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When High Tech Must Be Kept Secret

Universities that do national defence research try to manage the tension between intellectual freedom and national security
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Much research into high tech, for example, drones, is sponsored by the armed forces, who give grants to universities whose professors and their grad students pursue the basic research. A dilemma arises: How to enable free inquiry while limiting the risk of espionage?

Robert J. Marks, director of the Walter Bradley Center, spoke with international trade attorney Daniel Mark Ogden on a variety of issues recently, including theft of technology research. As a trade attorney, Ogden helps firms manage legal risks in international trade and foreign business operations. But one case he recounted in the podcast (12:28–17:37) underlines the risks researchers run if they merely assume that they are covered by an exception for fundamental research:

Here’s an excerpt:

Robert J. Marks: It is claimed that we are getting a lot of leaks in terms of stolen technology. I ran across an article by Bloomberg that said that in February 2018, FBI director Christopher Wade told senate intelligence committee here that Chinese students, academics, and researchers are exploiting the US’s very open research and development environment and constitute a “whole of society threat.” Wow. To what degree, in your experience, is this true?

Daniel M. Ogden: There is this very large exception called the fundamental research exception. And what this means is that if the research being conducted is of a certain nature then the export control laws are exempted from applying to that research.

For example, when you do research on fundamentals of physics, doing experiments as to the speed of light, for example… What happens, however, is when you take that research and it becomes proprietary. In other words, you patent it or you want to seek to license it or you commercialize it or you restrict its publication. In other words, it’s not openly published. At that point, the fundamental research exception goes away. Now, the problem is, is that’s a grey line; it’s not always black and white. So that’s one issue that always has to be considered.

But the other thing is, and this is kind of a dual type of issue because the threat the United States faces isn’t just from a legal acquisition, you could say, of technology but also espionage. And so, even if you are involved in fundamental research and the fundamental research exception applies to that activity, you can still have espionage. And there isn’t anything called an export license for espionage because espionage is illegal.

Robert J. Marks: If there was an application for espionage, it would be turned down.

Daniel M. Ogden: Yeah. So you have the concern of technology that kind of makes its way over to another country through some legal means that requires an export license and then you have technology that makes its way to another country illegally, through espionage. They’re related but they’re a little bit different in the way in which they’re managed.

Robert J. Marks: What is interesting is that, as a professor, I get email at least once a month, from either China or Iran, from students wanting to come and visit and study in the United States. And indeed many of our graduate students across the United States are graduate students from China. And they’re good graduate students; they’re smart people. And so graduate students from Iran. And this always seemed kind of problematic to me, in terms of getting close to any sort of military research.

Daniel M. Ogden: Well, of course, the universities are open environments in that sense and we certainly want to have the best and brightest from overseas come and study. And that’s something that every university competes with other universities for. But when we do get foreign students, the same as when we get foreign visiting professors, they can’t be involved in anything outside the fundamental research area, where there is controlled technology.

There’s a very famous case called “The Tennessee professor went to jail.” He was in the STEM area at the University of Tennessee in Knoxville a few years ago, and I believe he had a Chinese graduate assistant work with him on a project. And he had been warned that this person required a deemed export license and he basically just ignored the warnings. And he’s now in jail.

J. Reese Roth was a plasma physicist at the time, working on drones for the US Air Force:

J. Reece Roth, an emeritus professor of electrical engineering, was sentenced on 1 July by a Tennessee district court for violating the Arms Export Control Act. He had been developing ways to reduce the drag on unmanned planes, and employed two research assistants without obtaining the required licence (see Nature 442, 232–233; 2006). Roth plans to appeal the verdict.

US scientist jailed for sharing sensitive data” at Nature News (2009)

A more recent article offers background:

The twist is, none of what Roth revealed was classified. And the foreign nationals weren’t spies, they were grad students. But as is typical with sensitive DoD research, foreign citizens were explicitly forbidden from working on the project without a special license from the federal government. By allowing Ph.D. candidates Xin Dai, from China, and Sirous Nourgostar, from Iran, to participate, Roth violated a once-obscure corner of U.S. export law that considers describing, demonstrating, or explaining certain things to a foreign citizen, even one that’s standing next to you in Tennessee, to be an illegal “export.”

Another of Roth’s violations resulted from a trip he took to China with a laptop containing files from the Air Force project, even though forensic tests later showed those files were never opened while he was there. During that same trip, he asked a student to email him some files. Roth said he was having trouble connecting to the internet, and told the student to send them to the account of a Chinese professor at the university he was visiting.

Justin Rohrlich, “Air Force Scientist Spilled No Secrets. He Still Went to Prison.” at Daily Beast (2018)

It should be noted that there is an economic incentive for universities to continue assuming these risks:

“Without going into details that I cannot divulge, I can reinforce the fact it is a longstanding issue,” retired CIA operations officer Charles Goslin told The Daily Beast. “Typically, universities get full compensation from the governments sending those students to the U.S. to study and then return with cutting edge research and IP. So, the incentive to keep the cash coming in outweighs the incentive to closely monitor the students from those countries.”

Justin Rohrlich, “Air Force Scientist Spilled No Secrets. He Still Went to Prison.” at Daily Beast (2018)

See also: What It Really Takes to Build a High-Tech Company, Sell It, and Get Rich Inventor and entrepreneur Hal Philipp offers a rewarding but cautionary true story (Robert J. Marks) This introduction to a series of five podcasts with remarkable inventor Hal Philipp recounts his struggle to retain the right to benefit from the intellectual property he had developed.

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When High Tech Must Be Kept Secret