On May 13, John Reece Roth, a retired University of Tennessee professor, is expected to walk into a Knoxville courthouse and be sentenced to at least five years in prison for allowing unauthorized foreign citizens access to restricted technology.
The chief prosecutor in Mr. Roth’s case has openly wished that it would make universities and their professors more careful about how they handle militarily sensitive information. But as Mr. Roth’s sentencing approaches, federal authorities are also trying to calm universities by portraying Mr. Roth as a deliberate scofflaw whose prosecution doesn’t signal a broad new enforcement drive of complicated federal laws and regulations over who can work with potentially sensitive technology on college campuses.
As the economy struggles, even federal officials charged with ensuring national security say they recognize the danger of universities being scared into avoiding areas of important scientific research.
The Roth case “is a unique circumstance, applying to this particular person,” A. William Mackie, the assistant U.S. attorney who led the prosecution in the case, told The Chronicle.
Mr. Roth, 71, who taught electrical and computer engineering at the university’s Knoxville campus, was convicted on charges involving his use of a Chinese graduate student on a Pentagon research contract. The work involved developing ways of using electrified plasma on the wings of an unmanned aircraft to control the flow of air over the wings and thus steer the vehicle.
Immediately after Mr. Roth’s conviction last September, Mr. Mackie said universities “should take note that it means they need to be aware and cognizant of their duties under the law to protect national-security information that’s entrusted to them.”
Change in Tone
In more recent months, however, Mr. Mackie and other federal officials have been meeting with academic leaders, trying to assure them that the government regards Mr. Roth as guilty of unusually egregious and willful violations.
“There’s nothing comparable to this” in terms of federal investigations of university professors, Mr. Mackie said. “This is the first case in which there was something that was brought to our attention that seemed to rise to a level that we thought could be proved that amounted to an intentional violation.”
University leaders say they understand and appreciate Mr. Mackie’s assurances. Yet with the law so complex, the number of potential violations and violators so large, and the accompanying penalties so severe, administrators and faculty members remain concerned.
“It’s just very confusing for the universities,” given the large number of students they draw from China and other countries that the U.S. government regards as potential adversaries, said Michael M. Crow, president of Arizona State University.
American colleges and universities enrolled about 624,000 international students, representing 3.5 percent of total enrollment, in 2007-8, according to the Institute of International Education. That includes more than 84,500 students from India, 81,100 from China and nearly 10,000 from Saudi Arabia.
Mr. Crow is part of a group of university leaders who met with Mr. Mackie and other federal law-enforcement officials, including the FBI director, Robert S. Mueller III, in February at the FBI’s headquarters in Washington to discuss the Roth case and other national-security matters involving higher education.
The session, held just two weeks after President Obama was inaugurated, was one of several instances in which Mr. Mackie said he has tried to calm fears on university campuses about the implications of the Roth case.
Shifting Politics
The prosecutor’s apparent change in emphasis may reflect both political and economic shifts since Mr. Roth’s conviction, said Alexander W. Koff, a lawyer with Whiteford Taylor Preston LLC who advises universities and other institutions on export and trade law.
“It could be the economy; it could be the Obama administration; it could be the fact that so many universities had started to band together and send messages through their trade association that the message got back,” Mr. Koff said.
Mr. Roth’s troubles stem from his ownership of a small share in a now-bankrupt company, Atmospheric Glow Technologies Inc., or AGT, that had a license to develop and market plasma technology developed at the university.
Evidence presented at his seven-day trial showed that Mr. Roth began working with AGT on the Pentagon contract in 2004, and that he initially gave the Chinese graduate student, Xin Dai, a limited role in which the student conducted plasma tests only on the university campus. That kept Mr. Dai away from separate testing at the AGT facility that examined how the various test plasmas actually performed on a wing in a wind tunnel.
But that separation “was not working out as a practical matter,” Mr. Mackie said, and Mr. Roth gradually began bringing Mr. Dai into other areas of the project.
The AGT scientist overseeing the project was Daniel Max Sherman, a former student of Mr. Roth’s. Mr. Sherman later acknowledged he should have done more to keep Mr. Dai away from the project, and both he and the company pleaded guilty to charges of sharing information on classified munitions with an unauthorized foreign national.
Mr. Sherman is scheduled for sentencing on June 12 on a single count of conspiracy, for which he faces a maximum sentence of five years and $250,000. Prosecutors are recommending a “lower range” sentence, given Mr. Sherman’s decision to plead guilty and cooperate with the investigation, Mr. Mackie said.
University Awareness
The university became aware that Mr. Roth was using a foreign national on the project, in apparent violation of law, in 2006 when Mr. Dai was nearing completion of his graduate studies, and Mr. Roth notified administrators of his plan to replace Mr. Dai with an Iranian student, Sirous Nourgostar. Mr. Roth was found guilty September 3 on 17 counts of conspiracy, fraud, and violations of the Arms Export Control Act. In addition to giving Mr. Dai and Mr. Nourgostar some involvement in the Pentagon project, Mr. Roth was found by the jury to have traveled to China with a laptop computer containing information on the project, despite being warned by the university not to do so.
Mr. Roth faces a maximum penalty of 180 years in prison and $16-million in fines, but federal sentencing guidelines, endorsed in this case by prosecutors, call for a term of 63 months to 78 months.
Mr. Roth’s lawyer, Thomas H. Dundon, said the professor never believed he was violating the law, in part because he wasn’t clear on the exact regulations and he thought he was keeping Mr. Dai from involvement in the part of the work with direct military applications. Mr. Roth also believed that AGT, not he, was ultimately responsible for any decision to share information with Mr. Dai, Mr. Dundon said. And Mr. Roth pointed out that university officials acknowledged their failure to check a line on a document that would have indicated foreign students were ineligible to work on the project, Mr. Dundon said.
University of Tennessee officials, however, satisfied prosecutors that they had enough safeguards in place to prevent illegal sharing of data, and that they had taken enough action when they learned of possible violations, that they did not deserve to be charged in the case, Mr. Mackie said. Mr. Roth, by comparison, demonstrated sufficient awareness of the law on his own to be held responsible for his actions, Mr. Mackie said.
The university did not have an office dedicated to export compliance when Mr. Roth began work on the AGT project but did have one in place by the time he sought permission to work with the Iranian student. The university did have internal paperwork that initially mischaracterized the applicable export provision, but Mr. Roth apparently never saw that form and there was no evidence that it had affected his actions, Mr. Mackie said. At trial, the prosecutors used Mr. Roth’s handwritten notes to help show that he knowingly violated export laws.
At a Global Disadvantage?
The University of Tennessee is among a growing number of research institutions that have established compliance offices as federal export law grows more complicated and rigorous, said Tobin L. Smith, associate vice president for federal relations at the Association of American Universities.
The concern among universities dates to 2004, when the inspectors general of several federal agencies warned about a potential problem with giving foreign nationals unauthorized access to technology that is unclassified, yet still subject to export controls.
University leaders argued that those officials’ proposals to toughen federal enforcement could harm the ability of universities to conduct basic research and thereby weaken the overall U.S. economy. Federal policy makers are still in the process of deciding exactly how they will put the proposed changes into effect.
But other federal policy changes may already be hampering American scientific research and economic competitiveness, Mr. Smith said. He cited the government’s decision in 1999 to classify satellite technology as weaponry, giving jurisdiction over satellite-export regulations to the State Department rather than the Commerce Department.
The American share of the global market in commercial communications satellites has dropped since then to about 40 percent, from 65 percent, according to the Satellite Industry Association. And American space scientists increasingly avoid hiring foreigners, Mr. Smith said.
“Their feeling,” he said, “is it’s easier just not to even look to hire foreign students in certain areas where the regulations are the most arduous.”
Many leading universities simply won’t touch projects that involve limits on student access, said Claude R. Canizares, vice president for research at the Massachusetts Institute of Technology.
The government should be sure that the benefit of a student restriction is worth the cost, “and if technologies are widely available around the world, then the benefit is very marginal at best and not worth the cost,” Mr. Canizares said.
Some university officials worry that the Roth case represents a further crackdown, Mr. Smith, of the universities association, said. “I have no reason to believe that’s the case,” he said. “We haven’t seen a rash of these prosecutions and people going on witch hunts.”
But with such unclear rules, it’s hard to tell how some universities might now react, Mr. Smith said. “It is a complex set of rules and regulations to understand,” he said.
The Roth case may scare universities, but it might not be the best example of the threat they face from export policies, said Stephen F. Propst, a lawyer with Hogan & Hartson LLP who advises colleges on export laws.
Colleges may face even greater pressure from tougher federal policy toward companies, which in turn defend themselves by putting more restrictions on their university partners to limit the publication of research findings and the involvement of foreign nationals, Mr. Propst said.
With universities in a stepped-up competition for research dollars, more are being asked by companies to abandon their principles of open academic research, he said. Pressure to exclude foreigners also could lower the overall quality of research in the United States, he said.
Mr. Mackie said he’s trying to walk that line, telling universities to be careful while encouraging them to keep working on government-sponsored projects.
“The message to universities,” he said, “is that the government wants to continue what is a mutually beneficial work arrangement.”
