Industry Urges Caution on Potential Surveillance Export Controls, Others Call for More Restrictions

The Bureau of Industry and Security should be careful not to place overly broad, unilateral export restrictions on items for crowd control reasons if the controls disproportionately hurt U.S. competitiveness, industry told BIS in comments released this month. But some commenters, including a human rights advocacy group and a Congress member, called for new export restrictions and suggested existing controls -- especially on technologies that contribute to Chinese human rights abuses -- should be tightened.

BIS asked for comments in July, saying it was considering new controls on facial recognition software, disruption lasers, voice print identification systems and other surveillance-related technologies (see 2007160021). The 20 comments highlight the tension between companies that say U.S. export controls are damaging U.S. competition and government officials tasked with limiting China’s ability to import advanced U.S. technologies.

Intel said BIS is in danger of restricting widely used benign technologies, which would only hurt U.S. industry. The company said “general purpose processors” and other computing products that can be “incorporated into countless systems and applications” should not be controlled. The Security Industry Association, which represents surveillance equipment manufacturers, said more license requirements could stifle innovation and raise the prices of U.S. technologies, repelling foreign customers. The Information Technology Industry Council said BIS’s current controls are “sufficient,” and Genasys Inc., a San Diego manufacturer of long-range acoustic devices, said some export controls being considered would restrict exports of products that are also sold by foreign competitors.

But other commenters called for more restrictions. The Uyghur Human Rights Project called for an increase of export controls to block U.S. goods from contributing to Chinese surveillance efforts, and Rep. Tom Malinowski, D-N.J., said the controls have not “kept up to date” with the rapid advances” in technology.

BIS should “adopt the strictest possible controls on technology that may be used for surveillance and control by Xinjiang Regional authorities,” the UHRP said. BIS should also review technology transfers to China that may be “occurring outside the license approval framework,” the group said, including at U.S. biotechnology companies, research centers or universities that participate in Chinese government research.

In a September letter to BIS released by the agency Oct. 1, Malinowski said the U.S.’s “current export regulatory structures are failing to provide assurance to the American people that United States companies are not inadvertently contributing to abusive digital surveillance regimes.” He said “it troubles me” that the Commerce Department has not provided industry guidance on when surveillance or “digital monitoring systems” are subject to end-user controls. “DOC should provide guidelines defining when all end-users with patterns of human rights abuse linked to [crime control (CC)], facial recognition, and advanced surveillance items and services would warrant end user controls,” Malinowski said. The State Department recently issued a guidance for exports of surveillance technology (see 2009300056), and BIS recently revised its license requirement for items controlled for crowd control reasons (see 2010050040).

While some controls may be warranted, others may serve no purpose and would only hurt U.S. companies, Intel said. BIS should avoid restrictions “based on the technical specifications or functions of hardware,” the company said, which would not prevent human rights abuses involving artificial intelligence software. “They would instead burden the wide-range of ameliorative uses of facial recognition technology and its underlying hardware, without actually guiding its end use.”

Intel added that placing “hardware items” on the Commerce Control List would “burden U.S. industry … given the ubiquity of general purpose processors and the myriad of applications for hardware.” The requirements would also come with more due diligence burdens, Intel said, which the company expects would be “extremely challenging in an already challenging financial climate.”

“An overbroad imposition of CC controls for general purpose items that can be used in devices for all facial recognition applications would disincentivize the use of U.S. products,” the company said, “which would result in direct economic harm to Intel and other U.S. companies.”

SIA agreed and criticized BIS’s July notice that asked for comments on the potential controls. The group said BIS has not “sufficiently demonstrated any attempt” to secure multilateral controls to “justify licensing requirements for the technologies identified” in the notice. “The [notice] falls short in articulating why unilateral export controls outweigh multilateral export controls,” the group said, adding that placing controls on the technologies may be pointless. “Most of the items identified in the [notice] represent mature technologies that are produced through international collaboration and are available globally on the government and commercial markets,” SIA said.

The notice also suggests that compliance burdens for these exports fall “solely on the manufacturer” as opposed to distributors or third-party suppliers,” the group said. “BIS must explore means to regulate intermediaries that supply surveillance equipment to entities that commit human rights violations,” SIA said.

BIS should consider conducting a review of technologies that “facilitate mass surveillance or other human rights abuses when in the wrong hands” and only control those items, SIA added. BIS should review “each technology item, end-use, and end-user to assess the technology’s overall risk,” SIA said. If the agency doesn’t, it could unintentionally place broad controls on goods such as facial recognition technologies. “If export controls are broadly and unilaterally imposed, these license requirements could stifle innovation, raise the price of U.S. technologies, and harm U.S. competitiveness,” the group said. “Increasing U.S. technology costs and impeding technology transfer between the United States and other democratic countries could facilitate the very human rights violations BIS laudably aims to prevent.” BIS declined to comment.