of Higher Education, March 15, 2002, p. 20.

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Several mechanisms are possible within a self-regulating framework. One
would involve review boards within institutions to assess research results. Much
research involving human subjects, for example, is governed by local institutional
review boards. A board’s purview generally extends to all human research at the
institution, irrespective of funding source. Although required for certain human
experimentation by the Public Health Service Act and the Federal Food, Drug and
Cosmetic Act, the boards at extramural research institutions are not federal entities.93
These institutional review boards have the ability and authority to approve, require
modifications within, or disapprove research projects. Similar review boards
established within research facilities could be given the role of screening manuscripts
in a formal or informal manner prior to their publication.
Another possibility would be to convene a new “Asilomar-like” conference,
where members of the scientific and national intelligence communities, along with
public input, come together and craft codes of conduct which will satisfy the varying
needs of these disparate groups. By doing so, a framework could be developed to
identify sensitive research results and provide alternate dissemination routes.
NIH National Institute of Allergy and Infectious Diseases Director Anthony
Fauci has voiced support for the above proposals. During an address at the World
Medical Association meeting in October 2002, he suggested the formation of a panel
to determine the appropriateness of certain types of biomedical research and stated:
There should be a committee – a combination of academics and societies and
perhaps journal editors – to discuss [publication], so if there is a question in the
mind of someone, you can bring it to a body who can, in an unbiased way, give
you an idea about whether or not you should [publish].94
Whether scientific researchers would be able to properly weigh the security
concerns of research results is uncertain as well. For example, Dr. Stephen Morse,
in endorsing the idea of an Asilomar-like conference, pointed out:
Scientists are not in the age of innocence anymore. And they should be aware
of the moral implications of what they’re doing.95
Some have maintained that the natural inclination of scientists is to err on the side of
openness and publication.96 Other complications to self-regulation exist as well. As
scientific research has become more international in scope, it would be necessary for
such a self-regulatory framework to be adhered to on an international basis. Without
the agreement of international scientists to maintain similar codes of conduct,
93More information about institutional review boards can be found online at
[http://www.fda.gov/oc/ohrt/irbs/faqs.html].
94Anthony Fauci, quoted in “Security Exceptions to Transparency in Publishing NIH-funded
Research Will Be Rare, Fauci Says,” Washington Fax, October 11, 2002.
95Laurie Garrett, “Scientists Advocate Greater Security,” Newsday, October 14, 2001, p. A5.
96For example, see M. Mechanic, “Publish and Perish?” East Bay Express, September 11,
2002.

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contentious research results generated by international scientists would continue to
enter the open literature.
The NIH guidelines developed out of the Asilomar conference are generally
followed on an international level, but the scientific community is much larger now
than in the 1970s, and developing agreement among such a community may be more
difficult to achieve.97 Genetically modified foods and stem cell research are
examples of biological research areas around which a community-wide international
consensus has not evolved.
Regulation by Publishers
Either of the newly implemented guidelines developed by the American Society
for Microbiology or the American Association for the Advancement of Science for
handling the results of potentially sensitive research may be models for other
publishing houses to adhere to in the face of potential legislation or federal
regulation. By empowering journal editors to screen, review, and reject research
papers on the basis of their weapons potential, advocates hope to avoid new laws or
regulations that might constrain the research process and scientific productivity.
Still, some cite the opinions of the editor of Science and chief executive of the
American Association for the Advancement of Science initially expressed regarding
the need for open publication98 as indicative that the publishing community is not
unified in perspective, and that such an effort might yield unsatisfactory results.
Even if domestic publishers develop a consensus protocol for handling research
results which might threaten national security, it is unclear if this would stop such
information from entering the open literature. The competitive, international nature
of scientific publishing may lead foreign journals that lack such a protocol to acquire
and publish material that is prohibited from publication in domestic journals.
Federal Regulation
Prepublication Review of Sensitive, But Unclassified Results. An
option viewed as potentially imminent by some in the scientific community is the
imposition by the federal government of sensitive, but unclassified status, such as
that being weighed by OMB or discussed in the Card memo, and subsequent
prepublication review of scientific research resulting from federal government
sponsorship or funding. Application of this standard would likely allow scientists
with appropriate credentials or need-to-know access to such scientific literature, but
would bar others’ access. Advocates of such a standard point out that such
information could be transferred among scientists with fewer controls than classified
information. It has been suggested that access to sensitive, but unclassified research
results could be controlled by the publisher through secure, password-controlled
97See Gerald L. Epstein, “Controlling Biological Warfare Threats: Resolving Potential
Tensions among the Research Community, Industry, and the National Security Community,”
Critical Reviews in Microbiology, Vol. 27, No. 4, (2001) pp. 321-354.
98Jennifer Couzin, “A Call for Restraint on Biological Data,” Science, Vol. 297, (August 2,
2002) pp. 749-751.

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websites.99 Other options might include dissemination of such material via
professional societies or directly from the federal government.
Opponents of such an approach cite the logistical difficulties in determining
those scientists with a bona fide reason for access to this information, how and in
what manner would application of such a label be implemented, and determining
how such sensitive, but unclassified material would be disseminated to those
scientists eligible to receive it. A further complication is that the categorization of
what information might be sensitive, but unclassified is still not clear or uniformly
codified across all federal scientific funding agencies.100 Additionally, some
scientists or universities might choose not to participate in a process which would
determine access eligibility. A recent Massachusetts Institute of Technology report
rejects such security reviews as potentially becoming arbitrary.101
Another concern is the effectiveness of such a federally based review. The
federal government funds about 26% of the total research and development efforts
in the United States. In terms of basic and applied research, the federal government
funds 49% and 26% respectively.102 If prepublication review resides within the
federal government, in contrast to a voluntary submission to professional societies
or an ethical or moral statement developed and overseen by journal publishers, then
less than half of all basic and applied research would be so reviewed.
Last, universities fear that federal prepublication review to determine the
sensitive, but unclassified status of material in a publication might invalidate the
fundamental research exemption that such research results normally enjoy. As a
consequence, university research done in an export-controlled area would no longer
be excluded from export control regulations.103
Security Review at the Funding Stage. Another suggestion to addressing
research with security implications is to categorize such research at the funding stage,
99R.A. Zilinskas and J.B. Tucker, “Limiting the Contribution of the Open Scientific
Literature to the Biological Weapons Threat,” Journal of Homeland Security, (December
2002).
100Potential new regulations regarding the definition of sensitive, but unclassified
information being studied by the Office of Management and Budget may address these
issues.
101Massachusetts Institute of Technology, In The Public Interest. Report of the Ad Hoc
Faculty Committee on Access to and Disclosure of Scientific Information, June 2002.
102Percentages calculated in constant 1996 dollars. Total research and development funding
information taken from National Science Foundation, National Patterns of R&D Resources:
2000 Data Update, Table 1B. Basic research funding information taken from National
Science Foundation, National Patterns of R&D Resources: 2000 Data Update, Table 2B.
Basic research funding information taken from National Science Foundation, National
Patterns of R&D Resources: 2000 Data Update, Table 3B.
103Eugene B. Skolnikoff, “Protecting University Research Amid National-Security Fears,”
The Chronicle of Higher Education, May 10, 2002, pp. B10-B12.

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rather than at the publication stage.104 Including voluntary or mandatory
prepublication review for federally-funded research or the development of new
funding opportunities containing prepublication review as a condition of acceptance
are potential remedies. Individual funding vehicles have been offered to universities
which would provide the funding agency with access to research results prior to
publication.105
Opponents of this approach cite the general unwillingness that universities have
towards restricted research funding. Some universities have a policy barring
acceptance of federal funding requiring prepublication review. As a consequence,
the pool of eligible scientists competing for federal funding would likely decrease,
potentially lowering the quality of research and development performed in these
areas. Additionally, it is considered difficult to determine at the funding stage
whether research will lead to sensitive results. For example, the often cited
mousepox experiments were part of a fertility research program aimed at techniques
for pest control, and the results of the experiment were unexpected.
Oversight of the Department of Homeland Security
Congress may wish, during the formation of the Department of Homeland
Security, to provide oversight for policies relating to publication of extramural
research results. Whether the Department of Homeland Security should adopt a
currently existing policy on extramural research, for example that of the Department
of Defense or Energy, or create a new policy; how this policy should be
implemented; and the degree to which extramural research funded by the Department
of Homeland Security might present security concerns may be areas where
congressional oversight is needed.
Concluding Observations
Developing policy in this area balances many concerns, some of which may be
more difficult to address than others. How would a federal policy that encouraged
self-regulation of manuscript submissions, either by journal publishers or scientists,
be enforced? How would the concerns of security officials regarding national
security be met if scientists are relied upon to review articles? Conversely, how
would the concerns of scientists regarding scientific openness and academic freedom
be met if security officials review articles? A policy involving review of research
may require the cooperation of members of both the scientific and security
community, two communities that generally have limited interaction. Finally, how
would the success of a program controlling scientific research results be measured?
104For example, see Joan Lowy, “Debate Flares on Bioterror Research,” Scripps Howard
News Service, October 2, 2002.
105Examples of contracts containing prepublication review being offered by federal funding
agencies is found in David Malakoff, “Universities Review Policies for Onsite Classified
Research,” Science, Vol 295 (February 22, 2002) pp. 1438-1439, and Andy Fell, “Homeland
Security Goals Create Impact: Campus Responds To Satisfy Range of New Terrorism
Laws,” Dateline UCDavis, November 22, 2002.

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Some aspects of such a program, like the economic costs involved in processing the
articles, might be directly measurable, while others, such as the success in blocking
terrorist group access to this information, might not be so easily measured.

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