U.S. Stance in Spy Case Sparks Concern in Academia

Concern about the government's aggressive legal stance in a Chinese espionage case is spreading from industry to academia, where some fear that the prosecution's position undermines a long-standing consensus about unfettered access to scientific research.

"This is just shocking," an attorney at Stanford University's Office of General Counsel, Rachel Claus, said.

The sharp reaction is to the Justice Department's arguments against a Chinese-born electrical engineer, Chi Mak, who is accused of conspiring to send data on submarine propulsion and other subjects to the Chinese government. Prosecutors have asserted that Mr. Mak cannot defend himself against the export control charges by arguing that the information was in the public domain.

"If you take their line of argument, you can't have Chinese students at a university studying and learning information in a textbook," a compliance officer at Stanford, Steve Eisner, said. He noted that giving information to a foreign national in America can be considered the equivalent of exporting that data abroad.

Universities have traditionally avoided most export control issues because of an exemption for "fundamental research." However, the prosecution in the Mak case claimed in court filings that an embargo imposed on China after the Tiananmen Square massacre in 1989 applies to publicly available information about defense-related technology like fighter aircraft and submarines. Since the exemption for university research is part of the overall public domain exception, the government's arguments roll fog into what was long considered a safe harbor for academics.

A professor emeritus at MIT, Eugene Skolnikoff, said it would be impractical to exclude students from China, Iran, and a variety of other embargoed countries from every class with a potential defense application. "I don't see how the hell they could enforce it," Mr. Skolnikoff said. "I think MIT would revolt. So would Harvard. So would some of the other research universities."

Ms. Claus said the prosecution's argument about the breadth of the China embargo had some basis in the State Department's rules known formally as the International Trafficking in Arms Regulations. "What they're doing is contemplated by the Itar. It's there in black and white," she said.

However, Ms. Claus noted that the State Department seemed to give the opposite advice to the University of Michigan in 2004. When that school inquired about whether it needed a license to allow certain foreign students to work on a specific government-funded program to prepare high-tech equipment for test flights in space, the department answered in the negative. "It's schizophrenic," Ms. Claus, who published a law review article last year arguing that the export rules are unconstitutionally vague, said.

The State Department had no immediate response to a request for an interview. A spokesman for prosecutors on the Mak case said there would be no comment while the trial is under way.

However, in a speech to a legal conference last week, the national counterintelligence executive, Joel Brenner, gave a sense of the government's view of the seriousness of the disclosures at issue.

"This compromise is not small potatoes. It shortens by years the technological advantage of the U.S. Navy. It degrades the Navy's deterrent capability in the Taiwan Strait. And it puts the lives of our sons and daughters in the Navy at risk," Mr. Brenner said, according to prepared remarks made available by his office. "From a purely fiscal point of view, it also means the Chinese are leveraging the American R&D budget — your tax dollars and mine — in support of their own war-fighting capability."

In 2005, the Commerce Department moved to tighten some rules governing access to export-controlled equipment at universities. Last year, after an outcry from researchers, the department dropped the proposed changes and set up an advisory panel to study the issue. Regardless of the regulations, "fundamental" university research may also have some special protection under an order issued by President Reagan in 1985 and reaffirmed early in President Bush's White House in 2001.

Mr. Eisner said some universities are already pushing certain sensitive work off campus in order to avoid setting up systems to deny Chinese and other foreign students access to some labs and offices.