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John Reece Roth and Export Control

John Reece Roth and Export Control

United States v. John Reece Roth: Export Control in Academia

Background

On Wednesday July 1, 2009 John Reece Roth, a 72 year-old former emeritus professor of electrical engineering at the University of Tennessee in Knoxville (UT) was sentenced to 48 months of jail time and another two years of supervised release for failing to adhere to the Arms Control Export Act (ACEA). The charges levelled against Roth included conspiracy, wire fraud, and 15 counts of exporting ‘defence articles and services’ to foreign nationals of China (PRC) and Iran without a license.[1] On January 18, 2012, Roth began serving his sentence, surrendering himself to a federal correctional facility in Ashland, Kentucky after his attempts at appeal proved unsuccessful.

This study focuses on the background of United States v. John Reece Roth and its implicationsfor export controls in research and academia. This case is the first known of its kind; Roth was the first university professor or administrator to be prosecuted for the transfer of controlled defence technology to foreign nationals, and it thus offers vital insights into the implications and consequences of academic export control violations. Whilst the main focus of export compliance to date has been on commercial trade, this case demonstrates that the academic community must be aware that it too is subject to the enforcement of export control laws when research has a defence or security focus.

Whilst this case took place in the United States and the specific laws at play are US-specific, this discussion carries important implications for academics and research institutions globally. This case shows that academic research can be subject to export regulations, and crucially that more attention needs to be given to the intersection of policy-makers and academics in how ‘sensitive’ information is perceived and laid into law. Academia is no longer the purely private enterprise it was in previous centuries; the links between academic research and policy fields are quickly growing in number and strength. Recognition of this changed dynamic is a necessary step to ensure academics remain compliant with export-controls and that policy-makers do not create laws that unnecessarily hinder academic freedom nor growth.

Key Points

– John Reece Roth, Daniel Sherman, and Atmospheric Glow Technologies, a private research company, were subject to criminal prosecution after they were found to have violated export control laws for a United States Air Force project.

– United States v. Jon Reece Roth shone new light on what it means to ‘wilfully’ defy export controls with the court upholding the definition of ‘wilful’ as knowingly violating a known legal duty, rather than having specific knowledge of export control regulations.

– Roth and the court had different views of what comprised ‘technical data’ under the AECA, with Roth holding that his research existed within the public domain and thus that it should not be subject to export control laws.

– This case demonstrates that academics and research institutions are not immune to export control prosecution. In light of this, academics and policy makers globally should be aware of this fact and strive to educate themselves on the intersections between academia and export control laws.

The Plasma Actuator USAF Project

The charges in this case centre around Roth’s noncompliance with export-control requirements for a United States Air Force (USAF) funded-project subcontracted through the private company Atmospheric Glow Technologies (AGT) in the period from 2005-2006.

In April 2005 USAF awarded a $749,751 contract to AGT. USAF was especially interested in research being conducted by Roth, UT professor and co-founder of AGT Daniel Sherman, and NASA scientist Stephen Wilkinson. Roth, Sherman, and Wilkinson were researching the abilities of plasma actuators to control the motion and direction of air and enhance flight performance of unmanned air vehicles (UAVs) by ensuring air flows smoothly over the wing. AGT gave Roth and UT a $73,000-a-year subcontract to continue developing plasma actuators to control the flight of military drones.

Roth was emphatic that he wanted Xin Dai, a Chinese doctoral student, to assist him on the USAF project. Xin had been employed by UT College of Engineering as a graduate research assistant and graduate teaching assistant under Roth’s supervision since August 2002. Roth was very impressed by Xin, commenting years later: ‘When anyone who does research refuses to hire Chinese or Iranian students, they’re cutting off their nose to spite their face’ (Golden, 2012). Sherman, who was concerned about a potential leak of sensitive information to the PRC, compromised with Roth, agreeing to appoint Xin to work on basic research whilst US graduate student Truman Bonds conducted sensitive research. This relationship did not prove sustainable, and the two began to share research with the full support of both Sherman and Roth. Sherman later admitted that he had known research should have been restricted to US citizens (Golden, 2012).

Whilst Roth’s subcontract with AGT and USAF explicitly stated that the project was liable to export controls, there is some question as to whether Roth was fully aware of this fact from the beginning. It is certain that Roth knew by May 2006: Upset that Sherman and AGT refused to allow him to hire Iranian national Sirous Nourgostar, Roth turned to Robin Witherspoon who was responsible for export-control compliance at UT. Witherspoon quickly realized that Roth’s project was export controlled, and warned Roth on several occasions not to take sensitive files to the PRC on his upcoming lecture tour. Upon realizing that Roth had employed Xin in the lab, UT disclosed this information to AGT, the FBI, US Customs, and the State Department.

It is highly likely Roth knew he was not in full compliance with his contract before this point: Roth’s Writ of Certiorari makes it clear that Roth was ‘repeatedly warned,’ and that he knew the project material was subject to export control laws: ‘He does not contend he was unaware of the AECA or its license requirements.’ (Writ of Certiorari, 2011). Electronic and written communication between Roth and Sherman beginning in October 2004 proves they were thinking of employing Xin Dai on the USAF project and that they knew the project was subject to export controls (Indictment, p. 12).  Nevertheless, during his trial Roth testified he was unaware that hiring the foreign graduate students was a violation of his contract, and that he would not have participated himself had he known: ‘This whole thing has not helped me, it has not helped the university, and it has probably not helped this country either’ (Borrell, 2009).

In May 2006 Roth returned from his lecture tour in China to be met at the Detroit Airport by federal customs agents who photocopied documents in his briefcase and luggage, including one of Xin’s reports on the USAF project, and an agenda that showed Roth had lectured on the plasma actuator project whilst in the PRC. Roth then flew to Knoxville where the FBI seized his computer and thumb drive. They discovered another report from Xin and a draft of a paper on plasma aerodynamics that Xin had sent to Roth in China via a Chinese Professor because Roth’s email was not working in the PRC. Regardless, this method of transmission meant that a highly sensitive document had been sent to a Chinese scientist. The FBI interrogated Roth for two hours in the Knoxville airport lobby (Golden, 2012).

The Allegations

For a non US-citizen to engage in export-controlled research, the university must obtain a license from the State Department. The only exception to this clause is research that is openly publishable or exists in the public domain. Thomas Zurbuchen, a professor of space science and engineering at the University of Michigan in Ann Arbor who felt the subjects he was comfortable talking about in his classes diminished in the aftermath of the Roth case, elucidates this distinction: Discussing the physics of how radiation affects silicon in a circuit is fine, but discussing how to solve this problem is off limits because it would get into the specifics of manufacturing a regulated item (Weinberger, 2009). Whilst Roth claims his research did not require a license due to the fact that many areas of plasma research have non-military applications, USAF initially restricted the AGT contract because it was part of a larger weapons program intended to improve the combat ability of UAVs. Legally then, the failure of UT, AGT, and Roth himself to procure a license for his foreign-born researchers opened them up to criminal prosecution under the AECA.

Roth was accused of one count of conspiracy to export defence articles and services to foreign nationals, 15 counts of exporting defence articles and services without a license, and one count of wire fraud for defrauding UT of his honest services. Sherman, in the hope of avoiding multiple charges, pleaded guilty to one count of conspiring to violate export controls and supplied emails and journal entries for the prosecution. Sherman was sentenced to 14 months in prison and prohibited from working on federal contracts in the future. AGT tried for bankruptcy protection in March 2008 and pleaded guilty to 10 counts of export control violations in August 2008. The University of Tennessee was not prosecuted, as they claimed to be ignorant of Roth’s actions and disclosed his violations to the government as soon as they became aware. Under UT’s export-control policies, ‘each employee was responsible for understanding any export control requirements related to the employee’s work and ensuring no exports were made contrary to these requirements,’ effectively placing the burden of noncompliance on Roth (Indictment, p. 3). Sentencing attorney in the case, Russ Dedrick said, ‘This case should send a stern warning to those who would betray the trust of our nation by violating the export control laws by providing our military information to foreign nationals’ (FBI, 2009).

Roth’s Defence

By most accounts, Roth is an accomplished scientist and teacher. After completing his undergraduate course at the Massachusetts Institute of Technology Roth went on to receive his doctorate from Cornell University in 1963. Roth then worked at NASA before accepting a position at UT in 1978. In 1995 Roth wrote the book Industrial Plasma Engineering, which was followed by a second volume in 2001. Roth holds 11 patents, has testified before Congress on nuclear fission, and has been named as an honorary professor at several Chinese institutions. Xin, testifying on Roth’s behalf in court said, ‘You know, in China, Dr. Roth have a very prestigious reputation… anyone interested in plasma engineering know Dr. Roth’ (Golden, 2012).

Roth’s academic accomplishments surely played into his own view that he was being wrongly prosecuted. In May 2008 Roth was indicted on 17 counts after refusing a plea bargain. Roth’s lawyer reported him saying, ‘I won’t go to my deathbed having admitted that I betrayed my country’ (Golden, 2012). Speaking from prison Roth said, ‘I see this interpretation of the export control act and concern about homeland security as a deadly threat to free scholarly inquiry’ (Golden, 2012). In his defence, Roth argued that discriminating against foreign students is prohibited by university policy, and that many of the best candidates for research in his field were foreign. Speaking from prison years later, Roth commented, ‘the problems I worked on in the plasma lab were not easy problems. They were hard problems. The calibre of foreign students applying to my work was much better than the general run of US students.’ (Golden, 2012).

The central questions of this case come to light in Roth’s attempt at appeal in 2011. In his petition for writ of certiorari filed on April 5, 2011 Roth’s lawyers presented the question of whether ‘the district court correctly instructed the jury on the meaning of the term “wilfully” in the Arms Export Control Act, 22 U.S.C. 2778(c), where the court required the jury to find that petitioner voluntarily and intentionally violated a known legal duty, but did not require the jury to find that petitioner knew that the exported items were on the United States Munitions List, 22 C.F.R. 121.1’ (Writ of Certiorari, 2011).

There are two key points here. The first concerns the opposing definitions of ‘wilful’ held by Roth and his prosecutors. The second is the distinction between information that exists in the public domain and information that is considered to be ‘sensitive’.

The ACEA act provides criminal penalties for any person who wilfully violates any provision of the act or any rule or regulation issued under the act: ‘To prove that defendant acted knowingly and wilfully, the government must prove beyond reasonable doubt that the defendant voluntarily and intentionally violated a known legal duty’ (Justice Brief). Thus, ‘wilfully’ in the context of the AECA only requires the defendant be aware he was violating a legal duty not to export certain items, not that he had specific knowledge of the regulatory regime. The upholding of this definition sets an important legal precedent within the US, but more importantly emphasizes the possibility for different actors to view a ‘wilful’ action in a variety of ways. Globally, it is crucial for academics to understand how their local law views a ‘wilful’ violation so that they can be avoided.

The definition of ‘technical data’ under the AECA brings to light the second area of disagreement between Roth and his prosecutors.[2] Roth held that the research being conducted in his laboratory should not be viewed as ‘technical data’ under the ACEA since ‘technical data’ does not concern ‘general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain’ (Justice Brief). Though Roth had a contract with USAF that he clearly violated, opening him up to criminal prosecution, Roth still perceived the research he was conducting as ‘basic’ or public. This disagreement illuminates the gap between what some academics might call ‘basic research’ and what the law actually considers to be ‘basic research’. A more comprehensive dialogue and an attempt to define common ground between these two factions would allow for greater clarity and fewer misunderstandings on what information should be available in the public domain.

Implications and Consequences

These conflicting views of what it means to ‘wilfully’ act against export controls and of what comprises technical data carry implications for export controls in research and academia. Be re-defining ‘wilful’ in court, the prosecutors of this case codified into US law a new definition of noncompliance whereby to be guilty an individual simply has to be shown to have knowingly gone against the ACEA. This definition of ‘wilful’ clarifies in law what it means to violate export controls in academia, closing loopholes and making compliance more black and white while emphasizing the importance of understanding how a wilful action is defined in local law. US attorney Bill Killian believes Roth’s sentence helped to communicate ‘the importance of export compliance to academia and industry, especially in the research and development communities. It underscores the criminal consequences of non-compliance and what happens to those who knowingly and wilfully violate export control laws’ (FBI 2012).

The debate over what constitutes ‘technical data’ is hazier. Though Roth’s contract clearly stated his research would be subject to export controls, from an academic point of view Roth believed his research should be considered a part of the public domain. This belief highlights a crucial bias of academia, the belief that knowledge should be made freely available to all. It is on this claim that academia and export controls clash, and it is the perceived threat to this belief that makes academics wary of export control. The United States v. John Reece Roth makes it clear for the first time that academic research classified as sensitive or as ‘technical data’ can be subject to export control laws and that noncompliance can be prosecuted in the same way as it would be for commercial research. Whilst the specifics of export controls differ throughout the world, this case highlights the importance of understanding the difference between data that can be shared freely and information that needs to be more closely guarded by law.

 Further Considerations

‘The illegal export of restricted military data represents a serious threat to national security… Today’s sentence should serve as a warning to anyone who knowingly disclosed restricted military data in violation of our laws,” commented David Kris, Assistant Attorney General for the National Security Division of the US Department of Justice after Roth’s sentencing. The Roth case should serve as a warning, but not just to those who seek to willingly disclose classified information. United States v. John Reece Roth sets into US law clear guidelines for export compliance and provides the justification for criminal convictions for non-compliance. Globally, this case should serve as a warning to the academic world, not to be scared to continue encouraging the free exchange of knowledge and ideas, but to do so with caution.

In a 2011 report, the FBI claimed, ‘The open environment of a University is an ideal place to find recruits, propose and nurture ideas, learn, and even steal research data’ (Golden, 2012). Whilst export controls are not inherently designed to restrict scientific and academic research, universities and research establishments should take precautions to ensure that the free exchange of ideas is not threatened by failing to take necessary precautions. Additionally, researchers should be conscious of legal definitions for what information lies in the public domain and what research is considered ‘sensitive’. Academia is not immune to export controls. Researchers should thus do everything in their power to ensure they know and understand export control regulations to avoid prosecution while policy-makers should attempt to engage with academics and institutions to guarantee that regulations do not unnecessarily inhibit learning and that all regulations are clearly accessible and known throughout the academic world.

Sources (used throughout)

Borrell, Brendan (July 2, 2009) ‘Tennessee Physicist Sentenced to 4 Years for Sharing Drone Planes with Foreign Students’ Scientific American: http://www.scientificamerican.com/blog/post.cfm?id=tennessee-physicist-sentenced-to-4-2009-07-03

Brief fromUnited States v. John Reece Roth: http://www.justice.gov/usao/briefing_room/ns/mca_ce_more.html

Brief from writ of certiorari, United States v. John Reece Roth: http://www.justice.gov/osg/briefs/2010/0responses/2010-1220.resp.pdf

Golden, Daniel (November 1, 2012) ‘Why the Professor Went to Prison’ BusinessWeek: http://www.businessweek.com/articles/2012-11-01/why-the-professor-went-to-prison

‘Former University of Tennessee Professor John Reece Roth Sentenced to 48 Months in Prison for Illegally Exporting Military Research Technical Data’ (July 01, 2009) US Attorney’s Office, Eastern District of Tennessee: http://www.fbi.gov/knoxville/press-releases/2009/kx070109.html

‘Former University of Tennessee Professor John Reece Roth Begins Serving Four-Year Prison Sentence on Convictions of Illegally Exporting Military Research Data’ (February 01, 2012) US Attorney’s Office: http://www.fbi.gov/knoxville/press-releases/2012/former-university-of-tennessee-professor-john-reece-roth-begins-serving-four-year-prison-sentence-on-convictions-of-illegally-exporting-military-research-data

Indictment from United States of American v. John Reece Roth and Atmospheric Glow Technologies, Inc. Available at: http://web.knoxnews.com/pdf/roth-indictment.pdf

McBride, Thaddeus and Reid Whitten (October 24, 2011) ‘Prison Time and Export Controls: University Professor’s Case Illustrates Dangers of Ignoring Export Compliance’ Government Contracts, Investigations, and International Trade Blog: http://www.governmentcontractslawblog.com/2011/10/articles/itar/prison-time-and-export-controls-university-professors-case-illustrates-dangers-of-ignoring-export-compliance/

Weinberger, Sharon (9, September 2009) ‘Export-Control Laws Worry Academics’ Nature: http://www.nature.com/news/2009/090909/full/461156a.html


[1] The ACEA gives the US president authority to control the import and export of defence articles and to “designate those items which shall be considered as defence articles and defence services for the purposes of this section and to promulgate regulations for the import and export of such articles and services.” (http://www.justice.gov/osg/briefs/2010/0responses/2010-1220.resp.pdf).

[2] Category VIII of the US munitions list includes UAVs and all associated equipment and technical data, in which technical data includes ‘information which is required for the design, development, testing, or modification of defence articles’ (http://www.justice.gov/usao/briefing_room/ns/mca_ce_more.html)

UNSRC1540

UNSCR 1540

In April 2004, the United Nations Security Council voted to adopt UN Resolution 1540 on the non-proliferation of weapons of mass destruction. The resolution is important because it calls for states to establish controls on the exports of goods which could be of use in a WMD programme. UNSCR 1977 of 2011 extended the mandate of 1540 and the committee which was set up to monitor 1540 implementation. This page will attempt to deconstruct some of the key elements of Resolution 1540 with the aim of highlighting where it fits in with national control regimes.

Four key things to take from UNSCR1540 are as follows:

·         Resolution 1540 was passed by the Security Council in 2004 in the aftermath of a number of important proliferation developments.

·         After 1540, states were legally required to develop and implement a system of controls on the export of sensitive goods which could have a use in a WMD programme;

·         1540 universalised and formalised the requirement that states address a broader non-proliferation agenda which includes the financing of proliferation and transportation of goods to illicit programmes;

·         1540 first officially highlighted the role that the private sector can play in countering the proliferation of weapons of mass destruction.

NB: All quotations are taken from UNSCR1540, the original text of which can be found here.

The background to the resolution and each of the following three points will be explored in turn:

Background to 1540

A couple of factors led to the consideration and passing of the resolution at the United Nations:

·         The A Q Khan network was uncovered in the period immediately prior to the consideration of the resolution. The Khan network, centring around Pakistani nuclear scientist Abdul Qadeer Khan, was involved in illicit transfers of nuclear technology to a number of proliferant states around the world.

·         The terrorist attacks of 9/11 heightened concerns surrounding the possibility of nuclear terrorism. The first couple of clauses refer to non-state actors.

UNSCR 1977

·         UNSCR 1977 was the follow on to 1540 which extended the mandate of the 1540 committee, set up to monitor implementation around the world.

Controls on Sensitive Exports Universalised

1540 essentially made it mandatory for all states to put in place export controls. Article 3 reads as follows:

Decides also that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to this end shall:

(a) Develop and maintain appropriate effective measures to account for and secure such items in production, use, storage or transport;

(b) Develop and maintain appropriate effective physical protection measures;

Parts (a) and (b) relate more to measures to secure fissile material (it would be impractical and damaging to trade to enforce domestic controls on dual use technologies for example).

(c) Develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law;

Part (c) decides that states will establish or continue to maintain border controls and the ability to enforce them.

(d) Establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations;

Part (d) decides that states will establish, develop, review and maintain a national export control system over sensitive goods. 

A Broader Agenda

1540 universalised and formalised the requirement that states address a broader non-proliferation agenda which includes the financing of proliferation and transportation of goods to illicit programmes: Article 3 includes that states should establish:

(d) … appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation

Part (d) decides that states should develop laws and regulations relating to the provision of funds and services that would enable proliferation

The Role of the Private Sector

UNSCR 1540 also assigned a role to the private sector in making export controls work, calling upon states:

8 (d) To develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws;

Clause 8 part (d) highlights the need to engage the private sector if they are to be compliant with legislation.

UNSCR 1977 goes further and:

encourages the 1540 Committee, at its discretion, to draw also on relevant expertise, including, civil society and the private sector, with, as appropriate, their State’s consent;

Export Compliance for the Composites Industry – 16th February 2012

Some composite materials offer desirable properties for use in military, missile and WMD programs. National export controls exist in practically all countries to check proliferation-related trade in these materials. Companies operating in the composites sector need to have business-friendly export compliance systems in place to manage the legal, financial, and reputational risks of either exporting goods without a licence or inadvertently supplying goods to a programme of concern.

This seminar provided an up-to-date assessment of the proliferation threat posed to the UK composites industry and highlighted considerations for export compliance and risk management. Proliferation specialists, government officials, and industry experts outlined ways to effectively manage export compliance requirements and best practices.