Memorandum from Professor Ross Anderson
THE EXPORT
CONTROL ACT
AND SCIENTIFIC
RESEARCH
During the passage of the Export Control Act,
I organised the Royal Society, the Committee of Vice-Chancellors
and Principals (as it was then) and the AUT (as it then was) to
introduce Section 8 via an amendment in the Lords.
Our concern was that export controls on intangibles
would require many academics working with colleagues overseas
on science and technology to get export licenses. This would seriously
damage scientific research by limiting collaboration in many disciplines
to large, formal projects—excluding the flexible ad-hoc
collaborations that, thanks to modern communications, are an ever-larger
part of research. It is just not practical to call the DTI and
wait six months whenever I spark an interesting idea with a US
researcher at a conference or on an email discussion list and
want to follow it up; and if non-EU academic visitors require
export licenses then Britain's strong position in science will
be seriously damaged. The scope of the potential damage is also
much wider that one might think. The dual-use list consists of
all scientific topics of interest to the Pentagon; and it has
a very substantial overlap with the list of topics of interest
to academic researchers.
For these reasons, the House of Lords introduced
the Section 8 exemption for scientific research. However, this
was stopped up by subsequent regulation made in terms of EU regulations
(although the EU regulations in questions had been made at Britain's
instigation)—a breathtaking instance of a department cynically
circumventing the clearly expressed will of Parliament.
We have been unable to work out whether a number
of common examples of routine scientific collaboration breach
the regulations or not. The regulations appear to have been deliberately
made so complex as to frustrate any independent analysis or adjudication,
and to force enquirers into reliance on official interpretation.
(Indeed, where four years ago the texts of OGELs could be easily
found on the DTI website, now all I find from a quick web search
are brief introductory pages pointing the enquirer to contact
eco.help@dti.gsi.gov.uk)
On speaking with officials at the time of the
Act's passage through Parliament, we received embarrassed half-reassurances
that the regulations are not designed to target bona fide scientific
research; on speaking to one of the Government's supporters in
the Lords I was told "Look, you can't expect us to get the
boundary absolutely precise; just act reasonably, keep records,
and stop being so suspicious." Since then, there has been
no serious attempt to inform potentially affected "exporters"
such as academics and SMEs.
I have no doubt that thousands of UK academics
are conducting bona fide research with colleagues overseas that
could be held, should the Government ever care to go after them,
to be criminal. We pointed this out at the time, and the DTI was
not interested. Other lobbyists pointed out that large numbers
of small firms are probably breaking the law in blissful ignorance.
Software companies, for example, routinely incorporate cryptography
into products without being aware that they might have to register
for OGELs; so do private individuals and even students developing
or enhancing open-source products.
The Export Control Act is thus, as currently
administered, one of the most objectionable pieces of legislation
on the UK statute book. It criminalises thousands of people by
stealth, laying them open to jail should they ever annoy the Government,
The DTI has not had the courage to advertise this fact at all
widely. Thus the affected parties have not, in your words, "received
sufficient notice of any changes and adequate explanation of the
requirements in the orders", and the system of export controls
is far from being accountable and transparent.
I can only refer the committee to Lord Bingham's
recent speech on the rule of law in which he set out eight principles:
"The law must be accessible and intelligible; disputes must
be resolved by application of the law rather than exercise of
discretion; the law must apply equally to all; it must protect
fundamental human rights; disputes should be resolved without
prohibitive cost or inordinate delay; public officials must use
power reasonably and not exceed their powers; the system for resolving
differences must be fair. Finally, a state must comply with its
international law obligations."
It is unclear to me that our system of export
controls meets even one of these criteria. The official attitude
of "You are all criminals now, but don't worry—we won't
put you in jail unless you make us cross" might be expected
in North Korea, but should not exist here in Britain. Even if
no academics or small software developers have been prosecuted
up till now, that is still no excuse. Members of Parliament might
care to recall that although the Government quite rightly stopped
the prosecution of gay men who had sex between the ages of 16
and 21 once it came to office, it was still thought to be a good
idea to actually change the law so that such behaviour was no
longer an offence.
All I can say is that I did what I could—and
if anyone is ever prosecuted under the Export Control Act for
exporting an intangible good, I hope they win on appeal to Europe.
November 2006
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