Endnotes

1 The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

2 Agreements with private funders thus would not raise the same issues because courts will enforce the terms agreed to by the parties. There is no caselaw suggesting special legal requirements that private entities must follow with respect to the First Amendment. Our interviews with private sector firms were relevant to shed light on situations where private entities enter into subcontracts with universities, thus raising legal issues under the First Amendment.

3 The First Amendment applies to the states via the Fourteenth Amendment.

4 Over the course of this research, one of the three authors has had occasion to negotiate a DUA. Her experience is described herein.

5 48 C.F.R. Ch. 1.

6 500 U.S. 173, 178 (1991).

7 Id. at 193.

8 Id. at 200.

9 773 F. Supp. 472 (D.D.C. 1991). For government restrictions of speech to be constitutional, the restrictions must be narrowly tailored to a compelling government interest. The Stanford court held that the regulations promulgated by HHS were vague and overly broad, and thus an unconstitutional restraint on free speech. Id. at 447.

10 70 Fed. Reg. 38 (Jan. 3, 2005)

11 We do not comment on the propriety of applying such a clause in the context of publication of basic science research.

12 A unique entity is the Institute of Medicine. The IOM is a 501(c)(3) private entity with a Congressional charter to advise the government. It is exempt from the Federal Advisory Committee Act. Each President signs an Executive Order providing that the IOM does not compete for contracts. The majority of IOM support comes from federal agencies. Contracts between the IOM and federal agencies specify a statement of work, but the IOM maintains copyright and ownership rights to all information generated under the contracts. Draft reports are not provided to the sponsor for review. While the government agency may receive a courtesy copy of a report in advance of the public, the report is final and is released without sponsor input. Government sponsors are not permitted to speak at an IOM news conference.

13 Gielow J., A Troubling Equation in Contracts for Government Funded Scientific Research: ‘Sensitive But Unclassified’ = Secret But Unconstitutional, 1 J. Nat’l Security L. & Pol’y 113, n3 (2005).

14 Executive Order 12,356 states that “it is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. . . . No restriction may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification . . .” Although drafted before the events of September 11, 2001, this National Security Decision Directive 189 (“NSDD-189”), was reaffirmed by all subsequent administrations, including that of current president George W. Bush. In November 2001, Condoleezza Rice, then National Security Advisor to the President stated that “The key to maintaining U.S. technological preeminence is to encourage open and collaborative basic research. . . . [t]he policy on the transfer of scientific, technical, and engineering information set forth in NSDD-189 shall remain in effect, and we will ensure that this policy is followed.” (Claus, R.L. Space-Based Fundamental Research and the ITAR: A Study in Vagueness, Overbreadth, and Prior Restraint, 2 Santa Clara Journal International 1 2004.) Other Executive Orders have expressly stated that basic scientific research cannot be classified if it does not clearly relate to the national security. See Exec. Order No. 12958, 60 Fed. Reg. 19,825 (Apr. 20, 1995). This encompasses health services research.

15 Cong. Rec. S 3898. May 2, 2006.

16 www.arl.org/sparc/oa LibraryGroupsCommendProvosts_06AUG.pdf