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Report of the Ad Hoc Committee on
Classified Research

I. Committee Members

  • Tom Lubensky, Chair, Professor of Physics, School of Arts and Sciences
  • Clyde F. Barker, Professor of Surgery, School of Medicine
  • Geoffrey C. Hazard, Jr., Trustee Professor of Law, School of Law
  • Lynn Hollen Lees, Professor of History, School of Arts and Sciences
  • Olivia S. Mitchell, Professor of Insurance and Risk Management, Wharton
  • Peter C. Nowell, Professor of Pathology & Lab. Medicine, School of Medicine
  • David P. Pope, Professor of Materials Science and Engineering, SEAS
  • Wendy S. White (Ex Officio), Senior Vice President & General Counsel for the University of Pennsylvania & Penn Medicine
  • Josie Rook, (Staff) Office of the Vice Provost for Research

II. Overview And Recommendations

The terrorist attack on the World Trade Center on September 11, 2001 opened a new era in U.S. and World history. In its aftermath homeland security and the battle against terrorism have become a central concern of the federal government, which has enacted major new legislation to control terrorism and is developing an antiterrorism research agenda. Since both of these moves could have a substantial impact on the University of Pennsylvania, the Provost convened an ad hoc committee (Almanac April 22, 2003) of senior faculty from across the University to advise him on whether current University policies regarding the conduct of research are appropriate for the new regulatory environment, whether any policies should be revised or rewritten, or whether any new policies should be promulgated. This is a report on the recommendations and deliberations of the ad hoc committee.

Recommendations of the Committee

In his charge to the Committee, the Provost asked for advice on three broad issues. The Committee's recommendations on these issues are as follows:

  •     Should the University and its faculty be permitted to engage in classified research? Should such research be conducted on campus or elsewhere?
  • Recommendations: The University should reaffirm and continue its policy of not allowing any classified research on campus. Individual faculty members should not, however, be prohibited from participating in classified research at off campus sites such as government laboratories or off-campus classified research facilities at other universities. The possibility of developing a University of Pennsylvania off-campus facility for carrying out classified research should not be excluded, but it is not clear at this point whether the benefits of such a facility would justify the cost, both financial and otherwise, of establishing one.

  •     How should Penn respond to the challenges created by new federal regulations regarding exclusion of researchers from participation in selected federally funded research projects because of nationality or other personal history or attributes?
  • Recommendation: The University should reaffirm and continue its policy of non-discrimination towards all of its faculty, staff, and students. It must, however, ensure that it remains in compliance with federal and other laws. The USA Patriot Act places restrictions that are in violation of University non-discrimination policy on access to select agents--biological agents and toxins such as smallpox or anthrax viruses that have the potential to pose a severe threat to public health and safety. There is, however, only one laboratory at the University that deals in select agents, and at the moment, no one working in it is affected by the USA Patriot Act rules. Given that laws governing these restrictions may change, either to eliminate them or to increase them so that a greater fraction of existing laboratories may come under their control, it is prudent at the moment for the University not to change its policies either regarding non-discrimination or toward research on select agents. It should, however, monitor carefully developments in this and other laws to see if action of some kind might be needed in the future.

  •     How should Penn respond to potential constraints on open communication of scholarly research in the name of national security?
  • Recommendation: Free and open communication is essential to the health of all scholarly research. The University should make clear that it places no constraints on publication. It should, however, conform to national norms regarding publication of material that may have an impact on national security. Major research journals such as Science and Nature are currently reviewing their policies regarding such material.

    In addition, the Committee believes that what universities do now could well shape national policy for years to come and that it is essential for this university and others to speak out clearly in defense of free and open expression, unfettered by restrictions on national origin, creed, or background. The ability of America and the world to improve their plight and to confront dangers, both known and unknown, depends on fundamental research carried out in universities. To be validated and verified, this research must be subjected to open review and criticism, which can only take place if its dissemination is not restricted. 

    III. Review of Committee Deliberations

    In its deliberations, the Committee reviewed Penn's current policies regarding classified research, read news reports and documents from the federal government and other universities, reviewed policies of other universities, and met on four occasions with people from Penn who have interest in and knowledge about the potential impact of new government rules on research at universities. Many of the documents we read, including the excellent June, 2002 "Report of the MIT Ad Hoc Faculty Committee on Access to and Disclosure of Scientific Information" and the January 2003 Report for Congress, "Balancing Scientific Publication and National Security Concerns: Issues for Congress," were provided by the Provost's office at the time of the formation of the Committee. Others such as the speech  "The Impact of Restricting Information Access on Science and Technology," delivered to the Georgetown Law center on April 25 of this year by Alice Gast, Vice Provost for Research at MIT, and the article, "The Patriot Act on Campus," published in the Boston Review by Jonathon R. Cole, Provost and Dean of Faculties at Columbia University, were obtained later.

    The Committee met with:

    • Wendy White, Senior Vice President and General Counsel for the University
    • Carol Scheman, Vice President for Government, Community & Public Affairs
    • Glen Gaulton, Vice Dean for Research and Research Training, School of Medicine
    • Vijay Kumar, Associate Dean for Research, SEAS
    • Harvey Rubin, Professor of Infectious Diseases, School of Medicine
    • Andrew Rudczynski, Associate Vice President for Finance and Executive Director, Office of Research Services
    • Matthew Finucane, Director, Environmental Health and Radiation Safety

    In addition, former Vice Provost for Research, Neal Nathanson, participated in early meetings, providing guidance and background for our task, and the Committee Chair met with Kevin Jude, a member of Graduate Student Associations Council (GSAC) executive board.

    Wendy White and Carol Scheman both reviewed some of the history of government policies regarding restrictions on research. They reviewed the 1985 National Security Decision Directive (NSDD) 189, which states, "the mechanism for control of information generated during federally-funded fundamental research in science, technology, and engineering at colleges, universities, and laboratories is classification." Though there are rumors that a new "sensitive but unclassified" category may be introduced, current policy for universities, as reiterated by Secretary of Homeland Security Tom Ridge in a speech at the April, 2003 meeting of the American Association of University Presidents and Chancellors, continues to be set by NSDD-189. Ms. White also reviewed Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), the USA Patriot Act, and immigration issues related to classified research. EAR prohibits the unlicensed export of certain controlled technologies for reasons of national security and trade protection. The purpose of ITAR is to control the export and import of defense articles and services, and it places restrictions on the export of items, including spacecraft systems and associated equipment, on a Munitions List.

    Drs. Gaulton, Kumar, and Rubin provided us with perspectives from the Schools of Medicine and Engineering and Applied Science regarding the impact of current and potential future government policies regarding classified research on research at Penn. They all agree that research is collaborative in nature with openness and sharing of information a key factor in moving knowledge forward and that the possibility of having to restrict participation of individuals because of their citizenship would be loathsome and burdensome, if not impossible, in a traditional university environment. Dr. Rubin indicated that there is an expanded interest by some faculty, particularly in the field of infectious diseases, in working with restricted agents but that at the time of his presentation Penn had not received any awards to work with them. He also indicated that Penn may be losing some research opportunities to universities like Penn State and MIT that have off-campus facilities for carrying out classified research and said that he would be in favor of Penn's considering the option of developing a secure site, possibly with other institutions, where classified research could be done. Dr. Kumar expressed concern that Penn is losing grants, involving collaboration between universities and industry that are governed by ITAR restrictions, and he called for more flexibility in University policy regarding these kinds of grants.

    Andrew Rudczynski reviewed issues related to ITAR and EAR regulations and the Cyber Security Research and Development Act and the challenges the University faces in ensuring that language in grants does lead to control of publications or the imposition of export controls. He said that there is a feeling in government that companies are using universities to get around export controls and that the government is increasing its oversight of university programs that might be affected by these controls.

    Matt Finucane discussed the burdens and increased administrative costs of complying with changing government regulations relating to research, particularly medical research. He said that currently Penn has only one laboratory, involving only three people at the New Bolton Center of the Veterinary School, which uses a select agent (botulinum toxin). Though other laboratories use materials designated as select agents, they use them in such small quantities that they do not come under controls set by the USA Patriot Act.

    The Committee reviewed current policies of sister institutions regarding classified research. It polled members of the Senior Research University Officers group, an organization of research officers from Caltech, Princeton, Yale, Columbia, Stanford, MIT, Harvard, University of Chicago, Penn, and Johns Hopkins, regarding (1) whether their university permits classified research on campus, (2) whether it has implemented any new rules or policies in response to the USA Patriot Act, and (3) what its policies are regarding ITAR regulations. With very few exceptions, the institutions whose policies we looked at do not allow classified research on campus. Those few institutions, such as the University of Colorado, that do, do so only in special circumstances. Several institutions, MIT, Penn State, Carnegie-Mellon, and Berkeley, for example, have off-campus facilities (Carnegie-Mellon has something called a "semi-autonomous unit.") where classified research can be done. None of the universities who responded to our poll questions (Caltech, Harvard, and Princeton) have made any policy changes in response to new regulations, though most do not yet have research involving select agents. Princeton, which has no projects affected by the Patriot Act, reaffirmed its policy on publication restrictions that does not allow sponsors to approve the use of personnel on grants or to submit publications for approval prior to release to the public. Harvard faces much the same situation as Penn does. It has one laboratory in its School of Public Health engaged in non-exempt select agent research. All participants are aware of and are in compliance with the law, and no participant has been excluded on the basis of his or her nationality. Given the small effect of the current laws and the fact that they may change in the near future, Harvard has "little inclination either to temper existing non-discrimination policies (or other university policies) or to bar university-based non-exempt select agent research in order to reconcile hypothetical conflicts that may never materialize." Harvard and Princeton have not been affected by ITAR regulations. Caltech deals with these restrictions on a case-by-case basis, and so far, it has had to deal with only one case.

    IV. Discussion of Issues

    Open expression and classified research: There was unanimous agreement among both the members of the Committee and those who spoke to it that universities in our society have been given the critical roles of educating our youth and of advancing knowledge, often essential for our future health and welfare, through scholarship and research. Free and open exchange of information is essential to the accomplishment of these missions. Classified research by its nature restricts the free flow of information and is incompatible with the goals of a modern research university. The University of Pennsylvania's current policy prohibits such research and should be reaffirmed.

    Off-campus facility for classified research: Though the Committee unanimously endorsed a reaffirmation by the University of its policy prohibiting classified research on campus, it did not rule out the idea of the creation of an off-campus facility associated with the University--possibly modeled after MIT's Lincoln Labs or Penn State's Applied Physics Lab but at least initially at a more modest level--at which classified research could be done. It did not, however, consider the details of how a facility that complies with current University policies could actually be created. At the moment, there is apparently no strong push by members of the faculty to establish such a facility, though there are indications that interest in one is increasing, particularly in the School of Medicine. Our recommendation is that no immediate action regarding the establishment of an off-campus classified research site be taken, but that the possibility of some future action be left open.

    The Committee did discuss the possibility of joining other already existing facilities such as the Applied Physics Lab at Penn State or of establishing an off-campus classified research facility in collaboration with other nearby universities such as Princeton, but again it did not feel that it had enough information to put forward a recommendation either for or against either of these moves. 

    Restrictions on publication in the interest of National Security: This is a complicated issue that is being debated on the national scene and it is still in flux. The Committee feels that it is not appropriate at this time to change any University policies or to introduce new ones relative to this issue.

    Restrictions on participation in research projects: It is likely that universities will be under continuing pressure from federal agencies to restrict participation, particularly of foreign nationals, in research projects that have a bearing on national security. The following laws, passed since Sept. 11, 2001, include clauses with such restrictions:

    • The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (commonly called the USA Patriot Act), P.L. 107-56
    • The Enhanced Border Security and Visa Entry Reform Act of 2002 (commonly called the Border Security Act), P.L. 107-173
    • The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (commonly called BPRA), P.L. 107-188
    • Cyber Security Research and Development Act, P.L. 107-305

    The University should do its utmost to avoid signing contracts that violate University policies on non-discrimination or restrict publication of results of research.

    The Committee was particularly concerned about language in the USA Patriot Act that mandates special restrictions on access to select agents based on such criteria as a person's country of origin, nature of his or her discharge from military service, and his or her commitment to a mental hospital. Such special treatment is discriminatory and contrary to University policies. The Committee considered recommending that the University discontinue all research involving select agents because of the potential of a conflict developing between federal law and University policies. It decided against such a recommendation because the list of select agents is subject to unpredictable change. Though there is now only one laboratory, involving only three people, in the University that uses select agents, the addition of substances to the list of select agents could increase the number of such laboratories overnight. A University policy of not permitting any research using select agents might then require shutting down a number of possibly large research operations. The Committee, therefore, recommends that nothing be done on this front for the moment.

    --The Ad Hoc Committee on Classified Research

     

    Reply to the Ad Hoc Committee on Classified Research

    The terrorist attacks on September 11, 2001 quickly led to new federal regulations designed to combat terrorism, and to the development of an antiterrorism research agenda. In this complex new legislative terrain, we felt it was important to pause and reflect on our existing research policies to ensure that they continue to best serve our research community. To consider this issue in-depth, last spring we convened a group of experienced, senior faculty members to review Penn's policy on classified research. Specifically, we asked the members of the task force to lend their expertise in three critical areas:

    • Should the University and its faculty be permitted to engage in classified research? Should such research be conducted on campus or elsewhere?
    • How should Penn respond to the challenges created by new Federal regulations regarding exclusion of researchers from participation in selected Federally funded research projects because of nationality or other personal history or attributes?
    • How should Penn respond to potential constraints on open communication of scholarly research in the name of national security?

    Foremost among the committee recommendations is the unwavering conclusion that we must continue our policy of not allowing any classified research on campus. The committee also recommended that we reaffirm and continue our policy of non-discrimination towards all of our faculty, students and staff while still complying with federal, state and local laws. The task force concluded that we should not change our policies with respect to either non-discrimination or research on select agents, but recommended that we continue to monitor additional developments in this area very carefully. And finally, the committee recommended that we make clear that we will place no constraints on publication; that we not change any existing University policies nor introduce new ones on this issue.

    The Committee's analysis clearly reflects our core values--that academic freedom and freedom of expression are paramount for Penn, and must never be sacrificed for the sake of doing classified research on our campus. Their report confirms that our existing policies on classified research, non-discrimination, and open communication of scholarly research are sound and essential components in promoting the most open and vigorous academic environment. They rightfully caution us to keep a close watch on additional legislative and policy developments in the coming years, and to help shape national policy in defense of free and open expression. We intend to do the latter vigorously.

    We are grateful to the members of the Committee for their thoughtful analysis and conclusions. We endorse their recommendations enthusiastically.

                --Judith Rodin, President         --Robert Barchi, Provost

     

     


      Almanac, Vol. 50, No. 14, November 25, 2003

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