Tag: Colleges

U.S. Government Pursues More Aggressive Action to Curb Espionage at Universities

The U.S. Governmental Accountability Office (GAO) thinks the FBI and other agencies are not doing enough to address the espionage threat on U.S. university campuses. It issued a report, “Enforcement Agencies Should Better Leverage Information to Target Efforts Involving U.S. Universities” on June 14, 2022, urging the FBI, the Department of Homeland Security, and the Department of Commerce to step up their outreach efforts to address the threat. Commerce, DHS, and FBI have all concurred with GAO’s recommendations. As a result, U.S. colleges and universities to face yet another organizational risk: an increase in campuses visits by export control and law enforcement agents.

The threat: U.S. export control laws consider the disclosure to non-U.S. persons of technology, software, or technical data to be exports, even if the disclosure occurs in the United States.

The overwhelming majority of non-U.S. persons studying and working at U.S. universities are not security risks and are valued members of their academic organizations. But U.S. intelligence agencies have long warned that foreign state actors actively acquire sensitive national security data and proprietary technology from U.S. universities.

A lot of the technology flow abroad from U.S. universities is perfectly legal, for two reasons: First, most university research, even in cutting-edge technology, is exempt from export controls under an exemption known as “fundamental research.” Second, even in cases where the fundamental research exemption does not apply, it takes time for the U.S. government agencies to add new items to the export control lists they enforce; namely the U.S. Munitions List, administered by the U.S. Department of State, Directorate of Defense Trade Controls; and the Commerce Control List, administered by the U.S. Department of Commerce, Bureau of Industry and Security.

But at the same time, either through inadvertence or outright espionage, unlawful transfers of technology to foreign nationals take place. A 2006 report by the U.S. Office of the National Counterintelligence Executive found that a significant quantity of export controlled U.S. technology is released to foreign nationals in the United States unlawfully each year.

Clash of values: One important issue for higher education in addressing trade controls compliance is cultural in nature. U.S. universities value open, collaborative environments which drive and accelerate innovation. For those institutions, the idea of cutting off information flows conflicts with those cultural norms. By contrast, U.S. export controls aim to protect U.S. national security by hindering the flow of sensitive information to potential adversaries.

GAO’s recommendations: The GAO report recommends that U.S. trade control agencies take more aggressive steps to curb foreign access to sensitive technologies at U.S. universities. The recommendations include steps to enhance risk assessment and ranking of universities by risk, and steps to increase agency cooperation in planning and conducting outreach visits to universities. As a direct result of this report, U.S. universities are going to receive more visits from U.S. government agents.

Practical takeaways:

  • Universities: Consider reevaluating your risk. The threat has evolved, and the U.S. government response is also evolving. A risk evaluation using modern tools such as a premortem can help you know where to dedicate resources to update your export control policies, procedures, and training. Any unlawful escape of technology or technical data are much more likely to be detected and punished under the new regime, in part based on the GAO report. Organizations have to evolve with the threat.
  • Students, faculty, and administrators: Consider how to jealously guard your academic freedom, but be wary of the national security risks of sensitive technology falling into the wrong hands.
  • Research sponsors: More and more U.S. university research is sponsored by U.S. companies and government agencies. Research sponsorship agreements play a major role in striving for both national security and academic goals of the U.S. university system. Sponsors need to be sensitive to how these agreements are drafted. Sponsors must be aware of the espionage threat to their technology. But imposing too many restrictions in the contract may undermine the applicability of the fundamental research exemption and hinder the success of the project.

Conclusion: In the face of organizational threats, institutions do best when they heed their values. In the realm of protecting sensitive technology, we must constantly evolve with the threat. But we must also continue to carefully balance national security considerations with our bedrock values of academic freedom and openness.

Article By J. Scott Maberry of Sheppard, Mullin, Richter & Hampton LLP

For more government and administrative legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

Back to School: Preparing for Campus Unrest

In the wake of the deadly Charlottesville protests, institutions of higher education are under heightened pressure to prepare their campuses for disruption and unrest.  Many colleges and universities have open campuses, enjoy historic visibility in their communities, and place a high value on free speech, expression, and the exchange of ideas, exposing them to unique challenges in planning for protests and civil disobedience.  As this academic year begins, it is critical that campus administrators equip themselves and their communities to manage and, when appropriate, to take affirmative steps to prevent campus unrest, whether initiated by student groups or third parties.

The proactive development of sound and well-thought out policies that balance the value of speech with the institution’s compelling interests in safety and preventing the disruption of campus operations is the foundation for successful management of these situations.  Now more than ever, it is important, even for institutions that have not experienced significant campus unrest in the past, to develop a model response to campus unrest and determine whether institutional policies permit and support this model.

Institutions should review their policies to determine (1) what procedures are in place for managing and monitoring student protests and demonstrations; and (2) how much authority they have to limit or condition access to their campus by third parties.  Thoughtfully drafted campus facilities use, protest, and demonstration policies can effectively set expectations and establish procedures for regulating picketing, protesting, and demonstrating on campus by students and third parties.  But they are not the only policies that demand attention, review, and coordination.  Other policies that may dictate how and to what extent an institution can control or limit civil disobedience on campus may include:

  • Campus trespass policies;

  • Policies that describe the purpose and use of campus;

  • Facilities use and event policies;

  • Academic freedom and other speech or expression policies;

  • Tabling, bulletin board, leafletting, or chalking policies;

  • Emergency response and other communications policies;

  • Student organization policies;

  • Policies that describe or limit the carrying and use of weapons on campus; and

  • Student codes of conduct.

In reviewing their policies, administrators should consider how they limit access to campus, including the rhetoric used to describe the institution’s values, which groups and individuals can reserve and use delineated spaces, and whether campus streets are publicly accessible or can be limited with regard to pedestrian and automobile traffic.  Institutions should ensure that their facilities use policies contain clear and publicized registration procedures requiring sufficient notice of all pertinent details of a proposed event.  Policies must also permit action to move or shut down an event in the event of an emergency, violation of policy, or disruptive conduct, and to undertake disciplinary and law enforcement action where appropriate.

Any number and configuration of campus constituencies can be affected by regulations on campus speech.  Administrators should be mindful of who their institutional policies are intended to target—students or third parties—and draft their policies to clearly cover only the intended targets.  Administrators should also be aware of unintentional targets, considering, for example, how the policies will apply when a student group brings a third party to campus or when the protesters are alumni.

Institutions should be wary of a one-size-fits-all approach.  While it can be instructive to review other schools’ policies, what works for a large, public institution will almost certainly not work for a small, private institution.  In particular, while public institutions must remain keenly aware of the First Amendment implications of limiting speech on campus, private institutions must be careful that their policies do not inadvertently grant students and third parties “rights” that they are not otherwise due and may be difficult for the institution to support.

Now is the time—even if your academic year has already begun—to examine, revise and coordinate implementation of pertinent policies so that administrators may smoothly, safely, and consistently address campus access, facilities use, and potential unrest as it may develop.

This post was written by  Beth Tyner Jones and Liz LeVan Riley and Rebecca C. Fleishman of  Womble Carlyle Sandridge & Rice, PLLC.
More analysis at the National Law Review.