Possible Impacts of Major Counter Terrorism Security Actions on Research, Development, and Higher Education
Report for Congress
Possible Impacts of Major Counter Terrorism
Security Actions on Research, Development,
and Higher Education
April 8, 2002
Genevieve J. Knezo
Specialist in Science and Technology Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Possible Impacts of Major Counter Terrorism Security
Actions on Research, Development,
and Higher Education
The Congress, the executive branch, and scientific and technical communities
have adopted and are considering research and development (R&D) and education-
related security measures to counteract terrorism. There is widespread agreement on
the need for these measures, but some experts say that they could have unintended
consequences. Some of these actions are included in the PATRIOT/USA Act, P.L.
107-56; in addition the Office of Homeland Security, federal agencies, and the
scientific and technical community have proposed or taken other actions. Activities
relating to higher education (in H.R. 3525, S. 1749, and other bills) include
controlling the visa entry and educational programs of foreign students and tracking
their movement through the higher education system. Activities relating to limiting
access to scientific and technical information include controlling access to R&D
laboratories, self-policing, classification and reclassification of already released
materials, withdrawal of information from federal agency websites, possible
additional exemptions to the Freedom of Information Act, (FOIA) and withholding
information categorized as “sensitive but unclassified.” Legislative proposals dealing
with access to biological agents that could be used by terrorists appear in H.R. 3448,
S. 1765, H.R. 3160, S. 1635, H.R. 3457, and S. 1764. These include proposals to
register users of potentially toxic biological and chemical agents; to inventory
laboratories that conduct research using pathogenic biological agents; to limit access
to R&D laboratories and biological research agents; and to give tax preferences to
firms that develop tools to deal with bioterrorism.
Among the unintended consequences of these actions, as cited by experts, are
high financial costs, especially to academic laboratories, of instituting security and
tracking measures, the possible deleterious impacts on freedom of scientific
information exchange and scientific inquiry, and the possible loss to the United
States of foreign technical workers in areas of short supply among U.S. citizens.
Policymakers might seek to ensure that those affected by counter terrorism policies
that affect R&D – scientists, academics, industrialists, and the public – are involved
in security-related decisionmaking and implementation of regulations.
Through “Operation Shield America,” the Customs Service has expanded
prohibitions on technology exports which terrorists could use. Some say that this
might help to prevent terrorism; others say it could possibly reduce the
competitiveness of U.S. technology sales in world markets.
The National Academy of Sciences, the American Chemical Society, the
American Psychological Association, and other professional groups have offered to
assist the government and are monitoring opportunities for their members to compete
for federal awards for counter terrorism R&D and related activities. See also Federal
Research and Development for Counter Terrorism: Organization, Funding, and
Options, CRS Report RL31202, which focuses on funding and priority-setting at the
interagency level, and on bioterrorism and cybersecurity R&D.)
In troduction ......................................................1
Relevant Laws Enacted Before September 11, 2001...................2
Introduction to Current Issues....................................3
Impacts of Counter Terrorism Activities on Students at U.S. Universities and
Definition of the Policy Issue.....................................4
Numbers of Foreign Students Who Study Science, Engineering, and
Introduction to Issues Relating to the Impacts of Counter Terrorism on Foreign
Students in Science and Technology...........................6
The “Technology Alert List”.....................................7
Foreign Student Visas..........................................9
Actions Taken to Increase Student Monitoring......................11
Pending Legislation: Enhanced Border Security and Visa Entry Reform
Act of 2001.........................................12
Other Security-related Actions Relating to Students..................13
Access to Student Records..................................14
Access to Business Records.................................14
Internet Service Provider Responsibilities......................15
Security Actions for Biological Agents................................17
Definition of the Policy Issue....................................17
Provisions of the PATRIOT/USA Act, P.L. 107-56: Registration for Users of
Pending Legislation With House or Senate Action: Enhancing Laboratory
Bioterrorism Prevention Act................................20
Public Health Security and Bioterrorism Response Act...........21
Related Bills Without Floor Action...........................22
Possible Constraints on Legitimate Scientific Inquiry, and Financial and
Difficulty of Restricting Access Without Impeding Research to Combat
Questions About Legitimacy of Possession by Foreigners of Substances
Approved b FDA, but on the CDC’s Select Agent” List.......26
Questions About Need for Foreigners to Do Research With “Select
Agents” to Develop Weapons Against Bioterrorism..........27
Exempting Some Laboratories From Registration Requirements....27
Items on the “Select Agent” List and CDC’s Inspection Role.......28
Restrictions on Laboratories ........................................29
Definition of the Policy Issue....................................29
Heightened Security and Limitations on Access.....................29
Restrictions on Access to Scientific Information.........................32
Definition of the Policy Issue....................................32
Self-Policing and Censorship....................................33
Proposals for “Tiered” or Restricted Access to Information........35
Removal of Information from Agency Websites.....................37
Illustrations of Information That Was Removed.................38
Environmental Protection Agency........................38
Department of Energy and Related Agencies...............39
Classification of Scientific and Technical Information................41
Introduction to the Issue................................41
Actions Taken Regarding Classification and Reclassification......41
Some Universities Are Considering Allowing Classified Research to Be
Expanding Exemptions To the Freedom of Information Act...........45
Activities of Scientific and Technical Professional Groups................50
The National Academies.......................................51
Possible Impacts of Major Counter
Terrorism Security Actions on Research,
Development, and Higher Education
Science and technology (S&T) are a double-edged sword in the fight against
terrorism – whether at home or abroad. S&T can help prevent and attenuate attacks
(communications, surveillance and prevention technologies, public health vaccines,
and pharmaceuticals), and defend against enemies (by strengthening the arsenal of
weapons). But S&T can benefit the terrorist by providing advanced technologies or
weapons – nuclear, chemical, biological, and cyber – and by giving terrorists
opportunities to purchase information and products to exploit the vulnerabilities of
complex technological systems on which advanced economies depend.1 “In the next
several years,” according to John C. Gannon, former chairman of the National
Intelligence Council and a former deputy director for intelligence at the Central
Intelligence Agency (CIA),
the continuing revolution in science and technology will accentuate the dual-use
problem related to biotech breakthroughs in biomedical engineering, genomic
profiling, genetic modification and drug development. Discoveries in
nanotechnology and materials science will add to the challenge. Responsible
scientists will have an extraordinary opportunity to improve the quality of human
life across the planet. At the same time, terrorists and other evildoers may
develop a powerful capability to destroy that life. The genetic revolution could
transform classic agents, oldie moldies, into custom pathogens resistant to all2
The fact that science and technology can be used for good and evil poses a
dilemma for scientists, government, and industry. Some who seek to deny scientific
and technical information to terrorists say this will restrain the free exchange of
scientific information, students and researchers, and ultimately inhibit scientific
progress. Gerald L. Epstein, with the U.S. Defense Threat Reduction Agency,
1Arnaud de Borchgrave, Frank J. Cilluffo, Sharon L. Cardash, Michèlle M. Ledgerwood,
R&D Needs, Cyber Threats and Information Security Meeting the 21st Century Challenge,
Center for Strategic and International Studies, December 2000, p. 11. See also: Katie
Hafner, “In the Next Chapter, Is Technology an Ally?” New York Times, Sept. 27, 2001, and
“Enemies at the Cutting Edge: Military Policies Are Obsolete. Improved Intelligence Must
Become the Mainstay of the West’s Future Defence,” Financial Times, Sept. 26, 2001, p.
2John C. Gannon, “Viewing Mass Destruction Through a Microscope,” New York Times,
Oct. 11, 2001.
commented, “ ‘Our ability to deny access to...weapons, ... is fundamentally
limited....’ Much of the relevant equipment is in widespread commercial use and
internationally available; the pathogens involved can typically be found in the
environment; and the underlying research and technology base is available to a
rapidly growing and thoroughly international technical community.” He continued,
“This means not only that a sophisticated adversary willing to devote sufficient time
and resources to developing biological weapons is likely to succeed, but that policy
measures to frustrate such developments are likely to affect many legitimate activities
outside of the ones they are intended to address.”3
In a democracy, it is difficult to develop policies that balance security and access
to information. Terrorists’ actions can not be predicted and need to be thwarted. On
the other hand, scientific and technological progress requires information exchange,
and economic growth depends, in part, upon commerce in technologically
sophisticated goods, which flow from advanced R&D in core fields of science and
Relevant Laws Enacted Before September 11, 2001
Even before the terrorist attacks of September 11, 2001, Congress had enacted
laws which sought to enhance the security of some activities relating to science,
technology, and higher education. Three salient enactments are described next and
will be expanded upon below in this report.
Pursuant to Section 212 of the Immigration and Nationality Act, as amended,5
State Department consular officials who issue student visas abroad are required to
deny visas for U.S. study in sensitive fields and/or areas of illegal export of
technology. Under the rules developed by the State Department to implement the
law, consular officials may deny visas for study in the United States in 16 categories
specified on a Technology Alert List to students from countries identified as “state
sponsors of terrorism.” The seven countries on the State Department’s List of State
Sponsors of Terrorism are Cuba, Libya, Iran, Iraq, North Korea, Sudan, and Syria.
In addition, with regard to issuing visas to students who wish to study in these fields,
consular officials are to “be alert to cases involving foreign nationals affiliated” with
countries subject to the Nonproliferation Export Control regulation, that is China,
India, Israel, Pakistan and Russia.6 The purpose is to avert the spread of weapons of
mass destruction and missile delivery systems, maintain U.S. advantage in some
militarily critical technologies, and prevent the transfer of arms and dual-use items
to terrorist states.
3Gerald L. Epstein, “Controlling Biological Warfare Threats: Resolving Potential Tensions
Among the Research Community, Industry, and the National Security Community,” Critical
Reviews in Microbiology, vol. 27, no. 4, 2001, as described in Secrecy News, from the FAS
Project on Government Secrecy, Vol., No. 6, Jan. 15, 2002.
4John Schwartz, “Silver Bullet-ism: Technology Runs to the Rescue,” New York Times, Dec.
58 USC 212(a)(3)I)(II).
6“Visas Mantis,” [http://travel.state.gov/reciprocity/SAO/MANTIS.htm].
Two laws were enacted after the World Trade Center bombing attack in 1993.
One was the “Antiterrorism and Effective Death Penalty Act of 1996,” P.L. 104-
132, which required the Secretary of the Department of Health and Human Services
(DHHS) to identify hazardous biological agents and require registration of
laboratories that transported hazardous biological agents. The law did not require
registration of laboratories that used any of the “select agents” or reporting of
existing inventory in laboratories. Researchers and laboratories that possessed
stockpiled strains in freezers but did not plan to transport them did not have to
register and report to the government. Biological warfare uses were prohibited.
Second, the “Illegal Immigration Reform and Responsibility Act of 1996,”
which was part of P.L. 104-208, authorized an electronic foreign student tracking
system, called the Cooperative Interagency Program Regulating International
Students (CIPRIS) Student Exchange Visa program (SEVIS), was authorized. The
electronic monitoring system was intended to make readily accessible to immigration
officials the names, residences and educational status of foreign students. The
program was not fully implemented before September 11, 2001 largely due to
objections from the higher education community about financial costs foreign
students would incur as the system was implemented.
Introduction to Current Issues
Since the September 11, 2001 terrorist attacks, Congress, the executive branch,
and the scientific and technical communities have adopted additional security
measures, or have considered legislative proposals, to counteract terrorism. These
include passage of the PATRIOT/USA Act, P.L. 107-56, signed by the President on
October 26, 2001, which, among other things, increased foreign student monitoring,
restricted access of potential terrorists to hazardous biological agents, and gave the
government access to some information about students and their Internet usage. The
government has issued regulations and imposed new guidelines about: withdrawing
scientific and technical information from federal agency websites and limiting access
to “sensitive, but non-classified” information; reclassifying already released
materials; limiting access to information accessible via Freedom of Information Act;
and expanding the list of technologies subject to export control. Proposals are being
considered to limit access to R&D laboratories, expand the list of biological research
agents that are controlled, and to register laboratories that conduct research using
materials of potential value to terrorists. In addition, some scientists have started to
impose self-policing and to develop guidelines relating to release or withholding of
certain kinds of scientific and technical information.
While there appears to be widespread agreement on the need for improving
security and limiting access, some researchers and academicians assert that certain
of these actions could have unintended consequences for the conduct of research and
development, training of students, and could impinge upon implementation of
existing laws. The efforts to restrict access to scientific and technical information,
entry to the United States of students who might be potential terrorists, and use of
hazardous biological agents raise several issues. These include the potential to
reduce the number of foreign students in science and technology, thereby possibly
reducing income to U.S. higher education institutions and, ultimately, the capability
of a future U.S. science and technology workforce. There are issues of constraining
scientific information exchange and scientific inquiry; limiting public access to
information presented to the Government and sought by the public pursuant to the
Freedom of Information Act and the Community Right to Know Act; and
determining who bears the cost of increased security for academic laboratories and
for screening scientific researchers.
Some in the research community suggest that steps might be taken in
implementing these actions to mitigate adverse effects on legitimate researchers and
students. This report summarizes the major concerns voiced by professional and
technical experts and issues that policymakers and administrators may consider when
drafting regulations and implementing policies and programs to ensure security for
activities that traditionally have been conducted without major governmental
regulation and restraint. (Another CRS report deals with legislation and
governmental action to coordinate funding and priority-setting for counter terrorism
R&D at the interagency level, and especially for bioterrorism and cybersecurity
R&D. See Federal Research and Development for Counter Terrorism:
Organization, Funding, and Options, CRS Report RL31202.)
This report addresses security actions and issues relating to students in higher
education, access to biological agents, access to laboratories, access to scientific and
technical information, and new export controls. It also identifies actions of selected
professional associations related to counter terrorism R&D.
Impacts of Counter Terrorism Activities on Students
at U.S. Universities and Colleges
Definition of the Policy Issue
Accounts of the pilot training received in the United States by the Septemberth
11 terrorists underscored the contribution of U.S. training and education to potential
terrorists. Concerns were heightened by reports that some terrorists entered the
United States on student visas, but never matriculated at the school to which the visa
applied. Some fear that foreign students may include terrorists or their sympathizers,
who gain entry to the United States for illegal purposes or, who, with the benefit of
knowledge and skills gained in the United States, could mount terrorist campaigns.
As an example,
In the 1970s and 80s, [Saddam] Hussein sent scientists to universities in Western
Europe and the United States for programs in chemistry, biology and animal and
plant pathology. One of them, Rehab Taha, who studied in Britain, became the
head of Iraq’s biological weapons programs. Many scientists working under Dr.
Taha, nicknamed Dr. Death by United Nations weapons inspectors, were also
trained overseas. The head of Iraq’s nuclear weapons program, Samir al-Araji,
earned mechanical engineering degrees at Michigan State University.7
7Diana Jean Schemo, “Access to U.S. Courses Is Under Scrutiny in Aftermath of Attacks,”
Counter terrorism security actions for U.S. and foreign students at colleges and
universities are intended to deny visas to potential terrorists, increase monitoring of
students, and prevent potential terrorists from studying “sensitive” subjects and
conducting R&D with material that could be used for damaging purposes. These
actions are especially pertinent to foreign students who study science and technology,
since they now comprise about 30% of graduate students studying science and
engineering in the United States and 33% of U.S. science and engineering doctoral
recipients. This section begins by describing the presence of foreign students in U.S.
science and engineering, addresses actions to control their entry and monitor their
access to science and technology courses, and identifies possible unintended
consequences of these actions, as suggested by higher education experts and research
Numbers of Foreign Students Who Study Science,
Engineering, and Mathematics
The National Science Foundation (NSF) reported that in 1998, the latest year for
which data are available, nonresident aliens, including foreign citizens on temporary
visas, comprised almost 4% of students who earned bachelors degrees in science and8
engineering, about 25% of students who earned master’s degrees in science and
engineering,9 and about 30% of the doctoral recipients in major science and10
engineering fields. Foreign students enrolling in U.S. science and engineering
graduate programs under temporary visas in 2000 rose by about 10.9% over 1999 and
now comprise about 35% of total graduate enrollment in science and engineering,
compared with 24% in 1993.11 The number of foreign graduate students in core
science, mathematics, and engineering fields is about equal to, or exceeds, the
number of U.S. students in some subjects, with students on temporary visas
constituting well over one-third of all doctoral recipients in major science and
engineering fields. See Table 1. Some foreign doctoral recipients remain in the
United States after receiving their degrees.12 Increases in the foreign graduate student
New York Times, September 21, 2001.
8Table 1, in U.S. National Science Foundation, Science and Engineering Degrees, by
Race/Ethnicity of Recipients: 1990-98, NSF 01-327 (June 2001).
9Table 2 in Science and Engineering Degrees, by Race/Ethnicity of Recipients: 1990-98.
10Based on data in Table 4, of U.S. National Science Foundation, Science and Engineering
Doctorate Awards: 2000, 2001.
11Joan S. Burrelli, “Growth Continued in 2000 in Graduate Enrollment in Science and
Engineering Fields,” NSF Data Brief 02-306, December, 21, 2001.
12According to NSF’s Science and Engineering Indicators 2000: “About 53 percent of the
foreign students who earned S&E doctorates from U.S. universities in 1992 and 1993 were
working in the United States in 1997. The stay rates are higher for scientists and engineers
from developing countries such as China (92 percent) and India (83 percent). In contrast,
stay rates are lower for those from emerging economies such as Taiwan (36 percent) and
Korea (9 percent) that can absorb highly qualified, skilled scientists and engineers.”
(Source: [http://www.nsf.gov/sbe/srs/seind00/frames.htm], chap. 4.)
population may decline, according to NSF, as capacity increases in other countries
to provide graduate education.13
Table 1. Foreign Graduate Students in U.S. Science and
Engineering Programs, 2000
Foreign StudentsForeign Students
As a percentage of all U.S. doctoral35%30%
recipients in U.S. science and engineering
As a percentage of all U.S. doctoral52%46%
recipients in engineering
As a percentage of all doctoral recipients49%42%
in mathematics and computer sciences
As a percentage of all doctoral recipients40%34%
in the physical sciences
Introduction to Issues Relating to the Impacts of Counter
Terrorism on Foreign Students in Science and Technology
The entry of foreign students to study science and technology is governed by
provisions of the Immigration and Nationality Act,14 which allows consular officials
to deny visas to aliens who are viewed as high risks to violate laws relating to the
export of sensitive information or technology. In 1996, Congress enacted legislation
to restrict visas and eligible fields of study for foreign students and faculty from
terrorist countries and to track foreign students. With the passage of the
PATRIOT/USA Act after the September 11th attacks, the Congress acted to ensure
funding for the tracking system, and to increase federal access to information about
students, researchers, and electronic communications. Additional legislation is
pending, some of which would tighten security more than existing programs. In
addition, pursuant to a Presidential directive, the Office of Science and Technology
Policy (OSTP) in the White House, and the Office of Homeland Security have been
charged with developing guidelines relating to entry of foreign students. The task
force is scheduled to issue draft guidelines in April 2002.
Most educators agree about the need for increased controls on foreign students,
and tracking of them and their courses of study in order to help deter terrorism.
13Based on data in Appendix table 4-22, in NSF, Science and Engineering Indicators 2000,
Chap. 4. Some of these data are based on Science and Engineering Doctorate Awards:
1996, Detailed Statistical Tables,(NSF 97-329), and NSF, Statistical Profiles of Foreign
Doctoral Recipients in Science and Engineering: Plans to Stay in the United States (NSF
148 U.S.C 212 (a)(3)(i)(II)
However, some say it is possible that intensified monitoring of foreign students and
their courses of study, as well as the imposition of fees to track students, together
with increased controls on sensitive research (which is discussed below in this
report), could result in fewer students, especially graduate students, coming to study
scientific and technical subjects in U.S. colleges and universities, and ultimately
could reduce the supply of scientific and technical personnel available for
employment in the United States. This possibility may be considered by
policymakers when developing implementing regulations for foreign students.
Another CRS report provides a detailed analysis of the issue of foreign students in
the United States and issues relating to visas, student monitoring, and related
legislative proposals of them.15
The “Technology Alert List”
Pursuant to Section 212 of the Immigration and Nationality Act as amended,16
State Department consular officials who issue student visas abroad are supposed to
deny visas for U.S. study in sensitive fields and/or areas of illegal export of
technology. Under the rules developed by the State Department to implement the
law, consular officials may deny visas for study in the United States in 16 categories
specified on the Technology Alert List to students from countries identified as “state
sponsors of terrorism.” The 16 categories on the Technology Alert List (TAL) are:
1. Conventional Munitions: Technologies Associated with Warhead and Large
Caliber Projectiles, Fusing and Arming Systems,
2. Nuclear Technology: Technologies Associated with the Production and Use of
Nuclear Material for Military Applications,
3. Missile/missile Technology: Technologies Associated with Air Vehicles And
Unmanned Missile Systems.
4. Aircraft and Missile Propulsion and Vehicular Systems: Technologies
Associated With Liquid and Solid Rocket Propulsion Systems, Missile Propulsion,
Rocket Staging/separation Mechanisms, Aerospace Thermal and
5. Navigation and Guidance Control: Technologies Associated with the Delivery
and Accuracy of Unguided and Guided Weapons, Such as Tracking and Homing
Devices, Internal Navigation Systems, Vehicle and Flight Control Systems,
6. Chemical and Biotechnology Engineering: Technologies Associated with The
Development or Production of Biological and Toxin Agents, Pathogenics,
7. Remote Imaging and Reconnaissance: Technologies Associated with Military
Reconnaissance Efforts, Such as Drones, Remotely Piloted or Unmanned Vehicles,
Imagery Systems, High Resolution Cameras
8. Advanced Computer/Microelectronic Technology: Technologies Associated with
Superconductivity Supercomputing, Microcomputer Compensated Crystal
15Ruth Ellen Wasem, Foreign Students in the United States: Policies and Legislation, CRS
Report RL31146, Updated Oct. 16, 2001, 12 p.
168 USC 212(a)(3)I)(II).
9. Materials Technology: Technologies Related to the Production of Composite
Materials for Structural Functions in Aircraft, Spacecraft, Undersea Vehicles and
10. Information Security: Technologies Associated with Cryptographic Systems to
Ensure Secrecy of Communications
11. Lasers and Directed Energy Systems: Technologies Associated with Laser
Guided Bombs, Ranging Devices, Countering Missiles
12. Sensors: Technology Associated with Marine Acoustics, Missile Launch
Calibration, Night Vision Devices, High Speed Photographic Equipment
13. Marine Technology: Technology Associated with Submarines and Deep
Submersible Vessels, Marine Propulsion Systems Designed for Undersea Use and
Navigation, Radar, Acoustic/non-acoustic Detection,
controlled Machine Tools,
15. Advanced Ceramics: Technologies Related to the Production of Tanks, Military
Vehicles and Weapons Systems,
As noted above, the seven countries on the State Department’s List of State
Sponsors of Terrorism are Cuba, Libya, Iran, Iraq, North Korea, Sudan, and Syria.
In addition, with regard to issuing visas to students who wish to study in the 16
fields, consular officials are to “be alert to cases involving foreign nationals
affiliated” with countries subject to the Nonproliferation Export Control regulations.
The State Department identifies these countries as China, India, Israel, Pakistan and
Russia.18 The purpose is to avert the spread of weapons of mass destruction and
missile delivery systems, maintain U.S. advantage in some militarily critical
technologies, and prevent the transfer of arms and dual-use items to terrorist states.
Implications. The White House, reportedly, seeks to enlarge the list of
technologies on this list.19 Principal factors to consider in debating the utility of this
list and its possible revision are that: (1) international terrorists could reside in any
country, not only those on the list of seven countries; (2) technologies change quickly
and the list needs to be monitored and updated to exclude study in newly developed
sensitive areas; and (3) the United States needs to assess the balance between
rejecting students and allowing entry to them, given that students who do not receive
U.S. visas might ultimately choose to study a “sensitive” subject in another country.
The Association of International Educators20 proposed that controls on subjects for
study areas need to be “focused and multilateral.” This means limiting controls to
“narrowly defined sensitive areas with a high danger potential” and negotiating
controls “with other countries that are major destinations of foreign students, so we
don’t end up simply shifting the foreign student business to other countries.” It also
17“Visas Mantis,”[ http://travel.state.gov/reciprocity/SAO/MANTIS.htm].
18“Visas Mantis,” [http://travel.state.gov/reciprocity/SAO/MANTIS.htm].
19Chris Adams, “White House Overhaul of Students Visas Is Viewed as Unnecessary by
Colleges,” Wall Street Journal, Nov. 2, 2001.
20Concept Paper on “International Student Status,” NAFSA, Association of International
Educators, Nov. 27, 2001, 4 pp.
cautioned that a balance needs to be maintained between openness of the scientific
enterprise and undermining of cutting-edge research through excessive control.
(In a related matter, it has been reported that in March 2002, the Defense
Department (DOD)21 proposed a policy – whose text has not been disclosed publicly
but which is to be adopted within 90 days – that would restrict foreign nationals from
working on sensitive, but unclassified information technology projects. This includes
such things as writing software, processing paychecks, tracking supplies and
maintaining e-mail systems. The Treasury Department has banned noncitizens from
working on communications systems since 1998 and the Justice Department
instituted similar restrictions in July 2001. Nevertheless, critics of the DOD policy
fault it as xenophobic and short-sighted. Some say that there is a shortage of
qualified American citizens to fill many of these jobs (because of the small number
of U.S. citizens who study computer sciences), therefore, the jobs will remain
unfilled. They also say costs would rise if Americans filled the jobs since they
demand higher salaries.22 The U.S. high-tech industry relies heavily on Indian,
Chinese and other Asian workers who enter the United States on special H-1B visas.
Many of these visa holders reportedly are employed by the defense sector.23 Some
say that many military computer programs are written by foreign contractors, and that
this new policy could jeopardize military capabilities.24 The Information Technology
Association of American (ITAA) argues that such policies “could undermine the
nation’s long-term security,” and “precipitous action here could make it much more
difficult and expensive for the military services to acquire the requested TA
services.” It has urged the DOD to “conduct a full and public assessment of the
advantages and risks posed by the current policy and alternative methods to address
Foreign Student Visas
After the World Trade Center bombing attack in 1993, Congress authorized
creation of an electronic foreign student tracking system, called the Cooperative
Interagency Program Regulating International Students (CIPRIS) and later, the
Student and Exchange Visitor Information System (SEVIS) (enacted as part of the
“Illegal Immigration Reform and Responsibility Act of 1996,” which was part of
P.L. 104-208). The electronic monitoring system would make readily accessible to
immigration officials the names, residences and educational status of foreign
21Because the policy has not been released, there is uncertainty about its origins. Some news
reports say it was developed by the Undersecretary for Acquisition, Technology and
Logistics and others say it was developed by the DOD Deputy Director for Personnel
22Charles Piller, “U.S. to Curb Computer Access by Foreigners, Government: To Boost
Security Some Defense Department Work Will Be Done Only by Citizens,” Los Angeles
Times, Mar. 7, 2002.
23Piller, Mar. 7, 2002.
24Christopher J. Doobek, “DOD Reviews Systems Access: Draft Policy Could Curb Hires
of Foreign IT Workers,”Federal Computer World, FCW.com, Mar. 18, 2002.
25Letter from Harris N. Miller, President ITAA, to Hon. Edward C. Aldridge, Mar. 18, 2002.
students. The higher education community had opposed the system as too costly,
intrusive, and burdensome since “...universities [would have] to assume record
keeping functions for the [for the Immigration and Naturalization Service (INS)
which was to manage it],”26 and actions were not initiated to fully implement the
system. SEVIS was to be fully operational by 2003.
After the September 11th attacks, Senator Dianne Feinstein stated her intent to
introduce legislation to institute a six-month moratorium on the issuance of student
visas.27 She wanted the hiatus to allow time for the INS to implement the electronic
foreign student tracking system. The higher education community opposed the
proposed visa moratorium,28 and some professional groups such as the Association
of American Universities29 and the American Council on Education prepared draft
opposition letters for college and university presidents30 expressing the community’s
concerns to members of the Senate Judiciary Committee. The letter stated that only
1.8% of non-immigrant visas issued in 1999 were educational visas, and that
“singling out only student visas for added scrutiny is unlikely to make a significant
difference to national security.” Instead it recommended
-more funding to increase significantly the number of State Department consular
officials at U.S. embassies to permit more background checks of individuals
applying for visas, and
-more INS funding to permit the prompt implementation of the tracking system.
However, after the September 11th attacks, the Association of International
Educators and other groups announced an end to their opposition to the tracking
system. Thereafter, academic support increased for monitoring students from the
visa application stage through conclusion of their educational program in the United
26 Janet Aker, “University Openness Must Not Be Hampered by Visa Crackdown, Says Rep.
Boehlert,” Washington Fax, Oct. 3, 2001.
27 “Senator Feinstein Urges Major Changes in U.S. Student Visa Program, September 27,
28Dan Curry, “Monitoring of Foreign Students’ Status Draws Increasing Attention From
Lawmakers and College Groups,” Chronicle of Higher Education, Oct, 8, 2001.
29The National Association of State Universities and Land-grant Colleges (NASULGC) and
the Association of American Universities (AAU) created a joint website to document the
strategies and policies government and universities have implemented to respond to the
September terrorist attacks. In addition, the website includes information on federal
legislation and model state legislative proposals, laboratory security, information about
federal research opportunities relating to counter terrorism R&D, international students and
faculty, campus safety and preparedness, public education activities, electronic surveillance
and privacy issues, and statements and op-eds by university presidents and chancellors. The
AAU maintains the site [http://www.aau.edu/resources/resources/html].
31Schemo, September 21, 2001; Dan Curry, “Monitoring of Foreign Students’ Status Draws
Increasing Attention From Lawmakers and College Groups,” Chronicle of Higher
Actions Taken to Increase Student Monitoring
The PATRIOT/USA Act, P.L. 107-56, among other things, extended the
student visa monitoring program, which was applicable to U.S. universities and
colleges, to include such other educational institutions as “any air flight school,
language training school, or vocational school,” and authorized appropriations of
$36.8 million for implementation of the system to be completed by January 31, 2003.
The system will make readily accessible to immigration officials the names,
residences and educational status of foreign students. Foreign student fees of $95
will be paid to keep the system operational. Reportedly, while some university
administrators still object to the SEVIS monitoring system,32 many former opponents
of the electronic tracking system now endorse it, but object to the fee structure,
saying many foreign students will not be able to afford it.33
Some academic administrators say it will be difficult to develop an easy-to-
operate monitoring system and expand it to include all 74,000 U.S. universities,
technical schools and community colleges and have asked the government to provide
technical advisory groups, training to implement new requirements, and development
of a fee collection system that does not “reduce the number of international students
on our campuses because the collection mechanism is unworkable.”34
The executive branch also took action to increase security surrounding student
visas. In October 2001 President Bush issued Homeland Security Directive 2,
“Combating Terrorism Through Immigration Policies,” a directive ordering
Administration officials to conduct a “thorough review” of the nation’s student visa
system35 in order to end abuse of student visas. The directive charged the Secretary
of State and the Attorney General, together with the Director of the Office of Science
and Technology Policy and the Secretaries of Education, Defense, and Energy to
develop a program to end abuse of student visas. They are scheduled to issue draft
Education, Oct, 8, 2001.
32Abraham McLaughlin, “INS Reaches for High-tech Silver Bullet,” Christian Science
Monitor, March 18, 2002.
33“Tracking Foreign Students,” AAAS, Science Technology in Congress, Nov. 2001. The
American Council on Education wrote a letter to the INS Commissioner on February 12,
2002, stating that the $95 fee is too high and should be recalibrated given that Congress
provided $36 million to operate SEVIS initially, and that the State Department and the INS
should develop a simpler more efficient fee collection mechanism than what is planned in
order not to “lengthen the time required for international students to apply, gain admission,
and obtain a visa to attend our institutions.” Available at [http://www.acenet.edu/
washingt on/letters/2002/02february/ zi gl ar.sevis.cfm].
34Kate Zernike and Christopher Drew, “Efforts to Track Foreign Students Are Said to Lag,”
New York Times, Jan. 28, 2002 The details of the academic perspective are in: letter from
David Ward, President of the American Council on Education to INS Commissioner James
Ziglar Regarding SEVIS, Jan. 24, 2002.
35Sara Hebel, “President Bush Orders Cabinet-Level Review of Student-Visa System,” The
Chronicle of Higher Education, Oct. 30, 2001.
regulations in April 2002. The directive mandated a program to track foreign
students who receive a visa, their enrollment status and classes in which they are
enrolled, to identify the source of funds supporting the education, to develop limits
on the duration of student visas and “strict criteria” for renewal, to prohibit students
from certain countries from studying “sensitive” areas, including those relating to
weapons of mass destruction, and to identify “problematic applicants” whose visas
should be denied. Shortly thereafter the Justice Department began a program to
deport aliens who provide support to certain terrorist groups and to review
institutions which might not provide legitimate educational services for foreign
students.36 According to some professional associations, universities and
professional societies are not fully involved in these discussions and they fear that
they will not be able to participate in decisions made about foreign study entry.
Irving Lerch, head of international affairs at the American Physical Society was
reported as saying he “fears that the final criteria will curtail recruitment from
‘sensitive’ countries such as India and China, which supply the United States with
large numbers of graduate students.”37
Pending Legislation: Enhanced Border Security and Visa Entry
Reform Act of 2001. Other major legislation regarding student visas and tracking
that has received floor action includes the following.
H.R. 3525, similar to the Senate bill, S. 1749, the “Enhanced Border Security
and Visa Entry Reform Act of 2001,” was introduced by Rep. Sensenbrenner; it
passed the House at the end of December 2001 and is pending in the Senate.38 On39
March 12, 2002, when passing H.R. 1885, as amended by the Senate, the House
amended it by attaching to it H.R. 3525, as previously passed in the House. H.R.
3525 would prevent the government from issuing student visas and other
nonimmigrant visas to anyone from one of the seven countries that the State
Department considers to be a sponsor of terrorism, unless federal officials first
determined that the person does not pose a national security threat. The seven
countries on the State Department’s List of State Sponsors of Terrorism are Cuba,
Libya, Iran, Iraq, North Korea, Sudan, and Syria. (Reportedly, “In the 2000-2001
academic year, a total of 3,761 students from those seven countries attended
American colleges, according to the Institute of International Education. Of those40
countries Iran sent the most students, with a total of 1,844.”) The bill also requires
36Chris Adams and Jess Bravin, “INS Reviews Student-Visa Policies Amid Tightening of
Immigration,” Wall Street Journal, Nov. 1, 2001.
37“Societies Query Student-Visa Review,” Nature, Mar. 14, 2002, p. 111.
38S. 1749, “Enhanced Border Security and Visa Entry Reform Act of 2001, was introduced
on Nov. 30, 2001, by Senators Edward Kennedy, Sam Brownback, Dianne Feinstein, and
John Kyl. It is a compromise version of S. 1618 introduced by Senators Kennedy and
Brownback (House companion is H.R. 3205) and S. 1627, introduced by Senators Dianne
Feinstein and Jon Kyl (a similar bill is H.R. 3229).
39This bill would extend a program that allows certain illegal aliens and non-citizens who
have overstayed their visas to remain in the United States while applying for residency.
40Sara Hebel, “House Passes Bill Requiring More Screening and Monitoring of Foreign
that students provide information to verify their background, and would require
electronic tracking of information about foreign students including visa issuance, date
a student enrolls in a college, field of study, and date the student graduated or left the
institution. Colleges would have to notify the INS about a student’s
arrival/enrollment, and the State Department could not issue a visa unless it had
evidence that a student had been accepted to an approved academic institution. Until
SEVIS is implemented, the bill would set up a transitional student monitoring
program. Failure of an institution to comply could result in suspension of the
institutions’s ability to receive foreign students. The American Council on Education
says the initial campus reaction to the compromise legislation is favorable.41
There is other related legislation that has not received floor action.42
Other Security-related Actions Relating to Students
Three provisions of the PATRIOT/USA Act, P.L. 107-56 have caused concern
in the higher education community. These deal with its authorities granting access
to student and business records, and the responsibilities it imposes on Internet service
providers.43 Some caution that implementation measures should be developed so as
Students,” Chronicle of Higher Education, Dec. 21, 2001.
41AAU, CFR Weekly Roundup, Nov. 30, 2001.
42Other legislation which has not yet received floor action includes:
H.R. 3002 would establish an alien nonimmigrant student tracking system;
H.R. 3004, would establish a student visa tracking system;
H.R. 3033 would authorize appropriations of funds for the foreign student tracking
H.R. 3069 would prohibit granting student visas to students from countries on the State
Department’s list of governments that sponsor terrorism;
H.R. 3077 would expand the current list of approved educational institutions covered
in the Immigration Act of 1996 to include flight and language training schools;
H.R. 3181 would institute a nine-month moratorium on the issuance of visas to foreign
H.R. 3221 would impose a nine month moratorium on student visas;
H.R. 3222 would limit the number of H1-B nonimmigrant visas issued in any fiscal
H.R. 3286 would, among other things, establish a temporary moratorium, with
exceptions, on the issuance of visas to aliens from: (1) Afghanistan; (2) Algeria; (3) Egypt;
(4) Lebanon; (5) Saudi Arabia; (6) Somalia; (7) United Arab Emirates; (8) Yemen; or (9)
any country designated as a state sponsor of terrorism.
S. 1518, would expand the current list of approved educational institutions covered in
the Immigration Act of 1996 to include flight and language training institutions, and require
university reports on students’ failure to begin studies.
43AAU, CFR Weekly Wrapup, Oct. 12, 2001. For a detailed discussion of the potential
impact of the PATRIOT/USA Act on colleges, see: “Colleges Fear Anti-Terrorism Law
Could Turn Them Into Big Brother,” Transcript of online moderated discussion, CHE
colloquy Live, Feb. 27, Chronicle of Higher Education, Mar. 1, 2002. For detailed
information on the PATRIOT Act and electronic communications, see: The Internet and the
not to remove all privacy protections given to students and researchers in these
areas.44 These provisions apply to all foreign students, although implementation
would focus on students suspected of terrorist activity.45
Access to Student Records. Student records, are currently protected by the
Family Educational Rights and Privacy Act (FERPA),46 which prohibited disclosure
of student information without consent. According to the Department of Education’s
Family Policy Compliance Office, institutions may disclose records, without consent,
!certain government officials in order to carry out lawful functions,
individuals who have obtained court orders or subpoenas, and
! persons who need to know in cases of health and safety emergencies.
The PATRIOT/USA Act (Sec. 215), in effect, modified FERPA to expand the
ability of schools, without consent of students or parents, to release students’ records
to appropriate federal officials to aid in the investigation of terrorist activity if
approved by a judge. Officials would have to indicate how the information would
be used. Liability protection was given to schools that release such records.
Access to Business Records. Section 215 of the law modified the Foreign
Intelligence Surveillance Act (FISA) to expand business records that may be accessed
by the FBI with judicial approval as part of an investigation to protect against
international terrorism or clandestine intelligence activities. Sec. 215 expanded
accessible business records to include “... any tangible thing (including books,
records, papers, documents, and other items. . .).” Any person who provides such
records is indemnified against any liability for doing so. This provision opens
business records to greater scrutiny and, according to the Association of American
Universities, could provide access to student records, including personal information,
such as library use records and medical records.47
USA PATRIOT Act: Potential Implications for Electronic Privacy, Security, Commerce, and
Government, By Marcia S. Smith, Jeffrey W. Seifert, Glenn J. McLoughlin, and John
Dimitri Moteff, CRS Report RL31289, Feb. 12, 2002. 19 p.
44For a legal analysis of some of these issues, see two documents on the AAU website,
“USA Patriot Act: Provisions Governing Electronic Surveillance, Computer Networks, and
Privacy Effects of the USA Patriot Act on University Network Service Providers,” Mar.
2002 and “The Search & Seizure of Electronic Information: The Law Before and After the
USA Patriot Act,” Mar. 2002, [http://www.aau.edu/intellect/copyri.html].
45Universities are in the process of developing internal regulations to deal with these
changes in law. For an analysis of current views and effects on international students, see:
Scott Carlson and Andrea L.Foster, “Colleges Fear Anti-Terrorism Law Could Turn Them
Into Big Brother,” Chronicle of Higher Education, Mar. 1, 2002.
4620 U.S.C. 1232g, regulations appear at 34 CFR Part 99.
47AAU, CFR Weekly Wrapup, Oct. 12, 2001.
Internet Service Provider Responsibilities. With respect to online
service providers, section 217 of P.L. 107-56 basically expanded the circumstances
under which service providers will have to disclose or maintain certain information
at the request of government entities. The PATRIOT/USA Act defined new
circumstances under which Internet service providers, including universities, may be
called upon to permit government agencies without a court order to intercept the wire
or electronic communications of persons regarded as computer trespassers. The
provisions stipulate that an agent can conduct such interceptions only if the owner or
operator of the protected computer authorizes the interceptions, and that the
interceptions cannot acquire communications other than those transmitted to or from
the computer trespasser. In addition, the term “computer trespasser” cannot include
anyone known to have an existing contractual relationship with the computer
operators for access to all or part of the protected computer.
Universities were concerned that “... government could pressure service
providers (including universities) to ask for assistance as a means for gaining broad
authority to intercept an individual’s e-mail, websurfing, and other electronic
transactions to pursue wider investigations.”48 In addition, some say that the law
could penalize legitimate scientific and technical activities. Before enactment of the
PATRIOT/USA Act, the U.S. Association for Computing Machinery (USACM)
wrote to congressional leaders expressing concern about extending the definition of
terrorism to include non-violent computer crimes and “other acts seemingly unrelated
to terrorism. USACM also suggested that other broad provisions of the Act could
unintentionally include legitimate and ordinary behavior by scientists and
technicians.” The Association continued by concluding that “Unfortunately, many
of USACM’s concerns were not addressed as the act become law.”49 Among the
other concerns are issues of meeting the costs of expanded information maintenance
and assuring that service providers do not have to reconfigure their systems to meet
information requests that exceed their current technical capabilities.
Many foreign students enroll in U.S. science and technology educational courses
and, in some cases, they constitute a major fraction of the graduate student body in
core science and technology departments. Some experts contend that counter
terrorism actions should be implemented carefully because they might create an
atmosphere that is not welcoming to foreign students and researchers, even those
from countries not identified as terrorist threats.50 Citing the potential implications
for U.S. academic institutions, the conduct of R&D, and the economy, some argue
that caution should be taken in adopting actions which could reduce the numbers or
48AAU, CFR Weekly Wrapup, Oct. 12, 2001.
49Association for Computing Machinery Washington Update, Nov. 2001 issue. Letter Oct.
50Reportedly “a sizable number of students from the [Arab] Gulf Region left the United
States after the terrorist attacks, and did not return,” according to an MIT nuclear
engineering professor who was born in Jerusalem (E Masnod, “ Blooms in the Desert,”
Nature, March 14, 2002, p. 127.)
compromise the educational and research activities of foreign students.51 Many U.S.
institutions encourage foreign student enrollments since foreign students usually pay
full tuition and because they keep active some academic departments which might
otherwise close for lack of U.S. students. In addition, “an analysis by the National
Association of Independent Colleges and Universities shows that although foreign
students accounted for 3.4 percent of total enrollment in colleges and universities in
2000, they paid an estimated 7.9 percent of tuition and fees American universities
received that year.”52 Some college officials have reportedly argued that if the
number of foreign students were reduced, the broader economy could suffer because
foreign students and their dependents are estimated to “...pump $11 billion a year into
the American economy for tuition and fees, housing, living expenses and consumer
goods.”53 In addition, according to one observer, “At many universities, foreign
students, particularly from Asia, are a cheap source of high quality research
assistance.”54 Some academic critics say that the added cost and new hurdles for
foreign study entry presented by counter terrorism security actions could hamper U.S.
colleges’ ability to compete for top foreign student scholars and researchers, and that
the new fee and longer visa-application process could also threaten the existence of
some short-term academic programs that cater to international students, such as
summer English courses.55
There is also the issue of the effects on U.S. science of reductions in the
number of foreign students trained here since they make substantial contributions to
scientific research.56 Representative Sherwood Boehlert, chairman of the House
Science Committee, cautioned “ ‘We must not imperil the openness of our
universities, which are magnets for students around the world, many of whom choose
to settle in the United States.’ ...He also pointed out that foreign students are
‘absolutely critical elements of our science and technology workforce....’ ”57 If the
foreign student population in key advanced science, engineering, and mathematics
fields in U.S. colleges and universities is reduced, or if many foreign students trained
here decide to return to their home country, there is concern that personnel shortages
and U.S. capabilities could decline in these areas since U.S. citizens are not attracted
51Kate Zernike and Christopher Drew, “A Nation Challenged: Student Visas: Efforts to
Track Foreign Students Are Said to Lag,” New York Times, Jan. 28, 2002. See also
comments by James W. Ziglar, Commissioner, U.S. Immigration and Naturalization Service,
in National Academies’ Report on Post-September 11 Scientific Openness at Universities.
52Diana Jean Schemo, “Universities Persuade Senator to Drop Plan to Limit Visas,” New
York Times, Nov. 18, 2001.
53Schemo, “Universities Persuade Senator to Drop Plan to Limit Visas,” Nov. 18, 2001.
54Diana Jean Schemo, “Access to U.S. Courses Is Under Scrutiny in Aftermath of Attacks,”
New York Times, September 21, 2001.
55AAU Public Affairs Report, December 1, 2001 and Sara Hebel, “Proposed Rules on
Foreign Students Leave Many Colleges Worried,” Chronicle of Higher Education, Oct. 26,
56“Tracking Foreign Students,” American Association for the Advancement of Science,
Science Technology in Congress, Nov. 2001.
57“Chairman Boehlert’s Speech to SUNY Presidents on the Impact of Terrorism on R&D,”
Revised, Committee on Science, Press Release, Oct. 1, 2001.
to these fields in sufficient numbers to replace foreigners. The argument is also made
that training large numbers of foreign students affords many cultural benefits since
foreigners can learn to understand and appreciate democracy and a capitalist
Other concerns have focused on the costs of implementing monitoring systems,
the use and possible expansion of items on the “Technology Alert List” to deny
student access to “sensitive” subjects for study, and the propriety of increasing access
to student records and Internet communications. Implementing regulations may
address some of these issues. The National Academies (of Science) held a meeting
in December 2001 on the topic of Balancing National Security and Open Scientific
Communications: Implications of September 11th for the Research University.58 It
focused on three topics: access to scientific information and materials, the flow and
tracking of foreign students and scholars; and new fields of study and research
needed. The report included recommendations for additional study by the National
Academies and other groups.59
Security Actions for Biological Agents
Definition of the Policy Issue
The “Antiterrorism and Effective Death Penalty Act of 1996,” P.L. 104-132,
among other things, required the Secretary of the Department of Health and Human
58Association of American Universities (AAU), “National Academies’ Report on Post-
September 11 Scientific Openness at Universities,” Feb. 6, 2002. Posted at [http://AAU.
59The report includes the following recommendations for further study by The National
Academies: “In the post...September 11th environment, how can the nation meet its security
needs and maintain and develop science and technology for a better, healthy, and efficient
society without destroying academic freedom of inquiry and communication? In order to
answer this question, we believe there needs to be further study of the following twelve
questions .... 1. What information, if any, should be regulated? Which materials, if any,
should be regulated? Who should regulate them, and how? ...2. Who should make the
decision as to what scientific information and materials are dangerous? ...3. How might it
be possible to internationalize norms regarding access to and exchange of scientific
materials and information? ...4. To what extent are current non...classified mechanisms used
to restrict access to data (e.g., patient confidentiality, proprietary data) useful in the post
September 11th context? ...5. Does information regarding chemical or biological agents
require special security measures? ...6. Under what circumstances, if any, should
publication policies be altered? ...7. If access to knowledge is a right in a democracy, what
civic responsibilities come with it? ...8. How can the application of export controls to S&T
materials/processes be rationalized? ...9. How can the interested groups-universities,
intelligence and security agencies- productively work together on these issues? ...10. How
can we strengthen the social/behavioral sciences and the humanities in order to better
understand the roots of and responses to terrorism? ...11. How should the scientific
community engage the public in these issues? ...12. Are there key areas of scientific
research where an infusion of federal funds could make a significant difference in national
s e c u r i t y? ” [ ht t p : / / AAU.e du/ r e s e a r c h / NARe por t .ht ml ] .
Services (DHHS) to identify hazardous biological agents and require registration of
laboratories that transported hazardous biological agents. Specifically, “through
regulations” the Secretary was to “establish and maintain a list of each biological
agent that has the potential to pose a severe threat to public safety and health” (Sec.
safety procedures for transferring listed agents, safeguards to prevent access to such
agents by criminals or terrorists, and procedures to protect public safety in the event
of a transfer in violation of the safety requirements. The Act also required the DHHS
Secretary to “ensure [the] appropriate availability of biological agents for research,
education, and other legitimate purposes.” The law did not require registration either
of laboratories that used any of the “select agents” or reporting of existing inventory
in laboratories. Researchers and laboratories that possessed stockpiled strains in
freezers but did not plan to transport them did not have to register and report to the
government. Biological warfare uses were prohibited. Violators would incur
criminal penalties. The law governed the transfer of agents, not the use and
possession of them. Many research laboratories that maintain and work with these
agents are not registered because they have never shipped them.
Pursuant to P.L. 104-132, the Centers for Disease Control and Prevention
(CDC) promulgated a final rule on October 24, 199660 that took effect April 15,
agents (viruses, bacteria, fungi, and toxins, including genetically modified or genetic
material from those listed agents),61 as well as shipping and handling requirements
for facilities that transfer or receive select agents. In short, the rule required facilities
that ship or receive these potentially harmful agents to register with CDC (and obtain
a unique site registration number); disclose the type of agent being transferred, or
obtained, and state its intended use; have in place appropriate disposal procedures;
and submit to inspections by the agency.62 The transport of clinical specimens for
60Federal Register 61: 55189-55200. The rule is codified at 42 C.F.R. 72.
61Viruses: Crimean-Congo hemorrhagic fever virus, Eastern equine encephalitis virus, Ebola
viruses, Equine Morbillivirus, Lassa fever virus, Marburg virus, Rift Valley fever virus,
South American hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito),Tick-
borne encephalitis complex viruses, Variola major virus (smallpox virus), Venezuelan
equine encephalitis virus, Viruses causing hantavirus pulmonary syndrome, Yellow fever
virus; Bacteria: Bacillus anthracis, Brucella abortus, Brucella melitensis, Brucella suis,
Burkholderia (Pseudomonas) mallei, Burkholderia (Pseudomonas) pseudomallei,
Clostridium botulinum, Francisella tularensis, Yersinia pestis; Rickettsiae: Coxiella
burnetii, Rickettsia prowazekii, Rickettsia rickettsii; Fungi: Coccidioides immitis; Toxins:
Albrin, Aflatoxins, Botulinum toxins, Clostridium perfringens epsilon toxin,Conotoxins,
Diacetoxyscirpenol, Ricin, Saxitoxin, Shigatoxin, Staphylococcal enterotoxins,
Tetrodotoxin, T-2 toxin. The rule also addresses recombinant organisms/molecule and
includes “l. Genetically modified microorganisms or genetic elements from organisms on
...[the list] shown to produce or encode for a factor associated with a disease, 2. Genetically
modified microorganisms or genetic elements that contain nucleic acid sequences coding
for any of the toxins listed...or their toxic subunits.” (Source: 42 CFR 72; see also David
Malakoff and Martin Enserink, “Bioterrorism: New Law May Force Labs to Screen
Workers,” Science, Nov. 2, 2001, pp. 971-973.)
62The CDC regulations for handling are included in Biosafety in Microbiological and
diagnostic and verification purposes (that is, transport of a patient’s blood or tissue
sample from a physician’s office to a local laboratory) was exempt from the rule,
although isolates of agents from clinical specimens must be destroyed or sent to an
approved repository after diagnostic procedures are completed.
The adequacy of these requirements has been an issue.63 Since the September
11th attacks and their aftermath, legislative attention has focused on expanding the
requirements for registration of laboratories beyond transport; identifying and
registering laboratories that store and use biological agents that could be used in
terrorist attacks; refining lists of toxic biological agents and monitoring their use; and
limiting access of unregistered and potentially threatening users to certain biological
Issues relating to implementation of the enacted and proposed legislation focus
on: identifying categories of persons who would be allowed or prohibited from
working with select agents in U.S. laboratories; identifying and mitigating the
financial and “workplace” costs of registering researchers and laboratories;
determining whether to expand the list of “select agents;” and determining whether
certain categories of clinical laboratories should be exempted from scrutiny.
Provisions of the PATRIOT/USA Act, P.L. 107-56: Registration
for Users of “Select Agents”
Section 817 of P.L. 107-56, the PATRIOT/USA antiterrorism act expanded the
government’s ability to prosecute persons suspected of possessing biological agents64
to be used for terrorist acts, and addressed some of the limitations perceived in the
1996 law. P.L. 107–56 amended the biological weapons statute65 to fine or imprison
(for up to 10 years) a person who “knowingly possesses any biological agent, toxin,
or delivery system of a type or in a quantity that, under the circumstances, is not
reasonably justified by a prophylactic, protective, bona fide research, or other
peaceful purpose.” In addition, the law criminalized the possession, transport, and
receipt of such agents by persons who are under indictment; have been imprisoned
for more than one year; are fugitives from justice, unlawful users of a controlled
substance, illegal aliens, aliens not admitted for permanent residence from certain
terrorist countries where trade is controlled by the Export Administration Act or other
related acts, or who have been dishonorably discharged from the Armed Services.
Also subject to prosecution for possessing such biological agents under the law, are
persons who have been adjudicated as a “mental defective” or who have been
committed to a mental institution. No exemptions were specified or permitted; that
is, no waiver or appeals process was included.
Biomedical Laboratories, [www.cdc.gov/od/ohs/biosfty/bmb14/bmbl4toc.htm].
63AAU, CFR Weekly Wrapup, Nov. 2, 2001.
64See also: Scott C. Jenkins, “Antiterrorism Bill May Restrict Bioagency Possession;
Research Impact Hazy,” Washington Fax, Oct. 4, 2001, and William J. Broad, “Experts Call
for Better Assessment of Threat,” New York Times, Oct. 2, 2001.
65Chapter 10 of title 18, Sec. 175, United States Code.
Pending Legislation With House or Senate Action:
Enhancing Laboratory Security
Whether the PATRIOT/USA Act goes far enough in preventing access to toxic
biological materials remains an issue. “Bioterrorism experts have long urged
Congress to require researchers who possess deadly materials to register their
collections with CDC, and the agency has been embarrassed by its inability to specify
how many U.S. labs might have produced the anthrax that has contaminated U.S.66
mailrooms.” The Federation of American Scientists (FAS) took a strong position
on biological agents. It described the 1996 regulations “as inadequate because there
is no central inventory of dangerous microbes and toxins and because many
laboratories that work on anthrax are unregistered.”67 Several bills are pending that
would permit enlargement of the list of “select agents,” create a national registry to
track “select agents,” require registration of users, or provide government financial
support for registering users and enhancing laboratory security.
Bioterrorism Prevention Act. H.R. 3160, the “Bioterrorism Prevention Act
of 2001,” introduced by Reps. Tauzin and Dingell, passed in the House on October
104-132, by including controls on individuals who knowingly possess listed agents
and require them to register with the DHHS. It would make it illegal to possess, use,
or exercise control over a biological agent or toxin “in a manner constituting reckless
disregard for the public health and safety.” Research is not specifically mentioned
as an allowable reason for possession, but “prophylactic, protective or other peaceful
purposes” are permitted. The bill would allow the Secretary of DHHS to define a
broad set of controlled biological agents and toxins, and establish and enforce
standards and procedures governing their possession and use. In addition, the bill
would prohibit access to biological agents or toxins by any non-U.S. citizen who is
not a permanent resident (including individuals in the U.S. on student visas and
aliens with non-immigration visas). Illegal possession or transfer of controlled
agents would be subject to fines and up to five years in prison. The bill would
require any individual who works with select bioagents to obtain a registration from
DHHS and would make unregistered possession of these agents a federal felony
without requiring proof of intent to use the agent as a weapon. However, the bill
would allow the DHHS, in consultation with the Justice Department, to grant waivers
for specific classes of visas and specific individuals with “expertise valuable to the
United States.”68 Reportedly, this latter clause was added to satisfy those in the
pharmaceutical research and academic communities who rely on foreign nationals to
66Malakoff and Enserink, Nov. 2, 2001.
67Barney Turney, “HHS Evaluating Bioagent Reporting Rules, Which Some Critics Say
Contain Loopholes,” Daily Report for Executives, Nov. 2, 2001, p. A-24. See also: David
Malakoff and Martin Enserink, “Bioterrorism: New Law May Force Labs to Screen
Workers,” Science, Nov. 2, 2001, pp. 971-973. This article also identifies the 40 agents
subject to control.
68Association of American Universities (AAU), CFR Weekly Wrapup, Oct. 18, 2001.
conduct research.69 The bill also would prohibit disclosure under the Freedom of
Information Act of information about registered users and laboratories. The bill is
now before the Senate Judiciary Committee.
Public Health Security and Bioterrorism Response Act. The “Public
Health Security and Bioterrorism Response Act of 2001,” H.R. 3448, introduced by
Representative Tauzin, deals broadly with public health measures against
bioterrorism and also addresses laboratory-security issues. The language is similar
to that in S. 1765, introduced by Senator Bill Frist, called the Kennedy-Frist
“Bioterrorism Preparedness Act of 2001.” (For a detailed comparison of the70
provisions of these bills by section, see CRS Report RL31263.) Both bills
authorize funding to augment specific kinds of anti-bioterrorism and bioterrorism
public health activities and, with respect to R&D, would tighten the registration and
certification requirements for possessing hazardous pathogens and agents. The bills
contain similar provisions giving the DHHS Secretary authority to establish and
maintain a list of biological agents and toxins to be listed and regulated, and allow
for consultation with professional societies in developing the list. The list is to be
reviewed every two years by the Secretary. A database of the location of such agents
is to be maintained by the DHHS Secretary under both bills.
Under H.R. 3160 mentioned above, aliens would be excluded as users or
registrants or biological agents or toxins that could be used to harm the public health
or safety. In contrast, H.R. 3448 and S. 1765 would not exclude aliens as users, but
both bills limit access to those “who have a legitimate need for access” in relation to
the registration granted. They prohibit use of materials for biological warfare
purposes under section 175b of title 18 U.S. Code (for terrorist purposes) and
prohibit use by those named in a warrant for domestic or international terrorism.
H.R. 3448 also prohibits access to persons under investigation for a terrorist act or
suspected of seeking information on biological agents for the intelligence or military
operations of a foreign nation. Under H.R. 3448 and S. 1765, the Attorney General
is to conduct background screening for registrants. S. 1765 specifies that research-
performing organizations, including universities, should be consulted in developing
regulations regarding use and transfer of agents. That provision is not in H.R. 3448.
Both bills provide criminal and civilian penalties and fines and jail terms for
violations. H.R. 3448 gives the DHHS Secretary grant authority to assist public and
nonprofit private entities in meeting security requirements for registration. Although
there are variations in the language, both bills respond to interests expressed by the
professional community to exempt clinical laboratories that use biological agents for71
diagnosis, verification or testing. Both bills permit DHHS to inspect registered
69Hafner, Oct. 29, 2001, op. cit.
70C. Stephen Redhead, Donna U. Vogt, and Mary E. Tiemann, Bioterrorism: Legislation to
Improve Public Health Preparedness and Response Capacity, CRS Report RL31263, Jan.
31, 2002, 34 pp. See especially p. 12 for a detailed comparison of provisions relating to the
use and possession of select agents.
71Reportedly during a hearing on this proposal, an American Society for Microbiology
official recommended that the legislation exempt clinical laboratories “so that facilities
engaged in diagnostic work would not have to be specifically registered as long as the
laboratories, and H. R. 3448 makes technical assistance available to laboratories to
upgrade security. Both bills would also exempt from mandatory disclosure under the
Freedom of Information Act, site-specific or identifying information submitted under
these regulations concerning registered persons, registered agents and security
H.R. 3448 was passed in the House on December 12, 2001 and referred to the
Senate. On December 20, 2001, the provisions of S. 1765 were incorporated into
H.R. 3448 (as substitute amendment, S.Amdt. 2692) and adopted. The Speaker
appointed conferees from the Committee on the Judiciary for consideration of Title
II of the House bill and Secs. 216 and 401 of the Senate amendment, and
modifications. It was committed to conference by the House on February 28, 2002.
It has been reported that staffers for conferees have been meeting and that the
conference to iron out final differences may be held in mid-April 2002.72
Related Bills Without Floor Action. Several other related bills have not
seen floor action. S. 1706, “Bioweapons Control and Tracking Act of 2001,” would
require the DHHS Secretary to maintain a list of biological agents or toxins, to
review the list periodically, to establish a national data base, and to develop
regulations for possession. The bill would impose penalties for violations and would
exempt from disclosure under the Freedom of Information Act (FOIA) registration
identification information. S. 661 (related bill H.R. 3306), the “Deadly Biological
Agent Control Act of 2001,” would also prohibit possession and use of listed
biological agents and toxins unless for research and requires DHHS certification for
users. It would require background checks and allows the Secretary of DHHS to
annually assess and review the “select agent” list. Laboratories would be subject to
periodic inspection; violators would face penalties.
S. 1635 and the House counterpart, H.R. 3457, “The Pathogen Research, Energy
Preparedness and Response Efforts Act of 2001,” among other things, would require
the Secretary of DHHS to (1) prohibit the unauthorized transportation, by persons
who are “nationals of countries which have repeatedly provided support for acts of
international terrorism,” of chemical agents or biological “select agents;” (2)
establish and maintain a list of each biological agent and toxin potentially threatening
to public health and another list of those agents and toxins potentially threatening to
national security; and (3) establish safety procedures for the transfer of such agents
S. 1764, the “Robert Stevens, Thomas Morris Jr., Joseph Cursed, Kathy
Nguyen, Ottilie Lungen, and Lisa J. Rains Biological and Chemical Weapons
Research Act,” introduced by Senator /, would provide incentives to increase
research by commercial, for-profit entities to develop vaccines, microbicides,
samples are destroyed after diagnostic procedures are completed.” (Scott C. Jenkins,
“Federal Laboratory Bioagent Certification Required Under Planned Legislation,”
Washington Fax, Nov. 8, 2001.)
72David Glendenning, “Few Hurdles Remain in Merge of Kennedy-Frist, Tauzin-Dingell
Bioterrorism Bills, Washington Fax, April 8, 2002
diagnostic technologies, and other drugs to prevent and treat illnesses associated with
a biological or chemical weapons attack. It would require the Secretary of Defense,
the DHHS Secretary and the Director of the Office of Homeland Security (OHS) to
develop and publish a “Biological and Chemical Agent Research Priority List,” of
agents and toxins that may be used as weapons of mass destruction, and for which
tax and patent incentives may be granted for the development of countermeasures for
approved manufacturers. It included an initial list of 43 biological agents (including
many of those on the CDC “select agent” list) and chemicals to be considered.73
Private organizations that sought to conduct R&D to develop countermeasures for
these agents would register with the Food and Drug Administration (FDA) and be
subject to inspection. The bill would extend patent term protection to include the full
time a product spends in the investigational new drug and new drug application
review stages and the bill would provide certain liability and indemnification
protection to private research companies. The NIH director would be authorized to
support upgrades of certain biological research facilities; NIH would be authorized
$200 million to award partnership challenge grants to promote joint ventures between
NIH, grantees, and for profit firms to develop biological counter measures.74
Implementation issues for actions and proposals addressing security for
bioterrorism focus on the PATRIOT/USA Act; implications for possibly impeding
legitimate research; financial and “workplace”costs of screening and registering
researchers; possession of “biological agents” for non-research purposes; questions
about exempting some laboratories from security rules; disagreement about items on
the “select agent” list; and questions about whether CDC should be given an
Possible Constraints on Legitimate Scientific Inquiry, and Financial
and “Workplace” Costs. The research community, especially the American
Association of Universities (AAU) and the American Society for Microbiology, have
sought to mitigate some of the restrictions placed on researchers in some of the
pending legislation.75 The AAU and the FAS sought the exclusion adopted in
73Including agents which are chemicals, that is “Nerve agents (including tabun, sarin, soman,
GF, and VX); Blood agents (including hydrogen cyanide and cyanogen chloride); Blister
agents (including lewisite, nitrogen, and sulfur mustards); Heavy metals (including arsenic,
lead, and mercury); Colatile toxins (including benzene, chloroform, and trihalomethanes);
Pulmonary agents (including phosgene and chlorine vinyl chloride); and Incapacitating
74See also: Lauren Hafner, “Incentives to Lure Private R&D on Countermeasures for
Bioagents and Toxins Part of Lieberman Bill,” Washington Fax, Dec. 14, 2001.
75The AAU expressed support for S. 1765, the Kennedy-Frist bill, but raised questions about
it, including the following:
The broad anti-terrorism bill that has already been enacted prevents certain
“restricted individuals” (such as felons, fugitives from justice, and others) from
handling or using specified hazardous agents. Additional legislation is necessary
Section 817 of P.L. 107-56 that permitted possession of biological agents for “bona
fide research” purposes.76 Nevertheless, some believe that the PATRIOT/USA Act
contains insufficient protections for researchers and imprecision about the definition
of research, which federal agencies will have to confront when implementing the law
and issuing regulations to administer it. For instance, concerns have been raised
about whether subjectivity that could be used in interpreting “bona fide research” as
a legitimate exclusion could constrain some scientific inquiry.77
Because the new law prohibits certain categories of persons from possessing
biological agents that could be used as weapons, including drug abusers, persons who
have been committed to a mental institution, and so forth, universities and private
laboratories whose researchers would need to meet the qualifications for possession,
to clarify how these restricted individuals are to be identified, e.g. background
checks. S. 1715 [supplanted by S. 1765 and passed in the Senate] provides that
the Justice Department will perform background checks. Can the legislation
provide flexibility so that a university may elect to perform background checks
itself on individuals who handle or use biological agents or toxins, rather than
having the Justice Department perform the background check?
Is there any way to establish a mechanism to grant waivers for individuals who
may fall under the “restricted persons” provisions of the broad anti-terrorism bill,
but who may nevertheless have valid reasons to use these agents for research
purposes? Also, is there any appeal mechanism for individuals whom the Justice
Department may find ineligible to carry out such research?
What are universities’ obligations to ensure that researchers do not fall under
one of the categories of “restricted persons” (such as drug use) that may not be
ascertainable through existing federal databases?
Will adequate funding be provided to the Justice Department to perform the
background checks? Also, can assurance be provided that the background checks
will indeed be performed promptly and will not impede ongoing research?....
(Source: Nails Hasselmo, President AAU to Honorable Bill Frist, Nov. 28, 2001. The text
of the AAU letter to Senator Frist was posted on the AAU website under “Research
Issues--Campus Lab Security.” Source: AAU, CFR Weekly Roundup, Nov. 30, 2001.)
76AAU, CFR Weekly Report, Oct. 16, 2001.
77Lauren Hafner, “Bioagent Research, Including Foreign Nationals’ Access, Appears Secure
for Now Under Patriot Act,” Washington Fax, Oct. 29, 2001. She reported: “Following the
Senate vote on the bill, Sen. Patrick Leahy, D-VT, the sponsor of the first Senate bill, [S.
1510] hinted additional work may be required to ensure the protections for research laid out
in the bill are properly codified. The ‘bona fide research’ exclusion ‘may yet prove
unworkable, unconstitutional, or both,’ he remarked in an Oct. 25 floor statement. Because
of his concern that the ‘subjectivity’ of the standard for violation of the new prohibitions on
possession could ‘have a chilling effect upon legitimate scientific inquiry,’ Leahy called
upon the research community and the Justice Department to collaborate on alternative
language to ‘provide prosecutors with a more workable tool.’ “ See PATRIOT/USA Act of
may need to conduct background eligibility checks and perform drug screening tests
on thousands of scientists and students who conduct research on the select agents on
the CDC’s government’s watch list.78 Academic institutions probably will need
guidance on which information to gather from researchers to satisfy the law’s user
The Association of American Universities (AAU) objected to both H.R. 3448
and S. 1765. Both, it said, refer to Sec. 817 of the PATRIOT/USA Act, which
restricts certain categories of individuals from having access to, or conducting,
research on certain biological agents and toxins. But “...neither...includes waiver or
appeal processes for these restricted persons, though the research community had
sought both. With a waiver process in place, restricted persons who pose no security
threats but are key to making research advances might still be able to contribute to
searches for vaccines and cures. An appeal process would allow for correction of
mistakes. The university research community is working to have language
incorporating the desired waiver and appeal processes include in the final conference
It has been estimated that up to 250 to 300 universities and additional state and
federal laboratories80 transport “select agents,” and have been required to comply
with the P.L. 104-132, the 1996 law. Many of these laboratories already screen
workers who do classified work for the military or for federal drug studies. But many
laboratories do not.81 According to the Congressional Budget Office (CBO) in its
cost analysis of H.R. 3160, it is likely that “tens of thousands” of additional
laboratories would be required to screen users under the broader requirements that
cover possession.82 Some fear the security provisions may go too far and claim that
background checks might be considered intrusive and affect “workplace morale,”
since they require information about personal history and behavior. Others believe
the research establishment will have to accommodate these upgraded security
requirements if the country is to minimize risks of chemical or biological attack.
There is also concern that the costs of background checks could become burdensome,
especially for academic laboratories. In addition some fear the costs of security and
inspection requirements could displace funds that would go to support R&D to
78Malakoff and Enserink, Nov. 2, 2001.
79“Waiver and Appeals Urged for Bioterrorism Bills,” AAU Washington Report, Mar. 13,
80Malakoff and Enserink, Nov. 2, 2001.
81Malakoff and Enserink, Nov. 2, 2001.
82U.S. Congress, House, Committee on Energy and Commerce, Amending the Antiterrorism
and Effective Death Penalty Act of 1996...., Supplemental Report [to accompany H.R.
83John Fialka, “U.S. Begins Testing Security Systems of University Labs That Use
Anthrax,” Wall Street Journal, Dec. 24, 2001.
Difficulty of Restricting Access Without Impeding Research to
Combat Terrorism. Some have argued that it is difficult to restrict access to
potential bioterrorists as is implied in the legislative proposals as discussed above
and that to do so could compromise legitimate counter terrorism R&D. According
to Ronald M. Atlas, an official of the American Society for Microbiology in
testimony before the Senate Judiciary Committee:
Implementation of restrictive controls to impede access to biological agents is
inherently difficult and potentially could also deter the critical research and
diagnostic activities to combat terrorism. Much of the material and equipment is
in widespread use and commercially and internationally available; dangerous
pathogens are naturally occurring; and, the research and technology knowledge84
base relevant to biological weapons is publicly available.
Questions About Legitimacy of Possession by Foreigners of
Substances Approved b FDA, but on the CDC’s Select Agent” List.
Concern has been voiced that more restrictive language relating to registration of
users could criminalize possession of some substances for innocent uses not
identified in the law or subject to interpretation. For instance, some biological
agents, like the botulinum toxin, have medical and cosmetic uses, but can also be
used as weapons. In some proposals discussed above, persons visiting the United
States on business, tourist and student visas could not use such agents and the
government would not have to prove that the person intended to use the toxin as a
The Food and Drug Administration (FDA) approved for cosmetic purposes
products containing “Botox,’ which contains the botulinum toxin. The deadly toxin
is on the CDC “select agent” list of regulated organisms, and the military is
attempting to develop a vaccine to protect troops against it and its paralyzing effects
(which for cosmetic uses may eliminate frown lines by immobilizing muscles in the
face and other areas of the body). The Commerce Department has imposed civil
penalties on U.S. companies that have exported it after finding they did not obtain the85
requisite export licenses. Some experts question the FDA’s approval of botulinum
toxin for legitimate uses because of its potential misuse. Dr. Donald Kennedy, a
leading biological researcher and editor-in-chief of Science magazine, argued that the
manufacturer of Botox may be “exploring the development of recombinant strains
that might, for example, produce longer-lasting paralysis.” As the number of
Americans getting Botox treatment increases from the current 1 million to 10 or 20
million, he asked “will we be happy to have that many of these hot bugs around?”
He argued that the FDA “should do a comprehensive and careful review of the risks
and benefits from extending its approval of botulinum toxin to cosmetic use. “Who
would have imagined a world in which terror weapons are employed as beauty86
84Atlas’ s testimony appears at: [http://www.senate.gov/~judiciary/te110601f-atlas.htm].
Cited in Secrecy News, the FAS Project on Government Secrecy, Dec. 12, 2001.
85Robert Pear, “Congress Acts to Tighten Toxin Laws,” New York Times, Oct. 12, 2001.
86Donald Kennedy, “Beauty and the Beast,” Science, Mar. 1, 2002., p. 1601.
Questions About Need for Foreigners to Do Research With “Select
Agents” to Develop Weapons Against Bioterrorism. The argument has been
made that some proposals to restrict access to biological “select agents”could limit
the ability of noncitizens to gain access to legitimate biological research in U.S.
universities or laboratories. “Dr. Robert Rich, president of the American Society for
Microbiology” has been described as being “concerned about possible restrictions on
foreign-born graduate students and scientists with keys to university labs. ‘They are
essential to American science,’ he argued.”87 Others say foreigners should not be
restricted from using some “select agents” since they are the scientists with the most
knowledge of exotic diseases pathogens that are prevalent in foreign countries.88
Reportedly, the Administration seeks to have scientists in other countries
become subject to analogous registration procedures to handle toxic biological agents
as those imposed on scientists in the United States. This is offered as an alternative
to the proposed Biological and Toxin Weapons protocol, which the United States has
not signed89 because the U.S. Government objects to opening up laboratories to
international inspection, reportedly to protect the proprietary interests of private
Exempting Some Laboratories From Registration Requirements.
There is also disagreement about exempting some researchers and uses from
registration requirements. Under the 1996 law, almost all the laboratories in the
nation, except those that transport “select agents,” are exempt. The exemptions also
include clinical diagnostic laboratories. Under P.L. 107-56, certain classes of
researchers are prevented from possessing harmful substances that could be used for
purposes of terrorism. Pending legislation, such as H.R. 3448, H.R. 3160, and S.
87Fialka, Dec. 24, 2001.
88Andrew Pollack, “Scientists Ponder Limits on Access to Germ Research,” New York
Times, Nov. 27, 2001. See also Jonathan Knight, “Crackdown on Hazardous Agents Raises
Concern for Bona Fide Labs,” Nature, Nov. 1, 2001.
89Martin Enserink and David Malakoff, “Bioterrorism: Congress Weighs Select Agent
Update,” Science, Nov. 16, 2001, p. 1438.
The 1972 Biological and Toxin Weapons Convention (BWC), that 143 nations have ratified,
prohibits the development, production and possession of biological weapons. International
discussions about compliance measures for the treaty “stalled during the summer of 2001
when the U.S. delegation withdrew because of concerns that enforcement measures – such
as lab inspections by an international team “– might compromise national security and
threaten biotech companies.” (Eliot Marshall, “Counterterrorism: U.S. Enlists Researchers
as Fight Widens Against Bioterrorism,” Science, Nov. 9, 2001, pp. 1254-1255.) At a
November 19 review conference in Geneva, the U.S. was to present several alternative
proposals, including one proposing criminalization for such possession, one to allow nations
to extradite for prosecution those who mishandle biotoxins and cross national borders, and
another to devise a “code of ethical conduct” for bioscientists. The U.S. still rejects
inspection of laboratories as favored by other countries. (Patrick E. Tyler, “Bush, In Reversal,
Seeks Rules for Enforcing Biological Treaty,” New York Times, Nov. 2, 2001). This has been
attributed to the United States government responding to the pharmaceutical industry that
opposes inspections of its factories saying secrets can be stolen ( Andrew Pollack, “Scientists
Ponder Limits on Access to Germ Research,” New York Times, Nov. 27, 2001).
1765, would expand prohibitions on researchers and present additional requirements
for laboratory registration, implying that additional laboratories would be monitored.
However, certain clinical uses would continue to be exempt. An official of the
Federation of American Scientists questioned exemptions for clinical laboratories
and asserted that “ ‘hundreds’ of labs around the nation – hospitals, government
contractors, and universities – are working on anthrax. There is also considerable
informal trading of biological specimens among researchers around the country.”91
According to one report, the FBI says there are about 22,000 such sites, including
small veterinary operations.92 An issue to be considered in implementation is to
ensure that agencies prohibit potential terrorists from benefitting from uses and users
exempted from regulation.
Items on the “Select Agent” List and CDC’s Inspection Role. There
is disagreement about language in some pending legislation mandating the DHHS
to revise its select agent list every two years. Experts say that developing the list was
not easy in the first place and there are likely to be technical disagreements among
bioweapons experts about adding or deleting items. For instance, some U.S.
scientists had objected to including Western equine encephalitis on the U.S. list and93
it was excluded. But other groups include it. Objections have been raised to
including Coccidioides immitis, on the grounds that laboratories that use it are not
required to screen anyone having access to the labs, it is easily grown from desert
soil, it is an unlikely choice as a biological weapons since allegedly the illness it94
causes is mild, and its infection rate is low. Different lists of “select agents” are
maintained by “a loose consortium of 34 countries that works to limit the export of
biothreats, called the Australian group.” It includes as “agents” food-and waterborne
diseases such as salmonella and cholera, that are absent from the CDC list. The
North Atlantic Treaty Organization (NATO) meanwhile, “has its own lists that
include dengue and influenza.....”95which are not on the CDC list. Some suggest
splitting the U.S. list into two classes, with the riskier agents subject to more
stringent regulation. There are also questions about whether the select agent list
would have to be continuously updated to allow for genetic alterations, such that
modified organisms might be considered new agents and thus exempt from the96
It was suggested at the National Academies December 2001 meeting on
scientific openness at universities that “A review of the CDC list of select agents
should be conducted with an eye to differentiation between the actual risk (that some
agents might become weapons and also importantly, that some areas of critical
research will become too difficult to pursue as a result of restrictions) versus the
91Turney, Nov. 2, 2001.
92Fialka, Dec. 24, 2001.
93Enserink and Malakoff, Nov. 16, 2001, p. 1438.
94Joshua Fierer and Tho Kirkland, “Questioning CDC’s ‘Select Agent’ Criteria,” Science,
Jan 4, 2002, p. 43.
95Enserink and Malakoff, Nov. 16, 2001, p. 1438.
96Eugene Russo, “Governing the Dark Side of Science,” The Scientist, Jan.21, 2002.
benefits (preventing weaponization and facilitating research on pathogenic organisms
and emerging infections). A similar review of chemical agents...may be needed as
In addition, “Administration officials have also floated the ideas of setting up
a new enforcement office within HHS to police microbe research, because CDC, a
public health agency, has traditionally resisted that role,” because it says it is not a
regulatory agency.98 Questions could be raised about whether CDC’s culture and
resources are adequate to take on an inspection role.
Restrictions on Laboratories
Definition of the Policy Issue
The fight against terrorism also involves actions to increase federal surveillance
of, and to limit access to, some non-biological and biological laboratories, including
academic laboratories, both to ensure security of science and technology information
that should be withheld from potential terrorists and to investigate the source of
anthrax used in terrorist attacks. Issues that could be considered in administering the
measures adopted focus on costs to laboratories to prepare for security investigations
and enhance physical security, and on access for legitimate researchers so as not to
impede scientific research.
Heightened Security and Limitations on Access
Some federal laboratories have limited public and visitor access to their
campuses. For instance, on September 20, 2001, Fermi National Accelerator
Laboratory announced that, in response to heightened security concerns, it would
institute security measures, severely restricting public access to the laboratory.
Cultural activities, all non-school related tours, and other access to the site would be
prohibited except to employees, visiting scientists and those with official business.99
The DOE national security programs now fall within the purview of the National
Nuclear Security Administration (NNSA), which began operation on March 1, 2000.
Some NNSA programs are conducted at DOE civilian R&D laboratories. Because
of heightened security, some have suggested that procedures could be developed to
97National Academies’ Report on Post-September 11 Scientific Openness at Universities,
op. cit. Dr. Charles Vest of MIT proposed to categorize chemical agents along with
biological agents. As noted above, S. 1764 would provide preferential tax incentives for
development of counter-terrorism technologies, including those relating to the chemicals
listed in the bill. For a discussion of the need to develop controls against the use of
chemical agents as terrorist weapons, see: James M. Tour, “Do It Yourself Chemical
Weapons,” Chemical and Engineering News Online, July 10, 2000, pp,. 42-45.
98Enserink and Malakoff, Nov. 16, 2001.
99“Fermilab Closed to Public Over Security Concerns,” Daily Herald, Arlington Heights,
Il, September 21, 2001, and Fermi National Accelerator Laboratory Press Release 01-27,
September 20, 2001.
ensure that the defense and civilian aspects of R&D are kept strictly separated and
that foreign nationals do not get inappropriate access to defense work.
The National Institutes of Health (NIH), which had an open campus before
September 11, closed seven of its entrances and now allows visitors to use only one
entrance. The agency was advised by the Advisory Committee to the Director of NIH
to establish a perimeter defense around the campus and to close other NIH sites
located outside of Bethesda.100 NIH is planning to allocate substantial resources to
improve its security, according to NIH Associate Director for Research Services,
Stephen Ficca. No precise estimates of costs of NIH security upgrades have been
Many academic laboratories have also been required to upgrade security or to
adopt measures which they believe reduce potential threats or public fears.
Reportedly, after the Iowa Governor called out the National Guard to monitor
facilities where anthrax cultures were stored at the Iowa State University in Ames,
the school’s “microbiologists decided that keeping anthrax spores as part of their
general bacteriological collection was more trouble than it was worth. So on 12
October they autoclaved the entire anthrax collection.” 101 Improving security does
not come without fiscal implications. For instance, it was reported that Northern
Arizona University in Flagstaff spent about $50,000 on security upgrades for
facilities where live anthrax cultures were used – for new door locks, a wall, and
security guards.102 Glen N. Gaulton, vice dean for research and research training at
the University of Pennsylvania Medical School, is reported to have estimated that
“the University of Pennsylvania may have to spend $5 million for security features
like special filters and pressurized air for handling the 40 agents that can be used to
make biological weapons — particularly if Congress rules that researchers working
on any genetic or molecular pieces of a lethal organism must take the same
precautions as scientists working with the organism in its entirety.”103
In an effort to track down the source of the fall 2001 anthrax attacks, the FBI
started to probe many of the over 250 research laboratories across the country that are
registered to transport dangerous organisms.104 The FBI reportedly requested lists of
employees, a description of the strains of anthrax used at each facility, and other
details. Laboratories under surveillance included federal and academic laboratories,
such as Brookhaven National Laboratory in New York and Louisiana State
100Nura Shehzad,”Solid Perimeter Defense Will Transform College Feel of NIH Campus,
Kirschstein Laments,” WashingtonFax, December 10, 2001.
101Joshua Gewolb, “Bioterrorism: Labs Tighten Security, Regardless of Need,” Science,
Nov. 16, 2001, p. 1437.
102Gewolb, op. cit.
103Diana Jean Schemo, “A Nation Challenged: Laboratory Security: Bill Would Require
Laboratories to Adopt Strict Security,” New York Times, Jan. 25, 2002.
104Eliot Marshall, “Counterterrorism: U.S. Enlists Researchers as Fight Widens Against
Bioterrorism,” Science, Nov. 9, 2001, pp. 1254-1255.
University in Baton Rogue. In November 2001, the FBI issued a subpoena, asking
all laboratories in the nation to provide the names of all staff who had been
vaccinated against anthrax.105 The media have reported that the Department of
Health and Human Services’ inspector general’s office instituted new security
reviews at academic laboratories and investigators “have begun testing the security
systems that are supposed to protect university laboratories from thefts of anthrax,
and some 30 other biological agents that terrorists could use. ...[I]n a sign of the
times, President Bush gave the HHS power to invoke military secrecy about its
university probes.”106 Teams of inspectors from the DHHS’s Office of the Inspector
General started inspections at universities, including the University of Texas Medical
Branch at Galveston. A spokesman for Representative Billy Tauzin reportedly said
that Congress has held many security briefings with DHHS on the security of
laboratories and that DHHS inspectors are investigating the security of biological
samples and of computer data. He noted that DHHS was not releasing a list of
laboratories which are being inspected.107
Details about federal government surveillance of research laboratories are still
being developed.108 While most observers agree there needs to be increased
105William J. Broad, David Johnston, Judith Miller and Paul Zielbauer, “Experts See F.B.I.
Missteps Hampering Anthrax Inquiry,” New York Times, Nov. 9, 2001.
106John Fialka, “U.S. Begins Testing Security Systems of University Labs That Use
Anthrax,” Wall Street Journal, Dec. 24, 2001. See also: Kris Axtman, “Campus Labs Eyed
After Anthrax Scare,” Christian Science Monitor, Dec. 10, 2001. According to the Council
on Governmental Relations (COGR), an academic and research university professional
group, the DHHS review of academic laboratories will examine the following:
1. Compliance with 1996 Anti-Terrorism Act provisions. Specific issues include
registration of facilities with the CDC, procedures for tracking and reporting of
transfers of select agents, and the question of whether the labs are properly
equipped to handle and safeguard the materials.
2. Compliance with the USA PATRIOT Act. The main focus here will be on the
restriction on access to select agents by individuals from the seven countries
listed in the Act. If directed, the IG could also review other aspects of the Act,
such as mechanisms in place to deny access to select agents to individuals that
are convicted felons, illegal drug users, those dishonorably discharged from the
military and others designated in the Act.
3. The physical security of labs that house select agents and the buildings the labs
(Source: AAU, CFR Weekly Roundup, Nov. 30, 2001)
107University Labs Inspected for Bioterror Risks,” CNN.Com, December 12, 2001.
108It was reported in the news that in February 2002, the Justice Dept. started “...sending
subpoenas to microbiology laboratories across the country for samples of the Ames strain
of Bacillus anthracis, the kind used in the letter attacks in the fall. Scientists working for the
..government said they hoped that studying the samples’ genetic fingerprints would help
determine which of 12 or more laboratories is the likely source of the bacteria in the
vigilance, improved security measures, and restriction of access to eliminate entry of
potential terrorists to research laboratories, some say that science is being over-
regulated and that increased controls could ultimately inhibit researchers and
compromise the conduct of research.109 Some college and university officials say that
laboratory reviews are being conducted unevenly. In an effort to guide its member
institutions, the American Council on Education sent all college and university
presidents a letter that discusses the issue of secure handling of biohazardous
materials, together with information about federal requirements, and urged that
schools take “extra care” in handling these materials.110 Other college administrators
have raised the issue of the costs, in time and personnel of providing information
about researchers and laboratory security measures to investigators. Reportedly,
some critics seemed assuaged about the potential for more coherent reviews after the
selection of a noted bioterrorism expert, Donald A. Henderson, as head of DHHS’s
new Office of Public Health ‘Preparedness.111
Some U.S. bioweapons scientists have expressed the view that recent increases
in funding for bioterrorism R&D at NIH (about a sevenfold increase in the National
Institutes of Allergy and Infectious Diseases which conducts most bioterrorism R&D)
“will stimulate the proliferation of labs that handle dangerous pathogens, and raise
the risk of an accidental or deliberate release.”112 Some say the money cannot be
absorbed effectively and will lead to the support of “bad science.” Others argue that
security controls are adequate and that “most biological agents pose only a limited
threat without the technology to turn them into weapons....”113
Restrictions on Access to Scientific Information
Definition of the Policy Issue
Traditional attitudes about open access to scientific and technical information
have begun to be challenged since the terrorist attacks, and actions have been taken
to keep potential terrorists from gaining knowledge that could be used to attack the
United States. Debates about how security can be accomplished without
compromising scientific inquiry, the public right to information, and public
attacks.” (William J. Broad, “A Nation Challenged: The Anthrax Trail; Labs Are Sent
Subpoenas for Samples of Anthrax,” New York Times, Feb. 27, 2002.
109Willie Schatz, “When the FBI Asks, Should Scientists Tell?’” The Scientist, Jan. 21,
110AAU, CFR Weekly Wrapup, Nov. 2, 2001.
111Marshall, op. cit., and Jim Yardley, “At an Anthrax Lab, the World Changed Quickly,”
New York Times, Nov. 21, 2001.
112Jonathan Knight, “Biodefence Boost Leaves Experts Worried Over Laboratory Safety,”
Nature, Feb. 14, 2002.
113Knight, Feb. 14, 2002.
participation in governmental, especially regulatory, processes114 raise fundamental
questions about how much the nation should limit the freedom of scientific
information exchange, scientific research (especially basic research), and publication,
which traditionally has occurred without governmental control. Proposals have been
made for scientists to self-police themselves to or establish disciplinary groups to
develop policies to restrict release of scientific findings. The government seeks to
withhold information categorized as “sensitive, but unclassified”; some civilian
agencies have been given classification authority that they did not previously have;
agencies have been told to reclassify certain declassified materials, and many
agencies have removed from their websites information which could be potentially
useful to terrorists. Several legislative proposals would extend exemptions under the
Freedom of Information Act to restrict disclosure of some R&D-related information.
These issues are discussed next.
Self-Policing and Censorship
Self-policing by scientists and professional groups and proposals to withhold or
classify scientific information have developed as an salient option since the
September 11, 2001 attacks. There are several examples of possible inappropriate
use of scientific information by potential terrorists. For instance, some say that
conceivably the September 11, 2001 terrorists could have perfected their aeronautical
and targeting skills on a computer game called Microsoft Flight Simulator, which
provided a means for target practice against a virtual Twin Towers.115 Others claim
that the terrorists could have predicted damage patterns in the World Trade towers
by using “software marketed [by a U.S. company] under the trade name LSDYNa –
an unclassified outgrowth of research on blast effects at Lawrence Livermore
National Laboratory – [and] might have been able to predict the collapse of the
buildings if anyone had considered the circumstances of a fuel-laden plane hitting the
towers.”116 They cite as evidence the fact that “planes that struck the trade towers
both came in with angled wings, suggesting that they were trying to knock out
structural columns on as many floors as possible.”117
But self-policing, or withholding scientific information, would likely be
controversial within the research community since they conflict with traditional
norms of scientific freedom. For instance, a U.S. scientist, Martin Hellman,
114Diana Jean Schemo, “Access to U.S. Courses Is Under Scrutiny in Aftermath of Attacks,”
New York Times, September 21, 2001.
115Steven Levy, “Tech’s Double-Edged Sword: The Same Modern Tools That Enrich Our
Lives Can Be Used Against Us. How Bad Will It Get?,” Newsweek, Sept. 24, 2001, p. 65.
116James Glanz, “F.B.I. Studies Terrorists’ Engineering Expertise,” New York Times, Dec.
117Glanz, Dec. 12, 2001. It was recently announced that a forthcoming report by the Federal
Emergency Management Agency and the American Society of Civil Engineers concluded
that there may have been no reasonable precautions that could have stopped the [World
Trade] towers from collapsing once they were struck and huge fires broke out.” (Eric Lipton
and James Glanz, “U.S. Report on Trade Center Echoes Lessons of Past Disasters,”New
York Times, Apr. 2, 2002.)
developed unbreakable codes for encrypting data and communications and placed
directions for their use by ordinary citizens on the Internet, despite the National
Security Agency’s (N.S.A) attempts to classify his work. Hellman and others
contended that classifying this information would violate academic freedom and be
an unwarranted limitation on their right to publish. But, reportedly, terrorists have
used Hellman’s codes to encrypt messages, rendering them impenetrable to
intelligence services.118 As another example, according to New York Times writer
Gina Kolata, nanotechnology “could produce weapons with the power of a
supercomputer embedded on the head of a bullet. ...It is a technology whose
consequences could be so terrifying that one scientist, Dr. K. Eric Drexler, who saw
what it could do, at first thought that he should never tell anyone what he was
imagining for fear that those dreadful abuses might come to pass.”119
Reportedly, scientists have engaged in self-policing in the past, for instance
during the late 1930s when some scientists engaged in a “voluntary effort to withhold
experimental data concerning nuclear fission....”120 More recently, there have been
numerous proposals for voluntary regulation or self-policing by scientists. For
instance, it was reported in the press that Dr. Anthony Fauci, director of the NIH’s
National Institute of Allergy and Infectious Diseases (which funds most of NIH’s
research against bioterrrorism), and others agreed that “...biologists must become
more aware of potential destructive applications of their work” and that scientific
societies should take “...a lead in promoting debate” about this issue.121 Dr. Raymond
A. Zlinikas, a biological weapons expert at the Monterey Institute of International
Studies, recommended that, in order to examine the need to withhold some biological
sciences information, “... scientists should convene a meeting like the one at the
Asilomar conference center in California in 1975, when scientists voluntarily adopted
guidelines regulating what was then the new technology of genetic engineering.”122
John Steinbruner, director of the Center for International and Security Studies at the
University of Maryland and vice-chair of the Committee on International Security
and Arms Control of the National Academy of Sciences, proposed creating a
“regime” to prevent “destructive applications of biotechnology research,” which
would be overseen by a global apparatus that would have responsibility for
“identification of the investigators, registering of the principal investigators and their
facilities; tracking the pathogens used in the research; peer review not only of the
scientific but also of the social implications of the research; and legal specifications,
such as how to protect proprietary property and security interests.”123 Similarly,
118Gina Kolata, “When Science Inadvertently Aids An Enemy,” New York Times, Sept. 26,
119Kolata, Sept. 26, 2001.
120Steven Aftergood, “Secrecy and Science,” Secrecy News, Feb. 18, 2002.
121Peter Aldhous, “Biologists Urged to Address Risk of Data Aiding Bioweapons Design,”
Nature, Nov. 15, 2001, pp. 237-238.
122Andrew Pollack, “Scientists Ponder Limits on Access to Germ Research,” New York
Times, Nov. 27, 2001.
123Janet Aker, “Dangerous Biotech Research –Public and Private – Would Be Monitored by
Proposed Global Oversight Body,” Washington Fax, Dec. 12, 2001.
George Poste, who chairs a Defense Department (DOD) task force on bioterrorism
and is a member of the Defense Science Board, suggested that either more
biotechnology work needs to be classified, or that biologists “must begin a process
of self-regulation of projects that have potential applications in developing
bioweapons....” His specific concerns focused on
projects in which viruses are engineered to evade or manipulate the immune
system. For instance, earlier this year Australian researchers relate that they had
inadvertently created a super-virulent strain of mousepox in a project aimed at
creating a contraceptive vaccine. And gene therapists, grappling with the
problems caused by immune reactions to the viral vectors they use to introduce
therapeutic genes, are now designing ‘stealth’ vectors that would escape the
attention of the immune system. Such technologies could be applied to viral
bioweapons with devastating effects, argues Poste.124
Proposals for “Tiered” or Restricted Access to Information. Some
experts propose that scientists should develop processes to categorize types of
information in a research project or report and selectively disseminate restricted
information only to qualified persons, or allow access to this information only on a
need-to-know basis. For instance, Poste said that researchers should declare, when
applying for a grant, whether the research could result in threatening applications,
with the possibility of the sponsoring agency denying permission to publish; or, for
example, that “anyone wishing to access genomic sequence data for dangerous
pathogens might be required to provide evidence of their accreditation with a
legitimate laboratory.”125 Reportedly “...the White House has asked the American
Society of Microbiology...to limit potentially dangerous information in the 11
journals it publishes, including Infection and Immunity, The Journal of Bacteriology,
and The Journal of Virology. One reported White House proposal is to eliminate the
sections of articles that give experimental details researchers from other laboratories126
would need to replicate the claimed results, helping to prove their validity.” Others
say restrictions should be placed on information about particular genes that cause a
given microbe to be unusually deadly and that “[s]ome scientists have already
abandoned certain research efforts, fearing the results could fall into the wrong127
hands.” For instance, Craig Venter at the Institute for Genomic Research said his
firm halted a project on making artificial microbes. “ ‘We were going to make a
synthetic micro-organism to study biology and evolution’ but decided to stop since
techniques could be used to make a synthetic pathogen.”128
During the aforementioned National Academies’ meeting in December on
scientific openness at universities, Dr. Charles Vest, president of the Massachusetts
Institute of Technology, proposed a taxonomy to evaluate the risks of open access to
scientific information and materials. It included three categories of risk, ranging
124Aldhous, Nov. 15, 2001.
125Aldhous, Nov.15, 2001.
126Broad, Feb. 17, 2002.
127Pollack, Nov. 27, 2001.
128Pollack, Nov. 27, 2001.
from “serious” to “more or less modest,” to “minor or non-existent.” He suggested
distinguishing between scientific “know-how” and “fundamental information” to
categorize risk. “Therefore, how to build a nuclear bomb belongs in the “serious” risk
category, whereas basic physics belongs in the “minor or non-existent” risk
category.”129 It was reported in February that the Environmental Protection Agency
(EPA) is trying to develop a plan to make information on chemicals available in a
“tiered” manner, “such as making available less-detailed information, or making it
available to a smaller, more limited group of people. ....For example, general
information about facilities and chemicals would be available to everyone on EPA’s
site on the World Wide Web. A second tier of resources that would be more detailed
would be available to users who ‘want to register with the site, and let us know who
you are.... A third set of resources would ‘require more verification’ from users....”130
Other agencies have taken actions to limit access to information. The
Department of Transportation’s Office of Pipeline Safety (OPS) has discontinued
providing open access to the National Pipeline Mapping System (NPMS). Because
of security concerns, “OPS no longer provides unlimited access to the Internet
mapping application, pipeline data, and drinking water unusually sensitive area data.”
Access to data, but not to Internet mapping applications, is being provided only to
pipeline operators and local, state, and federal government officials.131 The Bureau
of Transportation Statistics’s (BTS) National Transportation Atlas Databases
(NTAD) and North American Transportation Atlas (NORTAD), which provided
geospatial data relevant to the National Pipeline Mapping System, have limited user
access. Data will be provided, after consideration of a written request, only to
Federal, state, and local government officials. BTS is reevaluating whether the data
will be provided in the future.132
In opposition to some of these moves, critics say that the R&D that some seek
to control is vastly different from the World War II Manhattan Project which isolated
nuclear weapons scientists to conduct research at secret sites, making it easy to
control their activities. Requiring scientists in specific fields to withhold basic
research information until approval is received from some authority, they say, could
seriously constrain scientific inquiry and scientific publication. They fear that rules
to withhold information could be especially insidious, because, as expressed by a
New York Times writer, “...the same tools, information, and experiments that would
be used to develop weapons are used to make drugs as well.” He gave an example,
Some scientists are worried that the complete genome sequences of dozens of
pathogens including the smallpox virus, are publicly available, giving weapon
designers potential clues for ways to make pathogens worse. But the same
129National Academies’ Report on Post-September 11 Scientific Openness at Universities.
130Hazardous Substances: Agency Considers New Ways to Make Data on Internet Site
Available to Public,” Daily Report for Executives, Feb. 22, 2002.
131National Pipeline Mapping System, [http://www.npms.rspa.dot.gov/data/npms_data
132BTS Data, [http://www.npms.rspa.dot.gov/data/bts_data.htm].
information can also be used to help develop treatments or to use genetic133
fingerprinting to help trace the source of an attack.
Some professional groups are responding to the information access issue. The
Federation of American Scientists, which started a project 10 years ago to open up
access to more governmental data, “decided after September 11 to remove from its
website information about United States intelligence and nuclear weapons sites.”134
The National Academy of Sciences, in cooperation with the American Society for
Microbiology, the FASEB, and others are beginning studies to support design of rules135
for scientists aimed at deterring terrorism.
Removal of Information from Agency Websites
Since September 11, 2001, the Government has imposed increasingly rigorous
controls on access to scientific and technical information that could be of potential
value to terrorists. As already noted, initially agencies engaged in selective removal
of information from agency websites. During March 2002, the executive branch
issued formal requirements for agencies to withdraw sensitive information from
websites and, in the future, to withhold government information characterized as
“sensitive but unclassified.”
Policies for Removal of Sensitive Scientific and Technical
Information From Websites. Initially some agencies shut down or withdrew
from their websites information they said could raise security concerns or could be
useful to potential terrorists. There is no government inventory of sites that have
been closed or materials withdrawn since September 11. Reportedly, the Commerce136
Department withdrew almost 7,000 documents. The OMB Watch has posted a
growing list of removed material, that is periodically updated, but it is not137
The National Infrastructure Protection Center (NIPC), a joint
government/private sector organization responsible for threat assessment, warnings,
and response relating to attacks against critical infrastructure, located at the FBI
headquarters, issued a warning on January 17, 2002 to advise users that any
information posted on the Internet could reach an “unintended” audience and pose
a security hazard. It offered seven anti-terrorism related factors that administrators
should consider when weighing the potential hazards and benefits of posting
information related to critical infrastructures. The seven points are:
133Pollack, Nov. 27, 2001.
134David E. Rosenbaum, “Breaking Law or Principles to Give Information to U.S.,” New
York Times, Nov. 23, 2001.
135Pollack, Nov. 27, 2001; Conversation with National Research Council staff member,
Anne-Marie Mazza, Mar. 2002..
136William J. Broad, “U.S. Is Tightening Rules on Keeping Scientific Secrets,” New York
Times, Feb. 17, 200-2, pp. 1, 19.
137OMB Watch, “The Post-September 11 Environment: Access to Government Information.”
Are there alternative means of delivering sensitive security information to the
5. Could this information be dangerous if it were used in conjunction with other
publicly available data?
official site might nevertheless remain publicly available elsewhere.
Many experts have applauded these moves as an effective way to withhold
sensitive information about vulnerabilities in infrastructure or about science and
technology information that could be used to make weapons. But some question
whether legitimate scientists and the public will be able to gain access to information
they need to conduct R&D or to participate in public processes relating to regulation,
industrial pollution or environmental action – processes that remain open to public
scrutiny. Furthermore, some say that much of the removed information is still
available in cached Internet sites. In most cases when an agency removed data from
its website it “posted notices that the information had been removed because of its139
possible usefulness to terrorists.”
Illustrations of Information That Was Removed. Among the agencies
removing restricting information were the Environmental Protection Agency, the
Department of Energy and related agencies, and other agencies.
Environmental Protection Agency. In March 2002, the Environmental
Protection Agency (EPA) decided to restrict access to its “Envirofacts” database
website. Previously, researchers and the public were able to download manipulable
databases that contain information on multiple sites for chemical releases, toxic
waste, and so forth. Now researchers will be able to access data only on one facility
at a time. Multiple site data are available only to “EPA employees, EPA contractors,
the military, federal government, and state agency employees,” according to EPA.
A researcher at the University of Michigan’s School of Natural Resources and
Environment, said “this will ‘basically make our research impossible’....”140
Apparently EPA is attempting to find alternatives to meet their needs and to help
researchers find alternative access.
The EPA National Exposure Research laboratory website was closed pending
a review of its contents. The site, which is used by toxicologists and the public,
138NIPC, “Internet Content Advisory: Considering the Unintended Audience,” Jan. 17, 2002,
Advisory 02-001 [http://www.nipc.gov/warnings/advisories/2002/02-001.htm].
139“Freedom of Information Act,” in Homefront Confidential, March 2002, p. 25. For
additional information, see Reporters Committee for Freedom of the Press, “Freedom on
Information,” Homefront Confidential. How the War on Terrorism Affects Access to
Information and the Public’s Right to Know, RCFP White Paper, March 2002, pp. 21-27.
140Meredith Preston, “Researcher Says Work May Be Impeded By Restrictions on
Environmental Database,” Daily Report for Executives, Mar. 28, 2002.
includes information about chemical facilities and the risks posed to people and the
environment by spills from chemical plants. (EPA is required to provide public
access to information about environmental releases of chemicals under The
Emergency Planning and Community Right-to-Know Act (EPCRA, codified at 42
U.S.C. 11001-11050), enacted in 1986 as Title III of the Superfund Amendments and
Reauthorization Act (P.L. 99-499).141 Access to such data has long been
controversial. Proponents of open access contend it is necessary for emergency
planning (such as for firefighters to evaluate risks) and for pollution control
monitoring. Objectors cite the costs of providing the data, suggest that it could serve
terrorists, and fear that the information could unduly frighten residents who live near
chemical facilities. The chemical industry has also sought to limit some of this
information. It has been reported that “[T]he American Chemistry Council, the trade
association for chemical manufacturers, and other trade associations, such as the
American Water Works Association, have lobbied for years to limit or shut down
public access to information about hazardous chemicals being used in the
community, including through public reading rooms –and now justify removal with
the threat of terrorism.”142 In addition, representatives of the chemical industry
reportedly asked EPA temporarily, pending review, to curtail public access to “50
off-site reading rooms for access to computerized information describing worst-case
scenarios in possible accidents at chemical plants.”143
Department of Energy and Related Agencies. The Department of
Energy (DOE) removed sensitive maps and descriptions of ten governmental nuclear
facilities with weapons-grade plutonium and highly-enriched uranium after it was
alerted to the public’s ability to access these sites by the Project on Government
Oversight (POGO), which traditionally objects to governmental restrictions on144
government information. Reportedly, much of this information is still available
online from other sources.145 The Nuclear Regulatory Commission shut down its
website after the September 11 attacks, and, when it reopened, did not include
formerly posted information about Nuclear Reactors, Operating Reactors, Generic
Environmental Impact Statements for License Renewal of Nuclear Plants, Nuclear
Materials, and Radioactive Waste146
141For additional information see, “Emergency Planning and Community Right-to-Know
act,” by Linda Schierow, in Environmental Laws: Summaries of Statutes administered by
the Environmental Protection Agency, coordinated by Martin R. Lee, Jan. 4, 2001, pp. 80-
142“Right-to Know Public Access to Government Information,” OMB Watch, Feb. 19, 2002.
143Meredith Preston, “Chemical Industry Urges Restriction on Access to Worst-Case
Scenario Data,” Daily Report for Executives, Oct. 9, 2001, p. A-25.
144“POGO Supports the DOE’s Removal of Sensitiva Documents From Its Website,” Project
on Government Oversight, Press Release, Nov. 8, 2001, [http://www.pogo.org/nuclear/
145Joshua Dean, “Energy Pulls Sensitive Nuclear Information From the Web,” GovExec.com,
Nov. 12, 2001.
After the fall 2001 terrorist attacks, the Federal Energy Regulatory Commission
(FERC), part of the Department of Energy, issued a policy statement “removing from
easy public access previously public documents that detail the specifications of
energy facilities licensed or certificated by the Commission.” On January 16, 2002,
FERC published in the Federal Register a notice that it was soliciting information
from the public to “assist the Commission in determining what changes, if any,
should be made to its regulations to restrict unfettered general public access to critical
energy infrastructure information, but still permit those with a need for the
information to obtain it in an efficient manner.” Comments were due by March 1,
It was announced on December 16, 2001, that the Defense Nuclear Facilities
Safety Board (DNFSB), an independent U.S. Government agency charged with
oversight of U.S. Department of Energy nuclear safety issues, halted all public access
to technical documents it had obtained from the DOE. The DNFSB also stopped
providing printouts of documents in its possession.148
Other Agencies. The National Imagery and Mapping Agency (NIMA), which
removed maps from its own website, reportedly directed the U.S. Geological Survey
and the Federal Aviation Administration (FAA) to halt sales of all NIMA-made
topographic maps, and ordered the Library of Congress and the National Archives
and Records Administration to deny public access to such maps.149 In addition, the
Superintendent of Documents requested in October 2001 that federal depository
libraries (reportedly 335 mostly academic libraries)150 to withdraw from public
circulation, and destroy, their depository copies of a U.S. Geological Survey CD-
ROM151 providing information about large public water resources because it
contained sensitive information. Technically depository documents are the property
of the U.S. government. The U.S. Government Printing Office (GPO) reported that152
this was the only CD-ROM that it asked depository libraries to remove.
147Federal Register, Jan. 23, 2002, p. 3129-3135.
148“Public Faces Further, Unexplained Restriction in Access to Information - Defense
Nuclear Facilities Safety Board Instructed to Slap Lid on DOE Documents,” Dec. 16, 2001,
Released by the Federation of American Scientists at [http://www.fas.org/sgp/news/2001/
149[http://WWW.GOV exec.com/ dailyfed/0901/092501p1.htm] .
150Alex P. Kellogg, “An Order to Destroy a CD-ROM Raises Concerns among University
Librarians,” Chronicle of Higher Education, Feb. 14, 2002.
151Entitled “Source-Area Characteristics of Large Public Surface Water Supplies in the
conterminous United States: An Information Resource for Source-Water Assessment, 1999,”
according to Kellogg, Feb. 14, 2002.
152“Statement on Request to Withdraw USGS Source-Water CD-ROM From Depository
Libraries,” U.S. GPO News Release 02-04, Jan. 16, 2002.
Reportedly, the Centers for Disease Control and Prevention (CDC) withdrew
a report on lack of preparedness against a terrorist attack using poison gas or other
The U.S. government also has taken steps to limit access to satellite data which
could prove to be a security threat or advantageous to terrorists. For instance, the
New York Times reported that the government bought exclusive rights to images of
Afghanistan and parts of surrounding nations that are taken by Ikonos, a US.
commercial imaging satellite. The newspaper wrote, “The National Imagery and
Mapping Agency said it paid $1.91 million for the first 30 days of the contract, which
went into effect on Oct. 7, the day U.S.-led air strikes began. It gives the U.S.
military ‘assured access’ to images collected by the company’s IKONOS satellite.”
While the imagery reportedly has helped the military plan air strikes,154 some say that
the government’s main motivation “... is to prevent images of civilian targets hit
during bombing raids reaching the media.”155 The U.S. government apparently has
the authority also has the ability to restrict access to commercial satellite images
through the courts in times of war.156
Classification of Scientific and Technical Information
Introduction to the Issue. Most basic and academic scientific research
supported by the government has not been classified. (This topic is discussed in
more detail in the next section.) But, reportedly, OSTP director John Marburger and
other officials “have suggested that homeland security may require academic
scientists to withhold the fruits of some research, such as the genetic sequences of
potential bioweapons or the recipes for toxic chemicals.”157 This is a controversial
issue since some researchers may be forced to accept classified research to obtain
funds.158 Some universities are reviewing their decisions not to allow classified
research activities on campus. Consideration is being given to allow agencies to
reclassify already released materials and to permit some agencies, such as the
National Institutes of Health, that formerly did not classify information, to do so. In
addition, the White House has issued a government-wide policy to restrict release of
“sensitive but unclassified” information. “Sensitive” is not defined.
Actions Taken Regarding Classification and Reclassification. While
national security agencies still have wide powers to classify information, because of
steps taken by President Bill Clinton to open access to formally classified159
materials, the trend had been toward less classification and secrecy in recent years.
This trend may be changing. The Bush Administration is seeking to halt the
153“Intelligence Data Pulled From Websites,” BBC News website, Oct. 5, 2001.
154U.S. in Talks to Keeps Rights to Satellite Images,” New York Times, Oct. 30, 2001.
155James Randerson, New Scientist Online News, Oct. 17, 2001.
156Randerson, op. cit.
157Check, Feb. 21, 2002, Aftergood, Feb. 28, 2002
158Check, Feb. 21, 2002, Aftergood, Feb. 28, 2002.
159Executive Order 12958, “Classified National Security Information.”
distribution and sale of government documents that explain how to develop
biological weapons that were declassified and are available from agencies for sale or
via FOIA requests. Such documents were written from 1943 to 1969 when the
United States researched, developed, and built a stockpile of biological weapons.
Reportedly, the Administration has closed public access to over 6,600 technical
government reports dealing with biological and chemical weapons production.160
On December 12, 2001, President Bush granted the Secretary of the Department
of of Health and Human Services, which traditionally does not classify information,
power to classify information as secret.161 According to an agency spokesperson, the
documents to be classified include those relating to bioterrorism and the nation’s
preparedness to respond to it. “Officials said the kind of information that might be
classified would be storage sites for vaccine stockpiles, certain laboratory floor plans
or some details about emergency medical stocks.”162 In response, an official with the
American Society for Microbiology (ASM), reported that “...that the society is
concerned about the implementation of an order signed last October by President
Bush allowing the health department — including the NIH — to fund classified
Reclassification of already released information is also an important issue.
Previous administrations had from time to time reclassified information, but each had
a different policy. Until March of 2002, reclassification of already released, formerly
classified information was permitted only if the information had not been officially
released to the public.164 Several executive office groups examined the pros and cons
160William J. Broad, “U.S. Tightening Rules on Keeping Scientific Secrets,: New York
Times, Feb. 17, 2002.
161Alison Mitchell, “A Nation Challenged: Classified Information; Bush Gives Secrecy
Power to Public Health Secretary,” New York Times, Dec. 20, 2001.
162 Mitchell, op. cit.
163Erika Check, “Biologists Apprehensive Over US Moves to Censor Information Flow,”
Nature, Feb. 21, 2002.
164“The question of whether documents, once declassified, can be or should be reclassified
has been asked on a number of occasions over the years, and then answered in different
ways. Nuclear weapons information, once declassified, cannot be reclassified, according to
the Department of Energy’s interpretation of Section 142 of the Atomic Energy Act of 1954
(42 U.S.C. 2162). (DOE officials sometimes finagle this restriction by withholding the
declassified information as Unclassified Controlled Nuclear Information.) Under President
Reagan, officials were permitted to reclassify declassified information and documents under
certain conditions. This authority was exercised on numerous occasions, but these do not
seem to have been publicly reported. See Section 1.6(c) and (d) of President Reagan’s
Executive Order 12356: [http://www.fas.org/irp/offdocs/eo12356.htm#reclass]. President
Clinton permitted reclassification of declassified information only if it had not been
officially released to the public. Once it was officially released it could not then be
reclassified. See Section 1.8(c) and (d) of President Clinton’s Executive Order 12958, which
remains in effect today: [http://www.fas.org/sgp/clinton/eo12958.html#reclass]. A review
of this executive order is now underway by the Bush Administration and may include
consideration of expanded authority to reclassify declassified information.” (“Reclassifying
of reclassification. The Office of Science and Technology Policy (OSTP) examined
whether an executive order should be issued permitting reclassification or whether
distribution could or should be halted even with FOIA requests for this
information.165 Reportedly, the Defense Technical Information Center (DTIC) “said
panels of scientific experts would be assembled to see whether the [aforementioned
bioweapons] documents should once again be made available to the public or perhaps
reclassified as state secrets.”166 The National Academy of Sciences started to develop
panels to deal with these issues.167 The Federation of American Scientists (FAS)
urged that “any such reclassification authority be narrowly circumscribed and that
agency proposals for reclassification actions be subject to independent approval or
rejection by the Interagency Security Classification Appeals Panel.”168
On March 18, 2002, White House Chief of Staff Andrew H. Card, Jr., issued a
memorandum for the heads of Executive Departments and Agencies to not “disclose
inappropriately” government information regardless of age relating to weapons of
mass destruction, defined to include chemical, biological, radiological, and nuclear
weapons “as well as other information that could be misused to harm the security of
our Nation and the safety of our people.”169 Agencies were given guidance, prepared
by the Department of Justice, to identify appropriate documents and records, and
were asked to report within 90 days to the President’s Chief of Staff and the Office
of Homeland Security on actions taken.170 The guidance issued on March 18 also
called for reclassification of formerly classified sensitive information. It also stated
“The need to protect such sensitive information [“related to America’s homeland
security”] from inappropriate disclosure should be carefully considered, on a case-by-
case basis, together with the benefits that result from the open and efficient exchange
of scientific, technical, and like information.”171 “Sensitive” was not defined. The
memo also applies to information that would be released via FOIA requests. Some
observers believe this could lead to removal of considerably more documents from
Declassified Documents,” Secrecy News from the FAS Project on Government Secrecy, Jan.
165 William J. Broad, “U.S. Is Still Selling Reports on Making Biological Weapons,” New
York Times, Jan 13, 2002.
166Broad, Feb. 17, 2002.
167Broad, Feb. 17, 2002.
168“Reclassifying Declassified Documents,” op. cit.
169Memorandum entitled “Action to Safeguard Information Regarding Weapons of Mass
Destruction and Other Sensitive Documents Related to Homeland Security,” Mar. 19, 2002.
170Information Security Oversight Office, National Archives and Records Administration,
and Department of Justice, “Memorandum “Safeguarding Information Regarding Weapons
of Mass Destruction and Other Sensitive Records Related to Homeland Security,” Mar. 19,
171Information Security Oversight Office, National Archives and Records Administration,
and Department of Justice, “Memorandum “Safeguarding Information Regarding Weapons
of Mass Destruction and Other Sensitive Records Related to Homeland Security,” Mar. 19,
agency websites and has led to concerns among advocates for open government about
the “sensitive but unclassified information” category172 and among scientists, even
though the memo called for balance in safeguarding scientific and technical
Similar kinds of security measures are being taken in Great Britain. For
example, some British researchers are complaining that new export control laws
under consideration in the United Kingdom that would prohibit the export of
information, “will in theory allow government vetting of scientific material before
publication.”174 The bill would “authorize government scrutiny of the ‘intangibles’
researchers might be transferring, through publishing or teaching, to foreign powers”
and it “would govern internal communications, “meaning any scientists submitting
research for publication in a British journal would be subjected to the controls.”175
Apparently, many British researchers seek to modify the legislation to exclude basic
Some Universities Are Considering Allowing Classified Research
to Be Conducted On-campus. Most research universities have prohibited the
conduct of classified research on campus as detrimental to teaching and scholarship,
and permit such research to be conducted only in affiliated off-campus fenced
research laboratories which typically are off-limits to foreign students and
researchers.176 Sometimes universities allow on-campus researchers supported by
industrial firms and contracts to restrict publication of research results until after
release by the industrial sponsor. Apparently some university officials, for instance
at the Massachusetts Institute of Technology, Stanford University, the State
University of New York, and other schools, have started to review policies toward177
classification in the interest of better serving the nation’s anti-terrorist efforts.
Federal policy regarding classified university research seems imprecise.
Traditionally, federally-funded research by extramural and many intramural178
performers, even in the defense area, has not been classified. Nevertheless, it has
been reported that some researchers feel the pressure of subtle government moves to
control research results even in the absence of classification rules. “The Pentagon
172“Government Puts New Controls on Public Access to Weapons Info.,” The Mercury
News, Mar. 21, 2002.
173Bill Sammon, “Web Sites Told to Delete Data,” The Washington Times, Mar. 21, 2002.
174Check, Feb. 21. 2002. See also Kate Galbraith, “British Scientists Fear That ‘Export
Control Bill’ Could Strangle Research,” Chronicle of Higher Education, Feb. 20, 2002.
175John T. Softcheck, “U.K. Scientists Fear ‘Academic Censorship’ Provisions in Export
Control Bill,” Washington Fax, Feb. 22, 2002.
176Steven Aftergood, “Controversy Over Classified Research on Campus,” Secrecy News,
Feb. 28, 2002.
177Aftergood, Feb. 28, 2002. See also: “New Committee to Look At Institute Policies on
Scientific Information Access, Disclosure,” MIT Tech Talk, Feb. 13, 2002.
178Discussed in Report of the Defense Science Board Task Force on Secrecy, July 1970, as
described in Aftergood, Feb, 18, 2002.
currently imposes no limits on basic research that it funds and seeks review only of
applied science projects. But ‘it’s a policy with nuance,’ says...an administrator at
Johns Hopkins University’s applied Physics Laboratory.... ‘As a practical matter,
some investigators are urged by [military] sponsors to delay or withhold basic
research results, ...[and] universities are kidding themselves if they think all faculty
will adhere to an academic policy that is not in their best interests.”179
Expanding Exemptions To the Freedom of Information Act
The Freedom of Information Act (5 U.S.C. 552), enacted in 1966 and
subsequently amended, establishes for any person – corporate or individual,
regardless of nationality – presumptive access to existing, unpublished agency
records on any topic. The law specifies nine categories of information that may be
exempted permissibly from the rule of disclosure. Certain kinds of proprietary or
trade information are protected from disclosure. However, the existing “exemptions
do not require agencies to withhold information, but merely permit access
restriction.”180 Disputes over the accessibility of requested records may be settled in
federal court. Fees for search, review, or copying of materials may be imposed; also,
for some types of requesters, fees may be reduced or waived. The act was amended
in 1996 to provide for public access to information in an electronic form or format.181
Arguments have been made that to enhance counter terrorism, the exemptions
to disclosure under FOIA should be extended to include certain information about
infrastructures and research and development. It has been argued that in order to
protect certain infrastructures against terrorists, private companies would have to
divulge certain information to the government, and that unless this information were
exempt from disclosure under FOIA, the private sector would not cooperate in
providing information about certain infrastructures and their potential vulnerabilities
(power plants, chemical plants, and so forth). Richard Clarke, the President’s
computer security adviser and chair of the President’s Critical Infrastructure
Protection Board set up under the Office of Homeland Security, addressed this topic
in relation to information technology infrastructure. He suggested to attendees at the
Business Software Alliance’s Global Tech Summit that, “Congress could encourage
the private sector to cooperate with the government by exempting necessary
disclosures from the Freedom of Information Act, so that information about security
weaknesses would not get into the public’s hands.”182
179David Malakoff, “Universities Review Policies for Onsite Classified Research,” Science,
Feb. 22, 2002.
180The Administration and Operation of the Freedom of Information Act: An Overview,
181Access to Government Information in the United States, by Harold C. Relyea, CRS Report
182Anandashankar Mazumdar, “Computer Security: Administration Point Man on
Cybersecurity Says Private Sector Aid Essential to Security,” Daily Report for Executives,
Dec. 5, 2001, p. A-15.
Several legislative proposals relating to research and development for counter
terrorism would exempt certain R&D-related information from disclosure under the
Freedom of Information Act. S. 1456, the “Critical Infrastructure Information
Security Act of 2001,” would provide exemptions from disclosure under FOIA for
information related to industrial cybersecurity and critical infrastructure “that is
voluntarily submitted to specified Federal agencies for analysis, warning,
interdependency study, recovery, reconstitution, or other informational purpose....”
H.R. 2435, the “Cyber Security Information Act” provides that (with exceptions)
“any information voluntarily provided directly to the government about a firm’s
cyber security, a third party’s cyber security, or to an Information Sharing
Organization which is subsequently provided to the Government in identifiable form
shall: (1) be exempt from disclosure under the Freedom of Information Act; (2) not
be disclosed to any third party; and (3) not be used by any Federal or state entity or
by any third party in any civil action.”
As noted above, two similar bills on bioterrorism – S. 1765, passed in the
Senate (as a substitute amendment for H.R. 3448), and H.R. 3448, passed in the
House – would exempt from disclosure under FOIA information about the locations
and quantities of certain biological agents and toxins held by laboratories, including
private sector laboratories. Certain kinds of biological information would be
protected from disclosure under FOIA in H.R. 3160, the Bioterrorism Prevention Act
The executive branch has also taken action regarding access to information
under FOIA. First, on October 12, 2001, Attorney General John Ashcroft issued a
memorandum to federal agencies urging them to exercise caution in disclosing
information requested under FOIA in order to help protect the nation against
terrorism. OMB Watch writers concluded that “the new message from the Attorney
General to the agencies is to, where possible, withhold the information from
disclosure. This is a fundamental reversal of past policies that emphasized, where
possible, to disclose the information.”183 Specifically,
The memo affirms the Justice Department’s commitment to “full compliance
with the Freedom of Information Act,” but then immediately states it is “equally
committed to protecting other fundamental values that are held by our society.
Among them are safeguarding our national security, enhancing the effectiveness
of our law enforcement agencies, protecting sensitive business information and,
not least, preserving personal privacy.”
This new policy supersedes a 1993 memorandum from then-Attorney General
Janet Reno that promoted disclosure of government information under FOIA
unless it was “reasonably foreseeable that disclosure would be harmful.” This
standard of “foreseeable harm” is dropped in the Ashcroft memo. Instead,
Ashcroft advises, “When you carefully consider FOIA requests and decide to
withhold records, in whole or in part, you can be assured that the Department of
183“Right-to-Know: Public Access to Government Information,” OMB Watch, 2/19/02.
Justice will defend your decisions unless they lack a sound legal basis...”184
Second, as noted already, the Card memorandum of March 18, 2002, which says
it specifically applies to information requested to be released under FOIA, requests
that agencies not “disclose inappropriately” government information regardless of
age relating to weapons of mass destruction defined to include chemical, biological,
radiological, and nuclear weapons “as well as other information that could be
misused to harm the security of our Nation and the safety of our people.”
Self-policing, withdrawing already released scientific and technical information,
or classifying certain information are intended to prevent potential terrorists from
gaining access to detailed scientific and technical data which could be used to harm
the United States, or information on infrastructure sites and their vulnerabilities to
attack. Reaching a balance between openness and secrecy in access to scientific and
technical information remains a contentious issue.
One major argument made against restricting access to scientific and technical
information is that it “could make it impossible for scientists to assess and replicate
the work of their colleagues, eroding the foundations of American science. ...[Some
scientists]...fear that government officials eager for the protections of secrecy will
overlook how open research on dangerous substances can produce a wealth of cures,
disease antidotes and surprise discoveries.”185 Robert R. Rich, President of the
Federation of American Societies for Experimental Biology, expressed his judgment:
“ ‘I think the risk of forgone advances is much greater than the information getting
into the wrong hands,’ ”186 he added. “ ‘There is very little that comes out of
university labs that could conceivably be considered sensitive,’ he said. “So to set up
any kind of blanket policy that would require general pre-review of scientific
publications would be extraordinarily cost-ineffective and would stifle the
communication of important research findings.’ “187
Some critics believe that withholding scientific and technical information will
not deter terrorists. They say that a lot of the withdrawn materials are still available
to the public via cached sites on Internet search engines188 or in hard copy at
depository libraries. Others argue that the prevention of terrorism requires openness
in scientific information in order to foster a reciprocal worldwide response. For
instance, some arms control advocates object to these provisions. “ ‘Instead of
promoting secrecy on biological weapons research, to restore international
confidence in biological weapons control, the US should be moving in the opposite
184For additional information, see Reporters Committee for Freedom of the Press, “Freedom
on Information,” Homefront Confidential. How the War on Terrorism Affects Access to
Information and the Public’s Right to Know, RCFP White Paper, March 2002, pp. 21-27.
185Broad, Feb. 17, 2002.
186Broad, Feb. 17, 2002.
187Broad, Feb. 17, 2002.
188“U.S. Websites Closed in Anti-Terrorist Bid,” Nature, News in Brief, Oct. 11, 2001.
direction to promote high transparency,’ declared the Sunshine Project, a watchdog
Some are concerned that national security will be used as a pretext to keep
information from the public, and that public access will be curtailed to important
information needed to critique regulations, provide for public discussion, and so
forth.190 For instance, specific objections have been raised by critics at a public group
called the Nuclear Control Institute. Regarding the withdrawal of information from
the Defense Nuclear Facilities Safety Board website, they said, “Slamming this
window shut under the guise of national security could well prove to be a disservice
to those working in the public interest on [Department of Energy] DOE issues. DOE
should take immediate action to clarify release of technical documents in the hands
of the DNSFB and pledge only to withhold information which could clearly benefit
someone with malevolent intent.”191 With respect to the bills that would exempt
from FOIA cybersecurity and critical infrastructure information, it has been reported
that, “Groups that advocate open records, environmentalists, and others allege that
...[some proposed...] legislation ‘would profoundly undermine the ability of the
Environmental Protection Agency to sue polluters.’ ”192 For example, the Children’s
Environmental Health Network (CEHN) and other groups opposed the EPA’s
decision to remove information from its website regarding chemical industries’
emergency response plans. They argued that well-trained terrorists would get the
withheld information anyway, and that there should be “public discussions held on
the public’s right to know and if limits should be placed on that information.” In a
letter sent to the White House and the Department of Justice, the coalition said that
the public needs information on hazardous conditions to make informed choices and
decisions and to enable health practitioners to treat environmental exposures and to
ensure that industries implement appropriate safety measures. 193
Agencies are required to report to the Office of Homeland Security and the
White House over the next three months about steps they have taken to safeguard
“sensitive” information released in the past and plans for the future, and some
agencies have been given new classification authority. Some agencies are developing
guidelines for “tiering” or categorizing certain kinds of information to allow for
restricted access to those with a need for the information, including researchers in
some cases. The National Academy of Sciences is working with professional
189See the Project's “Seven Good Reasons to Stand Up for Information Freedom on
Bioweapons Research,” [http://www.sunshine-project.org/publications/pr301001.html],
cited in Secrecy News, from the FAS Project on Government Secrecy, Nov. 28, 2001.
190See “Benefits of Chemical Information Should Not be Forgotten,” OMB Watch,
[http://www.ombwatch.org/ execreport/remp.html ].
191“Public Faces Further, Unexplained Restriction in Access to Information - Defense
Nuclear Facilities Safety Board Instructed to Slap Lid on DOE Documents,” Dec. 16, 2001
[ ht t p: / / www.f a s.or g/ sgp/ news/ 2001/ 12/ cl ement s .ht ml ] .
192Drew Clark, “Environmental Groups Protect Cybersecurity Information Sharing Bill,”
Gov.Exec. com, Dec. 3, 2001.
193“Hazardous Substances Coalition Says Response to Terrorism Should Not Limit Access
to Information,” Daily Report for Executives, Nov. 8, 2001, p. A-46.
associations to examine self-policing by scientists themselves. The public and
members of the scientific community may examine these activities and try to
influence the development of rules that they believe balance securing the nation
against terrorism and providing for their particular requirements.
Since the September 11th attacks, the U.S. Government has taken action to
tighten exports of sensitive technologies to potential terrorists. On December 10,
2001, the U.S. Customs Commissioner announced the launch of “Operation Shield
America,” which seeks to increase the list of items on existing State Department and
Commerce Department export control lists that might be of potential interest to
international terrorist organizations, that would be subject to surveillance, and could
not be exported freely. The activity also involves providing U.S. companies with
instructions about how to spot suspicious buyers. “Customs has already taken key
steps under this initiative. The Customs Intelligence Division has compiled a list of
key technologies and weapons likely to be of interest to terrorist groups [and]... has
shared this list with the intelligence community and with the Departments of State,
Commerce, Defense, Energy, Treasury, and Justice. Customs is soliciting feedback
from each in order to reach an accord on the items that should be the focus of Shield
America.” The list remains secret. The program is being implemented by federal
agents canvassing U.S. manufactures of the items on the list “to educate about the
program and encourage them to turn over names and information on any suspicious
customers.”194According to the Customs Service, “While some of these materials
may seem relatively innocuous and have relatively little monetary value, they can
have enormous strategic value in the hands of America’s adversaries. These ‘minor’
technological goods could easily become the necessary component for major
weapons development by terrorist groups or rogue nations.” Continuing, Customs
In one particular case, for example, Customs investigated the export of a
chemical called thiodiglycol. This chemical has civilian applications in the
production of dyes and inks. However, thiodiglycol is also a key precursor in the
production of mustard gas. The Customs investigation dismantled networks that
were buying hundreds of tons of this material from a Baltimore firm and
providing the chemical to Iran for use in mustard gas.
Several Customs investigations have disclosed illicit exports of high-speed
timing devices known as “krytrons.” While these devices have broad civilian
applications in photocopiers and lasers, krytrons are also ideal for use in
triggering nuclear warheads. In one noteworthy case, Customs intercepted 40
krytrons destined for an Iraqi military establishment after being purchased from
a California firm.
194Brock N. Meeks, “Terrorism ‘Shopping List’ Targeted,” MSNBC, Dec. 10, 2002. See
also, “U.S. Customs’ “Operation Shield America,” Expeditors Newsflash, Dec. 12, 2002,
Because U.S. technology, munitions, and other equipment are among the highest
quality in the world, foreign nations and others continuously target them for
acquisition. According to a Sept. 2001 report by the Defense Security Service
(DSS), individuals linked to no fewer than 63 nations were involved in
“suspicious” efforts to obtain U.S. technology with military applications during
involved in efforts to acquire U.S. technology with military applications.
Under the program, Customs says it doesn’t want companies to investigate their
clients, but the Customs Service will send agents to visit firms that manufacture or
sell items on the list and ask companies to report suspicious behavior, such as “first-
time customers who ask to pay for larger orders in cash or offer more than the market
The major implication of these actions is the need to strike a balance between
security and the competitiveness of commerce in science and technology. While
controls on export of products that could be used to develop weapons against the
United States are necessary, the unintended consequences of this action could
jeopardize some U.S. foreign trade “because the list reportedly includes ‘just about
everything that you can imagine that relates to the production of any kind of weapon
of mass destruction, whether that’s a chemical weapon, a biological weapon, or197
nuclear weapon....’ ” One observer commented that it is possible that the regulation
could “stigmatize companies that directly or inadvertently sell to a terrorist since the198
program provides for voluntary compliance to “spot suspicious buyers.” Some
worry about confusion in the proliferation of export controls and “denied persons”
lists by various agencies and that “legitimate deals may be stonewalled while
exporters are shunted back and forth” among agencies that have jurisdiction to199
withhold export licenses. The government may need to monitor for effectiveness
and impacts, the actions taken to collaborate with industry and to control exports
Activities of Scientific and Technical Professional
Science and technology professional associations have organized groups and
planned studies on counter terrorism in an effort to assist the government but also to
position their members to monitor federal security actions and to track the
195U.S. Customs Service, “U.S. Customs Launches ‘Operation Shield America’ New
Initiative Seeks to Prevent Terrorist Organizations From Acquiring Sensitive U.S.
Technology, Weapons, and Equipment,” Press Release, Dec. 10, 2001.
196“Customs Dept. Deals With Technology,” AP OnLine, Dec. 10, 2001.
197Rossella Brevetti, “Customs, Bonner Unveils Plan to Stop Terrorists From Acquiring
Sensitive Technologies,” Daily Report for Executives, December 12, 2001, p. A-16.
198Brevetti, op. cit.
199“Export ABCs: Security and Forwarders,” Journal of Commerce Online, Jan. 28, 2002.
availability of R&D funding opportunities. A few illustrative activities are described
next. (See also CRS Report RL31202.)
The National Academies
The National Academies – the Academy of Science, the Academy of
Engineering, and the Institute of Medicine – are undertaking contract studies on
specific topics for federal agencies through their research arm, the National Research
Council. In addition the Academies established the Committee on the Science and
Technology Agenda for Countering Terrorism, co-chaired by Lewis Branscomb, a
Harvard professor, and Richard Klauser, former director of the National Cancer
Institute. The committee consists of 22 leading nongovernmental scientists and
technologists. Under Phase I of the project, the group will divide into panels in the
areas of biological; chemical; nuclear and radiological R&D; information technology,
computers, and telecommunications; transportation; energy facilities, buildings and
fixed infrastructure; and behavioral, social and institutional issues. The groups will
attempt to characterize the threat for each area, develop long-term research agendas
and examine cross-cutting multidisciplinary research topics for these “domains,” and
conduct short-term studies and provide advice.200 A research agenda for each of the
seven target areas is to be produced by May 2002. The second phase will be a report
that will focus on the organization of federal R&D agencies for counter terrorism.
This report is expected by September 2002.201 In addition, the National Academy
of Engineering is planning a study of “homeland defense against terrorism.”
The American Association or the Advancement of Science held a symposium
on December 18, 2001 on the topic of “The War on Terrorism: What Does It Mean202
for Science?” The speakers, who included the OSTP Director, the president of the
National Academy of Engineering, and several academic experts, focused on the
proposed restructuring of the federal government to respond to terrorism, the impact
of new security measures and terrorism initiatives on science, the impact of new visa
and surveillance rules on students at U.S. universities, the responsibilities of
scientists and engineers to contribute to national security and principles of conduct
that should guide scientists and engineering in their work on issues that pose
potentially high risk to human life.
200“Klauser Accepts Position as National Academies’ Adviser on Counter Terrorism,”
National Academies News, Dec. 19, 2001 and information about Project Number DEPS-L-
201Wil Lepkowski, “The Academies and the World,” Science and Policy Perspectives, Dec.
202Audio of the conference is available at: [http://www.aaas.org/spp/scifree/terrorism/].
The American Chemical Society, in cooperation with other professional
associations,203 through its Vulnerability and Security series, provides occasional
briefings to Members of Congress and staff from experts on science and technology-
related terrorism issues. Briefings have focused on nuclear infrastructure, chemical
site security, chemical and biological terrorism.
The American Society of Civil Engineers wrote to OHS Director Tom Ridge on
November 1, 2001, describing the society’s civilian engineering study teams on
disaster response procedure and a new Building Performance Study Team, created
to gather data on the damage to the World Trade Center buildings and the Pentagon.
It also described a study it was undertaking on critical infrastructure response and
offered its assistance in generating legislative initiatives.204
The American Psychological Association (APA), created a Subcommittee on
“Psychology’s Response to Terrorism” that is developing an inventory of what
psychologists can contribute to the efforts to address the threat as well as the impact
of terrorism.205 Among other things, it is assembling lists of psychologists who have
worked on issues such as malignant attitude formation, peace psychology, conflict
resolution, military psychology, and so forth and offering its services to the
government. It is also developing materials and posting on the APA website
materials dealing with the impact of terrorism, stress, and anxiety management
A broad gamut of counter terrorism security measures have been adopted and
proposed by the Congress, the President, and scientific and technical professional
groups for research and development and science and technology-related activities.
Public discussion may help in the development of such measures and might
encourage public acceptance of them. Policymakers and administrators need to be
cognizant of concerns about unintended consequences as they implement these
initiatives. This report has explored such areas, including actions and proposals
relating to foreign students; research laboratories; access to student records; research
with biological “select agents;” controlling access to information via restricted
websites; classification of scientific and technical information; application of the
Freedom of Information act; and export control. Several kinds of scientific and
203 American Association of Engineering Societies, American Chemical Society, American
Institute of Chemical Engineers, American Society of Civil Engineers, American Society
of Mechanical Engineers, Council for Chemical Research, IEEE-USA Society for Risk
Analysis, and Synthetic Organic Chemical Manufacturers Association. For additional
information see [www.chemistry.org/vulnerability.html].
204[ h t t p : / / www.asce.or g/ publ i c pol i c y/ f e dl et t e r s .cf m] .
205 Siri Carpenter, “Behavioral Science Gears Up to Combat Terrorism,” APA Monitor, Nov.
206[ h t t p : / / www.a p a .or g/ ps yc hne t / c ove r a ge .ht ml ] .
technical professional association activities that could contribute to enhancing
scientific and technical capability to deal with terrorism were identified.