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Two Preliminary Reports From the Ad Hoc Committee on Classified and Proprietary Research

Highlights

1 Report on Progress Regarding Proprietary Research
2 Report on Progress Regarding Classified Research
Appendix to the Committee's Discussion Drafts
Substitute Drafts Recently Submitted by Torben Nielsen
TN's Suggested Draft on Proprietary Research
TN's Suggested Draft on Classified Research
Further Comments by TN re classified research

The documents below are drafts; works in progress. Terminology, emphasis, and some of its points are still being debated by the Committee. It is not ready to be carved in granite.

Notwithstanding its incompletenesses, inaccuracies and defects, the Committee, without being prepared to endorse its contents, broadly considered it useful to circulate this preliminary report for discussion at the February Senate meeting, a month before our anticipated submission of a final draft. Rather than approving or disapproving classified and proprietary research, the Committee has focused on the two frameworks within which these issues should be addressed. With one dissenting opinion (see Appendix below), we were in agreement that these documents be circulated. Collegial exchange may yield improvement. (KK)

1 Report on Progress Regarding Proprietary Research: Discussion Draft prepared for the Manoa Faculty Senate

The problems with proprietary research largely arise out of certain provisions in its associated contracts. Accordingly, the Committee recommends that all such agreements to do proprietary research under University auspices involve only the University and the funding source. In particular, faculty researchers should not be permitted to enter into contractual agreements on their own with any source of funding for proprietary research. (Of course faculty may contract privately with commercial sponsors to do various types of independent research not requiring University resources and under such provisions for consultation as apply.)

Some of the best known problems have occurred in medical research: sponsors have exercised a contractually conferred veto power, preventing the publication of research findings that suggest insufficient effectiveness or adverse effects. The practice of publicizing only findings showing safety and efficacy (suppressing those suggesting risk and ineffectiveness) can result in a dangerously misleading literature. Researchers can find themselves caught between the duty to warn colleagues of potential risks and the duty to adhere to contractual agreements.

It can also happen that sponsors may pressure PIs to agree to exclusions of certain groups from involvement in the conduct of research. This creates the danger of a two tiered student body at odds with our conceptions of academic merit.

Accordingly the committee tentatively recommends that the following four constraints apply to all contracts that the university enters into with sources of funding for proprietary research:

  1. The University of Hawaii will not enter into any contractual agreement with a commercial sponsor that restricts the right of university faculty to publish the results of any research conducted under the auspices of the University. (This provision does not prohibit limited duration embargoes imposed in the interests of patent protection.)
  2. The University of Hawaii will not enter into any contractual agreement with a commercial sponsor that grants the sponsor authority to vet who is to work, in any capacity, on the project.
  3. Where UH research activities are found post contractually to impose undue risks upon research subjects, the community or the environment, the activities shall be discontinued as soon as these risks become apparent.
  4. Where risk imposing research activities have already been underway prior to their discovery and cessation under 3 above, both the risks and the UH role in their imposition will be disclosed so as to alert those potentially affected.

The committee would be grateful to hear of ways to improve the tentative suggestions made above or of concerns not addressed by those suggestions.


2 Report on Progress Regarding Classified Research: Discussion Draft prepared for the Manoa Faculty Senate

The Ad Hoc Senate Committee on Classified and Proprietary Research herewith submits its preliminary comments and policy recommendations on classified research at the University of Hawaii. We do not cover research using "select agents" now requiring special Federal approval, nor do we consider her issues involving proprietary research., treated in a separate document.

Classified research is problematic because it can require the University to implement much higher levels of secrecy and to observe security clearances by Federal agencies of all personnel cleared for access to the research. Though some may find he ethical issues raised by these activities complex, they are not mystifying.

We have diligently tried to catalog all of the objections and concerns that have been raised about classified research conducted under the auspices of the University. But rather than seeing these as flashing red lights, we have considered these concerns as cautionary signals requiring inquiry as to whether these problems can be satisfactorily mitigated and managed under a properly drafted policy. We heatedly debated these issues during our weekly two hour meetings and in electronic exchanges during the intervals.

What we now offer to the Senate is a very preliminary set of standards that we believe should be met by any set of policies and procedures that might claim to have found a place for classified research at the University. We want to hear Senate debate before submitting our final draft next month. If the Senate finds that our recommendations are close to the mark, it should then fall to the Administration to advise the Senate whether and how the protective measures might be implemented at Manoa. In the end the Senate will have to judge whether the precautions set out here, and the Administration that will implement them, are together sufficient to safeguard the University and some of its most important interests.

Following each objection listed below are the Committee's recommendations and comments.

Objection 1: The conduct of classified research will adversely affect the University's academic atmosphere on campus, compromising the institutional values of openness and scholarship that are part of our organizational mission .

Recommendation 1: Any acceptable policy would have to insure that classified research not be carried out on campus, including any locations used for student research and academic instruction.

Objection 2: Important personnel actions will come to be based on secret research

Recommendation 2: Any acceptable policy would have to provide that promotion and tenure decisions for UH faculty could not be based on research that cannot be disclosed to one's colleagues.

Objection 3: University regulation and oversight regarding, for example, the handling of hazardous materials, research misconduct, lab animal care and human studies cannot now be carried out on classified research activities. Still other forms of oversight may be required in the future.

Recommendation 3: Any acceptable policy would have to ensure that all classified research done under UH auspices would be subject to University review procedures that are substantially equivalent to those governing other UH research. (The personnel would have to have security clearance.)

Objection 4: The involvement of students in the conduct of classified research runs the risk of creating an externally constituted two tiered student body, not consistent with the ideal of academic merit.

Recommendation 4: Any acceptable policy would have to include measures that are sufficient to prevent this from occurring.

Objection 5: Classified research holds out risks for the University without promising compensating benefits for the community as a whole.

Recommendation 5: Any acceptable policy would have to guarantee that classified research be funded and governed in ways that will create on balance benefits for the University as a whole and for the communities of which we are a part. There would have to be faculty involvement in this review process.

Objection 6: Classified research compromises the accountability of those involved in University sanctioned research activities, preventing ongoing faculty reconsideration of these efforts. There is a worry that researchers might secretly do harm to individuals, the community, and to the environment, without being able to alert others to the risks.

Recommendation 6: Any acceptable policy would have to provide that, as much as possible, classified research will be carried out under a policy of maximum disclosure, consistent with legal requirements. Faculty will be involved both in the initial vetting of proposals (under Recommendation 5) and on oversight panels (under Recommendation 3). The administration will report annually to the Senate on classified research undertaken by the University and on the consequent benefits that have accrued to it and to its communities. Finally, should undue harm be done, notwithstanding any other obligations, the University must acknowledge a paramount duty to cease the harmful activity and alert those who may have been adversely affected. This last condition sets a clear limit to contractual arrangements into which the University may enter.

Objection 7: Classified research involves UH complicity with agencies of a government that is widely reputed to have done ethically unacceptable things.

Reply: If sound, the objection from complicity would preclude acceptance of any United States government contracts. Moreover UH faculty are unlikely to agree on any general criteria for distinguishing between ethically acceptable governmental activities and unacceptable ones. However we could support a policy that narrowly defined certain activities that would not knowingly be furthered by classified research: the development of biological and chemical weapons, for example.

Members of the Ad Hoc Committee

Bruce Shiramizu
Torben Nielsen (dissenting see Appendix)
Kenneth Kipnis
Jim Tiles
Matt McGranaghan
Margo Edwards (Margo has been unable to attend meetings subsequent to the first)
Jon Osorio

Appendix to the Committee's Discussion Drafts

Substitute Drafts Recently Submitted by Torben Nielsen

On Saturday, February 12, after withholding his approval to circulate the Committee's discussion draft, Torben Nielsen submitted revisions of its Reports. Although the differences between his and the Committee's versions may or may not be material, and although the Committee has yet to discuss his concerns, Professor Nielsen's handiwork is passed along together with his firm insistence that his name not grace the Committee's draft. KK


TN's Suggested Draft on Proprietary Research:

The following constraints represents the draft result of the committees deliberations on classified research. Any policy governing proprietary research at the University of Hawaii must ensure that all contracts entered into by the University of Hawaii and a corporate sponsor incorporate language ensuring that these constraints are met.

1. The University of Hawaii will not enter into any contractual agreement with a corporate sponsor that restricts the right of university faculty to publish the results of any research conducted under the auspices of the University except for limited delays required for the purpose of securing patent rights.

2. The University of Hawaii will not enter into any contractual agreement with a corporate sponsor that grants the sponsor authority over University personnel decisions.

3. If at any time research activities conducted under the auspices of the University of Hawaii and sponsored by a corporate entity are found to violate University of Hawaii standards for the conduct of such research, these activities shall be discontinued forthwith and the University of Hawaii shall fully and publicly disclose both the offending activities and its role therein.

4. The Faculty Senate shall review any actual policies promulgated by the University of Hawaii for conformance.

The committee would appreciate any comments on this draft.


TN's Suggested Draft on Classified Research

The committee will not recommend for or against the University of Hawaii being involved with classified research. That question must be answered in a different venue. In regard to classified research, the committee has focused on objections that need to be addressed in the event the University of Hawaii does decide to participate in classified research.

What follows are the main objections we see along with possible answers.

Objection 1: The conduct of classified research may adversely affect the University's academic atmosphere, compromising the institutional values of openness and scholarship that are part of our organizational mission .

Recommendation 1: Any facility used for classified research must be located well away from the regular campus, including any locations used for student research and academic instruction.

Objection 2: Key personnel actions may come to be based on secret research

Recommendation 2: Promotion and tenure decisions for University of Hawaii faculty cannot be based on research that cannot be published.

Objection 3: Ensuring that University of Hawaii standards for research are met may be problematic in a classified environment.

Recommendation 3: Any acceptable policy would have to ensure that all classified research done under University of Hawaii auspices would be subject to University review procedures that are substantially equivalent to those governing other University of Hawaii research.

Objection 4: The involvement of students in the conduct of classified research runs the risk of creating an externally constituted two tiered student body, not consistent with the ideal of academic merit.

Recommendation 4: Any acceptable policy would have to include measures to prevent this from occurring.

Objection 5: Classified research holds out risks for the University.

Recommendation 5: Any acceptable policy would have to ensure that classified research be managed that compensating benefits accrue to the University of Hawaii as a whole. Moreover, classified research must be carried out under a policy of maximum disclosure consistent with legal constraints and the faculty must have a say in what types of classified projects are undertaken.

Objection 6: Classified research involves UH complicity with agencies of a government that is widely reputed to have done ethically unacceptable things.

Reply: If sound, the objection from complicity would preclude acceptance of any United States government contracts. Moreover University of Hawaii faculty are unlikely to agree on any general criteria for distinguishing between ethically acceptable governmental activities and unacceptable ones.

Further Comments by TN re classified research

This isn't perfect by any means. I have simply stripped out the parts that I find unnecessary or inappropriate. This includes clauses that were tantamount to a prohibition of all classified research at the University of Hawaii. As pointed out at the beginning, that is a separate question. If we were to decide not to have any classified research component, all of these objections would be moot.

We have at least two tasks remaining. First, we need to finish a set of guidelines. Second, we need to decide if we are going to engage in classified research at all. If the answer to the latter is in the affirmative, we should ask the administration to develop appropriate draft policies that conform to the guidelines we set forth. We should then conduct a final review of such policies. That would allow everyone to return to their normal activities.

I am in favor of allowing classified research subject to some constraints. I have no interest in wholesale classified research; i.e., I would like to see it restricted to areas where we arguably have unique expertise. In areas where we have such expertise, I believe it should be up to the individuals concerned to decide if they wish to participate in classified research.

I cannot suggest simple modifications to Ken's [the Committee's: KK] document that will make it acceptable to me. I fully expect he will go ahead and present his [the Committee's: KK] version. However, I insist that it be made clear that I do not agree with that document as it stands. List those who affirmatively agree and leave everyone else off.

Ken Kipnis, PhD
Dept. of Philosophy


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