Space-Based Fundamental Research and the ITAR: A Study in Vagueness, Overbreadth, and Prior Restraint

Abstract

Fundamental research is openly conducted science and engineering research carried out at institutions of higher education in the United States. Faculty, students, collaborators and other researchers in these institutions engage in the free, constant and lively exchange of ideas with their peers in the U.S. and abroad. Based on changes made by Congress in 1999, universities operating in the public domain and carrying out unclassified space-based research in various disciplines may find that they are not allowed to involved foreign students, faculty and collaborators in the research unless they obtain an export license from the State department. Based on ITAR treatment of associated equipment , related systems , and payloads , similar licensing issues emerge with regard to academic endeavors in aero- and astronautics, robotics, nanotechnology, mechanical and electrical engineering, optics, remote sensing devices, and computing and data acquisition systems. This paper explores ITAR\u27s minimally implemented National Security Decision Directive as it relates to spacecraft-related fundamental research as well as how the Directive imposes licensing restrictions on the dissemination of information, falling within the realm of protected speech. The author critiques ITAR policies and calls for openness in fundamental research as well as the participation of an international array of faculty, students and collaborators