Bird Flu Research Flies Into Export Laws, Crashes, Then Burns

Posted by at 10:43 pm on April 11, 2012
Category: BISGeneralTechnical Data ExportWassenaar

Bird FluApparently international research on how best to prevent, contain and treat bird flu is now threatened by international laws restricting export of information relating to potential agents of biological warfare according to this report on NPR. The problem concerns research conducted by researchers in the United States and the Netherlands which resulted in a controversial paper concerning alterations in the virus that would make it more contagious. There was some concern that this information might be useful to terrorists and rogue states interested in biological warfare agents.

To address this concern, the decision was initially made to restrict publication of the study and related materials and to make them available only to designated researchers and government officials with “a need to know.” What apparently no one realized was that this would prevent the research from falling within the fundamental research exception and would, therefore, prevent cross-border discussions or transfer of the information without specific governmental authorization.

Once this was realized, the decision was made to eliminate the “need to know” restrictions and simply to publish the materials so that the research could be considered fundamental research and could be shared freely with researchers in other countries. But the government of the Netherlands is arguing that the publication of the research could not undo the effect of the earlier decision to restrict dissemination and that therefore the research could not be exported from the Netherlands without approval of that government.

This situation illustrates the difficulty in applying the fundamental research in practice. To begin with, there is no easy way to determine what is or is not fundamental research. Export lawyers and export professional at universities have tried to strengthen the case that research is eligible for the fundamental research exception by pointing to whether research was published or, even if not published, was permitted or required to be published under applicable grant contracts or university rules.

The conundrum here is whether sensitive material can be transformed into fundamental research simply by publication. If one group of researchers decides to release the information, does this act of a few individuals instantly transform the information into fundamental research? But if publication isn’t the standard for deciding what is fundamental research, what other standards are available and who should be able to apply those standards? What these questions without answers demonstrate more than anything else is the slippery slope that we head down when we try to apply export controls to information. Rather we should rely on classification rules and procedures to control dissemination of truly sensitive information.


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Copyright © 2012 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)


This H5N1 saga has been really interesting to follow. I didn’t know about the FRE issue, though. Thank you!

Comment by Chris W. on April 12th, 2012 @ 12:56 pm

It continues to bewilder me that the export control establishment, including industry, has so little regard for the First Amendment. Why is it that only cryptographers have had the fortitude to mount First Amendment challenges to export controls that are clearly a prior restraint based on content? The vast majority of what is being guarded could be restricted by regulation of conduct, as in the regulation of the performance of services such as application of engineering or scientific knowledge to the resolution of a particular question or application; or by maintaining the government’s property interest in and attaching strict contractual controls on information developed pursuant to R&D or production contracts, without regulating content qua content.

Another casualty of the confusion over publication was Dr. John Reece Roth. Counsel did not argue that the technical data hanled by his foreign graduate assistants was in the public domain, but rather that Dr. Roth mistakenly believed that it was in the public domain because it was going to be published, and therefore lacked the specific intent. There were even drafts of the paper in progress.

The government position was that because the university export control officer – who was a novice with little experience and – at that time – relatively little formal training told him that it was export controlled he could not have had a good faith belief that it was not. In other words, a learned professor emeritus was not entitled to have an opinion different from a novice, non-lawyer ECO.

Comment by Hillbilly on April 13th, 2012 @ 12:13 pm

I agree with most of the above suggests, but I would like to take the final point a step further. When Professor Roth was advised that what he wanted to export was controlled (and disagreed), he should have gotten another opinion – the opinion, of a EC lawyer or the ECO’s management. I don’t recall reading that he ever did that. Whether that decision was controlled or not-controlled Prof. Roth would have done himself a favor.

I’m a non-lawyer ECO who has been trained and been in the business for years. I never mind hearing a second opinion or having a discussion – particularly when it’s a gray area. That sounds defensive and isn’t meant to be, a true professional would not mind a second look at the issue. Frankly, had I been, the ECO I would have had my decision confirmed.

My point if you disagree don’t simply ignore the decision/opinion as the professor seems to have done. That seems to have been his downfall.

Comment by LDM on April 19th, 2012 @ 8:06 pm