The document, authored by Robert Hardy and presented at a 2004 conference on higher education research and compliance, thoroughly examines the implications of federal export control regulations—specifically those governing deemed exports—for U.S. universities. Export controls, intended to safeguard national security by restricting the dissemination of sensitive technologies and information, are primarily implemented through the Department of Commerce’s Export Administration Regulations (EAR), the Department of State’s International Traffic in Arms Regulations (ITAR), and the Department of Treasury’s Office of Foreign Assets Control (OFAC). These regimes regulate not only the physical export of goods but also the transmission of technical information to foreign nationals, even within the United States—a concept referred to as “deemed exports.” Universities, as open research environments, face substantial challenges in balancing compliance with these controls against the foundational principles of academic freedom and unrestricted dissemination of research.
The document details the legal structure, scope, and exemptions of existing export controls, emphasizing the fundamental research exclusion (FRE), which generally allows information generated by basic and applied research at accredited U.S. institutions to be shared broadly without license, provided it is not subject to publication or access restrictions. It also addresses specific educational and employment-related exemptions, and exceptions for publicly available information. However, recent recommendations from multiple federal Inspector General (IG) reports suggest narrowing or reinterpreting these exemptions, notably questioning whether foreign nationals may access controlled technologies in the course of fundamental research. Should these recommendations result in regulatory change, universities could be compelled to implement burdensome compliance systems, restrict foreign nationals’ participation in research, and reconsider collaborative and open research practices. The document concludes by underscoring concerns that such measures could undermine U.S. research innovation and competitiveness, urging sustained dialogue between academic and governmental stakeholders to preserve the openness and vitality of the U.S. research enterprise while addressing legitimate security concerns.
