Will we be more secure -- or just less competitive -- if the government forces hundreds of thousands of international science students to get export licenses simply to look through a microscope?
By CRISTI HEGRANES
UC Berkeley freshman Arjun Gupta could have to apply for hundreds of export licenses.
Ravi Kolluri, a Ph.D. candidate at UC Berkeley, says he would have gone to school in another country rather than go through the license application process.
Kolluri works with other computer science students in Soda Hall.
Some foreign students may need licenses to use routine lab equipment.
At a tiny round table in the shade at Caffe Strada in Berkeley, Arjun Gupta, 19, sat diligently working on problems for an upcoming freshman chemical engineering seminar. Struggling to keep his long, black, curly hair out of his face, Gupta, an Indian citizen who has been in the United States for less than a year, made it clear that he was adjusting well to life in America. He loves chemistry, living in the dorms, and his new American friends.
"I don't have even a single friend from India here," he said with a laugh. "I've been really lucky to make friends from all over the world." Gupta and his friends "never really go out," just stick around the dorms. He said he spends much of his time studying.
Gupta is the youngest of three brothers; the elder two both studied at the University of Southern California and returned to India after earning MBAs. Gupta wants to go back to India, too, but not until he finishes a Ph.D. in chemical engineering. He said he misses India, especially driving the chaotic streets of Delhi, his hometown. But he believes in the American dream.
"I love it here," he said, his dark brown eyes slightly hidden by his unruly hair. He said he loves everything about America, but he has two favorite features. "The education is the best in the world. And everything works efficiently, on time," he said happily.
Unfortunately for Gupta, his two favorite things about America may soon change. New federal rules proposed by the Department of Commerce in March could impede Gupta's access to educational equipment and force him to apply for government licenses to use specific technology in the classroom, each of which could take months to acquire. In fact, hundreds of thousands of international students and scientists working and studying in the U.S. could lose access to equipment and technology that they have had routine use of until now.
Because Gupta is studying chemical engineering, he will eventually encounter what the government calls "dual-use technology" -- technology that has both civilian and military applications. Under the new Commerce Department proposal, the use of everything from basic computer systems, semiconductors, and training manuals to microscopes and telescopes will require some international students to apply for government licenses before they can legally have access to or study the technology.
Just as guns and corn require export licenses when shipped abroad, the transfer of knowledge to foreign students in U.S. universities has long been classified a "deemed export" under U.S. Export Administration regulations and can also require a license. But it is only students such as Gupta, who are from what the government calls "countries of concern," who will be hit by the new rules, which target students based solely on nationality.
According to changes recommended by the Department of Commerce, universities could soon be forced to apply for individual licenses from the federal government before they can "export" knowledge to specific students about the operation, installation, maintenance, or repair of certain equipment. But thousands of academic subjects fit into the dual-use category, including computer science; mathematics; civil, mechanical, and nuclear engineering; and biological and chemical studies.
"If I had to apply with the government every time I needed access to a cluster [a large set of computers used to run complex programs], it would be very painful," says Ravi Kolluri, a 27-year-old Ph.D. candidate at UC Berkeley. He works with three-dimensional computer imaging, which has both military and civilian applications. He will likely have his doctorate before the new regulations take effect, but if such regulations had been in place when he applied to school in the U.S., he says, he "would have gone to school somewhere else." Kolluri plans to work in the United States after completing his degree. Once in the workforce, he may have to apply to use equipment that he's had open access to for the last seven years as a student.
Gupta's reaction to the proposed rules was one of confusion and denial. Upon hearing of the export rules and their potential to obstruct his future as an engineer, he hesitantly shook his head. "I'm surprised India is on that list. I thought America was very fond of India," he said. When asked if he too would go somewhere else if these rules took effect, he smiled, almost shyly, and said, "Something like that couldn't happen here."
But the rules are quite real, and their implementation threatens more than just Gupta's plans.
The proposed regulations would make universities apply to the Bureau of Industry and Security, an arm of the Commerce Department, for deemed export licenses for students who hail from 12 so-called countries of concern and who intend to do research in dual-use areas. The new regulations seem likely to create huge bureaucratic obstacles to foreign students' attendance at U.S. universities. In 2003, the Commerce Department reviewed fewer than 1,000 deemed export license applications for foreign nationals. If the new regulations are adopted as proposed, that number could shoot as high as 350,000.
Beyond the bureaucratic problems, the regulations have enormous economic implications, pose questions about discrimination, and create international-relations paradoxes. Students from China, Cuba, India, Iran, Iraq, Israel, Libya, North Korea, Pakistan, Russia, Sudan, and Syria will have to obtain deemed export licenses before engaging in some types of classroom research.
University administrators with knowledge of the proposed regulations say the rules are so burdensome that they will turn large numbers of science students from certain countries away from American research institutions. These students -- and the discoveries and inventions they help make -- will go to universities in other countries, over time depriving the U.S. of one of its main economic advantages in science and technology.
Meanwhile, foreign students whose home countries are not considered to be "of concern" can study dual-use technology without the bureaucracy and uncertainty surrounding the export licensing process.
Inherent in the new rules is a discriminatory contradiction: Students from India, which has cordial relations with the U.S., will need licenses to study, but students from Saudi Arabia -- home country for most of the participants in the 9/11 attacks on New York and Washington, and much of the financing and ideology behind Islamist terrorism -- will not.
The issue of passing sensitive technology to foreign students arose in a public way in the 1950s when Qian Xuesen, a Chinese student who excelled at both the Massachusetts Institute of Technology and the California Institute of Technology, went on to become the father of China's nuclear weapons program.
Since then, a variety of regulations and agencies have been created to monitor and control so-called deemed exports. Heavy fines and criminal penalties now exist -- up to $1 million and 10 years in prison -- to ensure that companies and universities follow government guidelines when it comes to foreigners and technology.
Decades after Xuesen graduated from U.S. universities with honors, the academic community and the federal government had their first serious discussion about research, technology, and international students. The result of that 1985 meeting was National Security Decision Directive No. 889, a presidential finding in which the definition of "fundamental research" was born. According to that directive, university research is exempted from federal regulation if it "will result in publication and is generally shared openly within the scientific community." By that definition, most university research, because it does not deal with classified information and is taught in open classrooms with published textbooks, is by its nature fundamental research.
While the Commerce Department contends that it is not redefining fundamental research, it is reinterpreting what fundamental research means in a post-9/11 world. "We don't have an intention of changing the definition, but we are focusing on clarifying what fundamental research is," Todd Willis, senior export control policy advisor for the Department of Commerce, said in a recent audio conference on the subject.
"A lot of study went into Directive 889," says Rachel Claus, an attorney in the office of the general counsel at Stanford University. "After a thorough cost-benefit analysis, they decided that it was much better to have that international participation."
Since Sept. 11, 2001, the government has wondered whether the benefits of unfettered research by foreign students actually do outweigh the security risks and costs such openness could entail. The Department of Commerce has been sharply criticized on more than one occasion for its handling of deemed exports.
In September 2002, the U.S. General Accounting Office, an investigative arm of Congress that gathers information on how executive agencies are doing their jobs, was the first to revisit the issue of export controls and education in the name of homeland security. A report released by the office concluded that the Department of Commerce "does not provide adequate assurance that U.S. national security interests are properly protected." Specifically, the GAO took issue with the Commerce Department's failure to have procedures to identify visa applicants who would be subject to deemed export controls, based on the type of work their profession required. The investigative agency identified a possible 15,000 temporary workers already in the United States who required deemed export licenses but were not being forced to apply for them. In addition, the GAO found, the Department of Commerce rejects very few deemed export applications.
A year later, the inspectors general of the Commerce, State, Energy, and Defense departments went on a fact-finding mission at major U.S. research institutions, including Stanford, UC Berkeley, Harvard, and MIT. The resulting report alleged that universities were not abiding by export control policy, saying "at least one university granted foreign nationals access to unclassified export-controlled technology without proper authorization." The report concluded that such lenient information-sharing could enable foreign students to reproduce sensitive technology, use it against the United States, and therefore "degrade [U.S.] combat effectiveness." According to Claus, that report remains classified, so it is unclear what facts led to the conclusions.
Little fuss was made over these preliminary reports. But when the Department of Commerce released its final inspector general's report in March of 2004, it was obvious from the title that the response was not ambiguous. "Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S." made it clear that, according to the Department of Commerce at least, academic research conducted by people from countries of concern is a direct security threat.
The Commerce Department was not willing to comment on either the 2004 report or the rationale behind the proposed rules. After multiple phone calls, a Commerce spokesperson told SF Weekly that "the report speaks for itself."
Despite the potential for negative long-term consequences from the new deemed export licensing rules, their implementation will never be voted on in the Senate or issued by executive order. Rather, the State Department, which has full authority to implement any export restriction it sees fit, published the proposed rules for a 60-day discussion period that will end on May 27. During that time the department will take into consideration comments and opinions from anyone interested enough to send one. That is, if anyone is aware of the issue.
Even top-ranking executives at the Institute for International Education, an independent nonprofit organization, "did not feel confident" speaking on the matter. Another group, known as NAFSA [formerly the National Association of Foreign Student Advisers]: Association of International Educators, was "not familiar" with the rules. Locally, the director of international student services at UC Berkeley hadn't heard of the regulations, either. Four science and engineering professors at Stanford had no idea what to say when contacted by SF Weekly.
The lack of institutional awareness suggests the rules will be implemented largely as written.
Just the same, many educators who are familiar with the regulations consider them to be inherently unworkable, discriminatory, and isolationist. If they are adopted in anything like the current form, these educators say, the international students who drive American universities will slowly be turned away in the name of national security.
When the inspector general's report was released in March 2004, 22 university presidents drafted a response to Condoleezza Rice, then the national security advisor. Atop their list of concerns was the inevitable creation of two classes of students on American campuses. Because only students from countries of concern will be required to apply for licenses, some students will continue to receive unfettered access to research facilities and material, while others will have to fight to use equipment as routine as a microscope.
"We are concerned that if this goes forward, it would force a discrimination against international students on our campuses," Barry Toiv, director of communications for the Association of American Universities, said.
In addition to the ethical concerns, the proposed rules are also raising real questions about logistics.
Claus, from the general counsel's office at Stanford, says that any international student with an interest in the sciences is already screened in much more detail than students who study other subjects. "To get the visa, these students have already been reviewed by the FBI, the CIA, and Homeland Security. They've already been scrubbed, and the State Department has decided they are a safe bet," she says.
But apparently not safe enough.
Under the new regulations, the Department of Commerce would be reviewing as many as 350,000 additional deemed export license requests every year, because all U.S. laboratories, research facilities, and universities will be subject to the new license restrictions. In 2003, Commerce reviewed just 846 applications for deemed exports to foreign nationals. The new volume of applications, it would seem, will be nearly impossible for the department to handle.
But when addressing the eighth National Forum on Export Controls last month, Peter Lichtenbaum, the acting undersecretary of the Bureau of Industry and Security, said the department had made administrative improvements and suggested that the processing time on license applications would be less than two months.
To get a license for a student from a country of concern, a university would have to go through a long application process for each student and for each piece of technology that student might potentially use. The application requires a detailed history of a student's citizenship(s); the student's résumé; a letter of explanation of the student's course of study; specific descriptions of the process, product, size, and output capacity for all technology and software to be used; a dollar value for the technology transfer; a description of the availability of the specified technology abroad; and a detailed description of measures that will be taken to prevent unauthorized access to the technology. There is a fee of approximately $1 per student, per application. A student such as Gupta, who is a college freshman and could be studying in a university for as many as 10 more years before completing a Ph.D., may have to apply for hundreds of licenses.
On top of licensing requirements, the new rules also call for a renovation in the way that universities track their international student body. Currently, universities are required to use an Immigration and Naturalization Service computer system to track students by their country of citizenship. The Commerce report suggested that universities will have to redo their records and begin tracking students by their birth countries instead.
For Lak Dae, a doctoral candidate in mechanical engineering at Stanford, such restrictions could prove detrimental to his academic career. Because he holds a Canadian citizenship card, he had no problem obtaining a student visa, but Dae was born in North Korea -- a country of concern -- so his research and education could have been -- and still may be -- altered or stopped altogether.
By adding layers of bureaucracy to the already sluggish federal machine, international student participation at U.S. universities will not only slow, it will be pushed elsewhere. "If intelligent people can't come here and work easily, they will go somewhere else," Claus says.
For Claus, who is among the leading experts on the subject, the political undertone for these rules is obvious. "The U.S. is having a less mature or less seasoned response [to terrorism] -- it's more like a 'close all the doors and the problem goes away' approach," she says. And closing the doors to international participation and research is exactly what the academic community does not want.
Some politicians, however, say that these rules are exactly what the United States needs. "I would suggest the standard we should use is that Chinese students are free to come here as long as they're studying poetry and [free] enterprise, and not high-tech systems that could have dual use," Rep. Dana Rohrabacher (R-California) said at an April 14 joint hearing of the House Armed Services and the International Relations committees.
"These rules presuppose that what is happening in U.S. classrooms is not happening elsewhere," Claus says. She believes the assumption that technology can be permanently kept in the United States is a false one that over time will cost America in terms of both scientific progress and academic performance.
Ph.D. student Ravi Kolluri, for example, hopes to return to India in several years, and says he will have no problem finding work in 3-D imaging there, because that technology, along with most computer- and science-related technologies, is globally available. In fact, many of the technologies that the U.S. is attempting to license originated abroad and are widely available on the Internet. By isolating the international community and therefore limiting future research and scientific achievements, these rules work against prevailing modes of scientific advance. Everything from space travel to cures for disease has been built and implemented by an international coalition of scientists. "These rules threaten to destroy that," Claus says.
Aside from the promise of scientific achievement that universities associate with international cooperation, there could be a distinct and powerful economic impact from reducing foreign participation at the university level.
According to the Institute for International Education, international student applications are already down 30 percent from 2003 in the United States, while applications to universities in India, China, and the United Kingdom are on the rise. In 2003, the 572,509 international students in the United States contributed nearly $13 billion to the U.S. economy. California alone received $1.8 billion from its international student population.
But the economic impact of reduced research goes far beyond the amounts of money foreign students spend while attending U.S. universities. "We are threatening to cut ourselves off at the knees," Claus says. If future U.S. research is crippled by lack of international involvement, major advancements will be made elsewhere first and, Claus says, "by our own insistence."
"There will be an obvious economic impact on universities and on the economy, but the larger impact will be the adverse effect these rules have on education," Claus says. She believes that one reason America continues to be a major player in the advancement of science and technology is because the U.S. has always been open to international participation in research and education. "That has carried us very, very far," she says. "And it has contributed to technological revolutions that have advanced our economy."
Debra Stewart, president of the Council of Graduate Schools, says that 50 percent of graduate students studying science and engineering in the U.S. are international students, nearly half of whom are from countries of concern. And limiting their access could also eventually threaten the access of American students to scientific training. If international applications steadily decrease, Rachel Claus notes, class sizes will also inevitably drop and courses that were once full may eventually be too small to be offered at all.
As the 60-day discussion period goes on mostly unnoticed, many worry that at this point, nothing can be done about the proposed regulation of foreign students as deemed exports. For students and educators alike, the rules seem stifling and unfair.
After thinking about the potential rules for several weeks, Gupta now says he intends to submit a comment to the Department of Commerce. "I still just don't think this can happen. But maybe I will get my MBA instead," he said with a shrug as he packed up his book bag and headed back to the Clark Kerr dormitory.
While Gupta is already considering a new career path, Claus warns that rules like these have been dangerous in the past. "When the Third Reich was emerging, they said that only Germans of pure Aryan descent could attend German universities. Significant numbers of German scholars departed," she says. "That was detrimental for Germany, but was glorious for the U.S.
"We got Einstein."
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