Tuesday, March 25, 2014

Export Controls and the Control of Speech On University Campuses and By Faculty Abroad--On the Complicity of Universities and Government to Monitor and Restrict Access to Speech and Speakers

(Pix (c) Larry Catá Backer 2014)

Universities have become willing partners in systems of privatized law making.  Recently, universities have extended their complicity in these public-private regulatory complexes by extending a power to monitor and regulate a faculty's engagement with "foreign visitors" and more importantly with the people that a faculty member may see and engage with while that faculty member is abroad without the prior approval of the university.  This should concern not merely faculty but anyone interested in the privatization of rights regimes to enable the state to constrain behavior indirectly that they would be unable to effect directly without public accountability, and perhaps constitutional constraint. 

Set out below, besides a "model" of these university surveillance and approval systems, is information from the US Department of Commerce Bureau of Industry and Security on the "Denied Persons List" and its "Lists of Persons of Concern."  Faculties are urged to engage with their administrators on this issue should it raise similar concerns--and legislators might be held to account within  our democratic system for decisions that produce this state of affairs.

It is no longer clear whether universities are sites for the production of knowledge or whether they are now instruments for national policy that constrains that production.  Worse, as universities become more complicity in governmental programs of control, it has enormously increased the power of its lawyers--highly risk averse creatures ion this context--to begin to have an increasing say in the methodologies of knowledge production and dissemination.  These constraints are not undertaken directly.  Rather, as has become customary under emerging systems of governance (Backer, Larry Catá, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley (August 25, 2010). Law Review of Michigan State University, 2004; Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007) governments have been privatizing surveillance regimes and using surveillance as a means of constraining and managing individual activity indirectly.  The university is playing an increasingly important part as the enforcing element of these control regimes, where in the absence of law, over broad corporate policy substitutes and expands the implications of regulatory regimes in ways that substantially burden rights without the need for the democratic process of law making and the accountability that comes with it.

The example of this pernicious movement is set out below.  It is a generic model and one likely to affect all university researchers and other seeking to participate in the dissemination of knowledge. The long term effects have not yet been considered.  But it will be interesting as lawyers and the administrative elements of universities acquire--for our collective good--increasing power to manage the sources and uses of knowledge--and for all of the "right reasons" against which there cannot be any legitimate criticism.  

What is extraordinary is the collusion of the university and the state in this project. One cannot invite a foreign visitor to the university unless a lawyer from an administrative compliance office gives her assent, and that assent is part of a risk minimizing exercise grounded in the existence of "denied parties" listings that remain, at least to most faculty not just opaque but quite constraining. Indeed, the U.S: government has appeared to have created a number of lists, which are now being used by risk averse universities to create mindlessly overboard rules that stifle virtually all knowledge production to protect  technology and related secrets from leakage abroad.  It appears to be the great administrative failure of the overzealous administrator to overreach than to take the time to develop rules that fit the objectives. In this case, though, overeager and risk averse university administrators have a partner--federal regulators who have developed a host of tools for setting up governance organs for export controls that now appear to have leaked into all aspects of knowledge production and dissemination irrespective of its character--it is the aspects of universal and unconstrained  surveillance and control that ought to be troubling. . . . at a research university that does more than create technology with national security implications. See HERE.

More troubling is the extraterritoriality built into these systems. The university's rule's over-breadth is breathtaking but not unexpected. .Faculty interactions are now subject to surveillance and constraint both within and beyond the national territorial borders of the United States. Thus the University now sets itself up as the monitor of all foreign travel.  Under the guise of protecting the national interest (inadvertent export of technology--even products offered freely for sale in the US market place may contain important objects that when transported by faculty acquire a more sinister and threatening character) all travel must now be noticed to and examined by the university administration--and used as part of its (uncompensated) big data push for greater information for more expansive regulation (again see the "model" below).  Here the university serves a an over eager instrument of compliance with U.S. law and regulatory policies.  The over eagerness comes from an appallingly mindless (in the sense of avoidance of thinking about alternatives) risk aversion that seeks overcompliance as a guarantee against the risk of a possible need to defend action against a charge of non-complaisance.  The effort is efficient from an administrator's perspective-- it shifts the burden onto researchers and travelers, but the efficiency gains in administration produced costs--it creates sometimes substantial costs to researchers and will likely decrease effective foreign research--though the university has no intention of assessing that effect in its rush to assess thew administrative efficiency of its overbroad efforts. 

The process is offered as banal and easy.  The effect is hardly that--ñ and the possibilities of disciplinary action for example for failure to list all people one might speak with on a trip, produces for traps for the unwary and a means for arbitrary administration.  None of this appears to have been considered--and no faculty input was sought or used in the construction of this expanded system. Indeed, perhaps the most troubling aspects of these new administrative systems is the way in which the university increasingly uses "the law" as a shield against effective faculty engagement.  This is especially appalling when the university cloaks policy decisions (the regulations provide space for choices for compliance) under the "law requires us to do this and it is merely ministerial compliance" excuses.  We have seen this pattern in health care decisions and in decisions concerning compliance with the Affordable Care Act (Implementing the Affordable Care Act at Penn State, Employer Responsibility and the Part Time Employee; The AAUP Speaks, the IRS Regulations Are Released).

What might be called for is refinement in process.  Clearly there are some people and some transactions involving some research and product development that ought to be carefully scrutinized for its national security effects.  But rules can target these transactions more carefully.  Creating a system in which every interaction with all foreigners admitted to the United States or encountered abroad, produces a system of surveillance that is at odds with the foundational mission of a university and with the core political and human dignity ideals on which this Republic was founded for which which many of its citizens gave their lives to protect.  There must be a better way.

"MODEL" Approach to Visitor Approval at Model University

Foreign Visitors -

* Current UNIVERSITY policies do not require screening and review of all foreign visitors. However, foreign visitors can and do present significant export and liability risks for the institution.

* As a UNIVERSITY EXPORT COMPLIANCE OFFICER, it is my preference to have all foreign visitors at least screened against the relevant denied parties listings maintained by the federal government. It is important to know that a foreign visitor who has obtained a visa has not necessarily been screened against these denied parties listings as part of the Visa process. The government has specifically informed Universities that we cannot rely on the Visa process for denied party screening.

* In most cases, a screening can be completed within a few hours (or less if I am in the office). Even the most difficult screenings (maybe 1 in 1000) typically take less than 5 days. If you send me names a few days to a week in advance, we will likely have plenty of time to complete the necessary screenings.

* Federal law prohibits interaction of any type with certain denied parties. It is always best practice to do a screening to prevent an inadvertent violation of the U.S. denied parties/embargo restrictions.

Foreign Travel -

* Current UNIVERSITY Policies do not require screening and review of all foreign travel. However, foreign travel can and does present significant export and liability risks for the institution.

* All foreign travel should be reviewed due to the potential for inadvertent exports of controlled technology. Such exports can include items that one may not seem all that important to the travels (GPS receivers, software with encryption technology).

* All foreign travel should be reviewed in order to provide our faculty/staff with appropriate information about travel abroad. In addition, foreign travel review enables us to provide faculty/staff and departments/colleges/units with appropriate information on other areas within the University that have restrictions or pre-travel requirements for foreign travel (such as Risk Management & Global Programs).

* If research activities are occurring abroad, the University loses the Fundament Research Exclusion for the results obtained while abroad. This can impact the sharing of information/data developed abroad with foreign students/staff/faculty upon return to campus. When research is being performed abroad (regardless of funding mechanisms), we need to appropriately review the proposed research in order to mitigate any downstream consequences for export compliance purposes.

* In reviewing foreign travel, we can often collect names and information of known contacts while abroad, which enables screening against the denied parties listings. Just because we meet with someone outside the U.S. does not mean that the U.S. export laws governing restrictions on interactions with denied parties do not apply. THEY DO!

* Most international travel reviews can be completed within a few hours/days. Most reviews require nothing more than providing the destination/itinerary, information on persons/companies that the faculty/staff will be meeting with, and a brief description of the intended purpose of the trip (such as, attending or presenting at a conference/open meeting; collaborative research efforts; presentations at Universities; meetings with current or potential sponsors).

Review Process -

* If the proposed foreign visitor/travel is part of a sponsored research project, the review should be conducted through AN ADMINISTRATIVE COMMITTEE USUALLY DENOMINATED the Export Committee of an OFFICE OF SPONSORED PROGRAMS OR SIMILAR ADMINISTRATIVE UNIT.. Many times, the foreign visitor/foreign travel portion of the project is reviewed at award as part of OSP processing of the award agreement. If, however, no review was completed as part of the award process, or if situations/plans change during the course of a sponsored project (including changes in foreign destinations or the addition of foreign visitors not identified at time of award), then a follow up review may be necessary and appropriate. In such cases, please contact a DESIGNATED INVESTIGATOR for appropriate guidance.

* In all other cases, or if you are unsure whether a particular foreign transaction (visitor/travel) is part of a sponsored research project, please feel free to contact me via email directly.

Conclusion -

* No current UNIVERSITY Policies require pre-review of foreign visitors or foreign travel. This may change as the UNIVERSITY  fills an office of University Export Compliance Officer. I also hope to have an electronic submission process in place for these types of reviews at some point in time. It will, however, take some time to get from Point A to Point B, so I appreciate your help and understanding.

* Any review requests for foreign visitors/foreign travel are greatly welcomed. It is my goal and intention to complete all such reviews in a timely manner. Also, by sending these my way, you are enabling me to develop some metrics on the number and complexity of these reviews. This will help me to justify assigning/developing additional assets to streamline and coordinate these processes.

* This is not something that this UNIVERSITY is alone in facing. Many other higher education entities are or have instituted similar review requirements, many of which are much more robust than those proposed here.

As always, if anyone has any questions on export controls at the UNIVERSITY, please feel free to contact me. I am also quite happy to do targeted in-person training at any campus/college/department/unit. I can tailor the training to your specific needs, including the time available and the anticipated attendees (faculty, staff, combination of both, etc.).


U.S. Department of Commence
Bureau of Industry and Commerce
Denied Persons List

Denied Persons List
| Print |

Information on "How Do I Avoid Dealing with Unauthorized Parties?"

Instructions for downloading the ASCII Delimited version

Direct Download [Right Click to begin the download]
Date that the Delimited File was Last modified: Thursday, March 20, 2014

View the HTML version

Also available on this Web site are:

A list of the Recent Changes to the DPL that have occurred within the last 90 days and

Information on "Standard" denials

The Fine Print: Export Privileges are denied by written order of the Department of Commerce. Each order affecting export privileges is published in the Federal Register. These orders are the official source of information about denied persons and are controlling if there is an inconsistency with anything on this list or elsewhere on this Web site. The Federal Register from 1998 to the present is available on the Government Printing Office Access Web site. Prior to 1998, you may need to consult the printed version or other on-line source of the Federal Register.

Changes to the list within the last 90 days appear on the Recent Changes page. You are encouraged to check that page to see when an update has been uploaded to this Web site. Please remember, however, the Federal Register is the final authority for the terms of the denial orders.


U.S. Department of Commence
Bureau of Industry and Commerce

Lists of Parties of Concern
| Print |

In the event a company, entity or person on one of the following lists appears to match a potential party in an export transaction, additional due diligence is required before proceeding. Depending on which list the match was found, a match indicates either: there is a strict export prohibition; a specific license requirement; or the presence of a "red flag".

Prior to taking any further actions, users are to consult the requirements of the specific list on which the company, entity or person is identified by reviewing the webpage of the agency responsible for the list.
Denied Persons List

A list of individuals and entities that have been denied export privileges. Any dealings with a party on this list that would violate the terms of its denial order are prohibited.
Entity List

The Entity List identifies foreign parties that are prohibited from receiving some or all items subject to the EAR unless the exporter secures a license. Those persons present a greater risk of diversion to weapons of mass destruction (WMD) programs, terrorism, or other activities contrary to U.S. national security or foreign policy interests. By publicly listing such persons, the Entity List is an important tool to prevent unauthorized trade in items subject to the EAR.

BIS can add to the Entity List a foreign party, such as an individual, business, research institution, or government organization, for engaging in activities contrary to U.S. national security and/or foreign policy interests. In most instances, license exceptions are unavailable for the export, reexport, or transfer (in-country) to a party on the Entity List of items subject to the EAR. Rather, a prior license is required, usually subject to a policy of denial. For guidance concerning the prohibitions and license application review policy applicable to a particular party, please review that party's entry on the list. Procedures for removal from the Entity List appear in section 744.16 of the EAR. General Orders also may restrict exports to named individuals or entities.
Unverified List

A list of parties where BIS has been unable to verify the end-user in prior transactions. The presence of a party on this list in a transaction is a “Red Flag” that should be resolved before proceeding with the transaction.
Consolidated Screening List

The Consolidated Screening List is a downloadable file that consolidates export screening lists of the Departments of Commerce, State and the Treasury into one spreadsheet to assist in screening potential parties to regulated transactions. If the potential match is from the consolidated list, please follow the detailed instructions on the Consolidated List homepage to determine what list the potential match is from and under what government agency’s jurisdiction.

1 comment:

  1. Muito interessante a sua abordagem Larry.Não exatamente nesse contexto, mas agora na Universidade Federal de Santa Catarina, instituição que estou envolvida por conta das minhas pesquisas e do meu doutorado, tivemos um problema com um laboratório do Departamento de Aquicultura o Laboratório de Moluscos Marinhos (LMM), da Universidade Federal de Santa Catarina(UFSC).
    Esse laboratório desempenha um importante papel, na economia do estado de Santa Catarina, assim como, dadas as devidas proporções, na economia de outros estados brasileiros.
    Para você entender melhor o perfil dessa organização, é interessante conhecer um pouco da sua história.
    Em 1990 o LMM, e a Empresa de Pesquisa Agropecuária e Extensão Rural de Santa Catarina (EPAGRI),começaram a desenvolver, em conjunto com os pescadores artesanais de Santa Catarina, uma forma alternativa não extrativista de sobrevivência: o cultivo de moluscos marinhos.
    Essa iniciativa acabou tornando Santa Catarina, o maior produtor nacional de moluscos bivalves marinhos . O que repercutiu e repercute, gerando empregos, renda e resultados sociais, passíveis de percepção no que tange a melhoria da qualidade de vida, e na fixação de comunidades tradicionais nas regiões litorâneas, além de atuar como um importante mecanismo de contenção e reversão de fluxos migratórios.
    Nesse contexto, o que deve ser enfatizado, é que em vista do declínio dos recursos pesqueiros, sobretudo, devido a intensa exploração aliada à degradação ambiental, os mexilhões e as ostras, garantem parte da subsistência da população, ligada a pesca artesanal, tanto em termos de consumo como de comércio, em vários estados litorâneos brasileiros.
    Devido ao seu trabalho, O LMM foi o vencedor do Prêmio Finep de Inovação Tecnológica 2005, na categoria Inovação Social.
    É importante que fique claro, que a capacidade de integração entre as instituições públicas, geradoras de conhecimento e tecnologia, com o setor privado, que se apropria legitimamente destes, é que permite a efetivação de uma tecnologia inovadora com sucesso e o seu aproveitamento pela sociedade.
    Todo esse trabalho é realizado com recursos públicos, que inclui funcionários nem sempre bem pagos, e parcerias que são realizadas através de projetos, que por vezes geram recursos para manter esse trabalho.
    Pois agora um procurador dessa Universidade, com uma predileção por processos, e nenhuma por pessoas, resolveu investigar e reestruturar toda a forma como vem funcionando o laboratório desde a sua criação. Só que o número de pessoas que atuam lá e que fizeram essa pequena “revolução” é dez. Apenas dez pessoas mantém esse trabalho e lhe deram a proporção que tem hoje, com um orçamento de cerca de R$ 500,000,00(reais) ao ano. A Reitoria da Universidade, lavou as mãos, faz de conta que não está vendo que essa reestruturação, que nada mais é tirar a liberdade dos funcionários, que são na maioria pesquisadores, o que pode, quase certamente, ocasionar o fim desse trabalho. Uma vez que se eles tiverem que obedecer a toda burocracia que esse procurador está impondo a eles, a pesquisa realizada ali, assim como o trabalho social se tornará inviável.
    Meu envolvimento se deve ao fato de eu estar pesquisando as barreiras culturais ao compartilhamento de informação e consequente criação de conhecimento.Por esse motivo tenho me dedicado a analisar fluxos de informações em organizações de naturezas diversas,Foi assim que cheguei ao referido Laboratório. O que está acontecendo lá é um exemplo típico da absoluta falta de entendimento do valor de um trabalho como esse. A única possibilidade dessa falha ocorrer é ou uma cultura organizacional muito defasada, ou um grande problema de comunicação.Abs.Betita.