COMPUTING RESEARCH POLICY BLOG

The Bureau of Industry and Security at the US Department of Commerce has promulgated an advance notice of proposed rulemaking that seeks to change American policy regarding deemed exports. A deemed export occurs when a foreign national “uses” technology subject to export restrictions while in the United States. The proposed rule would make a number of significant changes:

• Deemed export applications would be evaluated not just on country of citizenship and permanent residence, but on country of birth as well;
• Expand the definition of “use” of controlled technologies to any form of instruction on their operation, including access to manuals and, by a conservative reading, visual access to a machine or source code; and
• Exclude from the fundamental research exemption all research conducted under government sponsorship that is subject, either by regulation or prudential practice, to prepublication review.

Clearly, these changes would have a significant impact on the way that fundamental research is conducted in the United States. On Sunday, CRA submitted these comments to inform rulemakers about our objections to these proposals.
There are a number of problems with these proposals. First, it is unjust and anti-democratic to judge people based on their country of birth. The country of birth rule would create the perception that America is hostile towards foreign scientist and students at a time when their presence here is vital to our economy and national security. Worse, it would create castes of citizens so that, for instance, some British citizens would be more equal than others.
Second, the rule changes are confusing, especially as they relate to the word “use.” The report from Commerce’s Inspector General that gave rise to these proposed rule changes dilutes the definition of “use” to the point that it lacks meaning. Even seeing a machine could count as “use” under the report’s rules — but the burden of determining when “use” occurs would fall on researchers and their institutions.
Third, there would be tremendous costs to researchers, their institutions, and the Department of Commerce if these rules pass. The number of deemed export applications would skyrocket and institutions — still trying to understand SEVIS compliance rules — would have another bureaucratic hurdle to jump, which is especially detrimental as Congress continues to cut research funding.
Fourth, the proposal shows a misunderstanding of editorial review and how scientific research works. The proposal would remove the fundamental research exemption from any research that is internally vetted prior to publications. It is not hard to see that this turns editorial review on its head: the reason review takes place is to double-check that nothing sensitive is published, not because researchers expect to release sensitive information.
Fifth and finally, we have not seen any credible evidence that a problem exists. Much of the information protected by export rules is freely available on the internet, and some technologies — such as computers that exceed 190,000 MTOPS — are hardly cutting edge. We are unaware of any evidence that the current regulations create any serious threats to America’s ability to control the flow of sensitive information that would be remedied by the new provisions.
The American economy and our national security depend on the work done here by foreign scientists, engineers, and graduate students. As then-National Security Advisor Condoleezza Rice wrote in November 2001:

The key to maintaining US technological preeminence is to encourage open and collaborative basic research. The linkage between the free exchange of ideas and scientific innovation, prosperity, and national security is undeniable.

We couldn’t agree more.
Keep your eyes on this blog for news as it breaks. We don’t know when these rules will be accepted or rejected — it could be weeks or it could be months — but we will blog about it when a decision comes down.

The Grokster decision is out. USACM has been following the case (and joined an amicus brief (pdf) on the case themselves) and is one of a whole bunch of sites with info on the impact of today’s ruling against Grokster (and StreamCast) on technology and innovation.
My non-lawyerly, first reading of the ruling (pdf) is that the “loss” for Grokster in the case may not be the blow to innovation technologists were concerned it could have been. The court seems to have ruled against the software companies not because they thought the safe harbor established in the Betamax case was too broad (Betamax established the concept of relief from secondary liability for companies that produce products that could be used to infringe copyright if there are “substantial non-infringing uses” of the technology); rather, the court felt that these two defendants had actively induced the infringement and profited from it. Here’s what the ruling says:

We adopt [the inducement rule] here, holding that one who distributes a device with the object of promoting is use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony [the Betamax case] did not find intentional inducement despite the knowledge of the VCR manufacturer that it’s device could be used to infringe…mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

There’s much more informed discussion of the ruling over at the SCOTUSblog, including the participation of computer scientist Ed Felten (who normally lives at Freedom-to-Tinker).
Update: Felten has some deeper analysis than mine with reasons to be concerned.
Update: Cameron Wilson has more deep thoughts (and USACM’s press release on the decision) at the USACM Tech Blog.