Final Guidance on Surveillance Exports Expected in January, State Department Officials Say

The State Department plans to publish its guidance for exports of surveillance technology by early January and will make several changes based on industry comments, officials said. Changes include the elimination of a “kill switch” suggestion and an effort to revise the definition for “surveillance,” which some companies complained was too broad.

Speaking during a Nov. 6 Information Systems Technical Advisory Committee meeting, State Department Foreign Affairs Officers Jennifer Stein and Lana Salih said they plan to address industry concerns but stressed that the guidance is voluntary. “You’re not mandated to follow this guidance,” Salih said. “It’s something that we’re putting out voluntarily so that businesses can conduct good business.”

The agency released the draft guidance in September and gave 30 days for public comment (see 1909040071). Salih and Stein said companies raised concerns that the guidance placed more due-diligence requirements on U.S. exporters of surveillance equipment to make sure their products are not being sent to human rights abusers. The Information Technology and Innovation Foundation called the guidance “troubling” and “overly broad” (see 1910040011).

But Salih and Stein stressed that the guidance was only meant to give exporters insight into the State Department’s vetting process. Salih said the guidance arose out of questions she often received from companies that wanted to understand why their export licenses were being denied.

“It aims to provide insight on considerations to weigh prior to exporting items and offers greater understanding of human rights concerns that the U.S. government may have with an export,” Salih said. She said the guidance is meant to “complement” the Export Administration Regulations and the International Traffic in Arms Regulations, not “impose any new obligations on exporters.”

Salih also said she is “often” asked why the State Department is pursuing the draft guidance now. She said it is because of the rise of the “misuse” of surveillance technologies combined with a lack of guidance on the subject. “We believe the timing is right,” she said. “There hasn’t been any guidance on how businesses should analyze human rights concerns associated with exports of items.”

In the final version of the guidance, the State Department plans to “reframe” its definition of surveillance to address industry feedback, Stein said, adding that the “majority” of comments focused on the definition. The agency will also eliminate the suggestion for a “kill switch,” which the guidance proposed as part of its “privacy by design” suggestion. The switch could be integrated into a product and could be used to remotely deactivate the device, the guidance said. “There was a strong opinion on the kill switch, so we outright deleted that,” Stein said.

Maybe the most common concern was the perception from industry that the State Department presented the guidance as a nudge to conduct more comprehensive, extensive due-diligence on exports, which some companies said would not be feasible. Salih called the point a “very fair, very valid concern” and said the agency is “sympathetic” to those worries. “Different companies have different abilities to go as far as they’d like with this due diligence guidance,” she said. “It is very much voluntary, so it's what you as a company are able to do.”

Stein said companies should treat the guidance as a suggestion. “These are supposed to be recommendations or things to consider to kind of get your creative juices flowing when you’re thinking about how to mitigate these risks,” she said.

The agency has been working on the guidance since earlier this year, a process that involved meetings with U.S. business representatives before the draft guidance was released for public comment in September. Stein said the State Department reached out to companies and trade groups based on their comment submissions to last year’s advance notice of proposed rulemaking on emerging technologies and met with them in June.

While Salih stressed that many of the surveillance technologies referenced in the guidance aren’t on any government export control lists, she said that could change, especially with the Commerce Department’s upcoming controls on emerging technologies.

“The tide certainly seems to be shifting in that direction,” she said. “And there’s an agreement within State and Commerce that there is a need to have a closer look at these items in the interim because there is a gap control-wise. So that’s what we’re hoping to address in this guidance.”

The guidance is “still in flux,” Salih said, and the agency is still accepting comments. She also encouraged companies to reach out with questions about exports that companies are in the process of reviewing. “Our team is really tiny, and we don’t have a team that does extensive vetting or anything like that,” she said. “But we can point you in the right direction in terms of resources.”