Proposed Controls on US Surveillance Technology Exports Are A Win For Human Rights

Export-control policies are powerful tools for protecting human rights around the world. In recent years, the United States government has taken steps to strengthen export-control measures to better ensure that US-made products do not fall into the hands of individuals who may misuse them to commit human rights abuses. Rules governing surveillance technology exports have received particular attention.

On July 29, 2024, the US Department of Commerce's Bureau of Security and Industry (BIS) issued two proposed rulesthat are significant for their ability to better protect human rights around the world. They would establish new controls on facial-recognition technology for malign uses, and place new restrictions on exports to certain foreign government and those working on their behalf. Freedom House and our partners submitted comments in support of these proposed rules. The comments commend the BIS for its efforts, offer tailored recommendations to ensure the new policies achieve the greatest impact, and provide additional recommendations to further strengthen US export-control regulations and licensing policies.

Our response to proposed rules

Intelligence end user control

We applaud the proposed revision of the "intelligence end user" control to include "foreign government intelligence, surveillance, or reconnaissance organizations or other entities performing functions on behalf of such organizations." To enhance the effectiveness of this control, we suggest that the description explicitly note that "intelligence end user" refers to both foreign intelligence gathering anddomestic intelligence gathering. Without this language, the control may be misinterpreted to refer exclusively to foreign intelligence gathering.

Foreign-security end user control

We also support the proposed creation of the "foreign-security end user" control that, among other actors, includes law enforcement bodies at all levels of government. We encourage the BIS to expand the current proposed country scope of D:5 and E countries to include all countries in Group D (that are not also identified in Country Group A:5 or A:6 of supplement no. 1 to part 740 of the Export Administration Regulations). This helps ensure additional countries responsible for human rights violations are captured.

Military end user control

Like our recommendation regarding the expanded country scope for foreign-security end users, we also encourage BIS to include all D and E countries (that are not also identified in Country Group A:5 or A:6 of supplement no. 1 to part 740 of the Export Administration Regulations) for the military end user control.

US persons controls and restrictions

We commend the proposed expansion of US person controls for activities in connection with foreign-security end users, and the proposed revisions to US person restrictions for support of military and intelligence end users. These changes make it more challenging for US persons to abet the malign activities of foreign governments, which happened, for example, when former US National Security Agency employees worked on behalf of the United Arab Emiratesto surveil human rights defenders. US persons should not support the activities of intelligence, foreign-security, and military end users that facilitate human rights violations.

Facial-recognition technology control

We applaud the proposed control for facial-recognition technology used for mass surveillance and crowd scanning. It is well documented that this particular use facilitates human rights violations and abuses that undermine not only the right to privacy, but also the rights to free expression, association, and assembly.

Our recommendations for new rules

"Remote biometric identification" technology control

In addition to facial-recognition technology, it is well documented that other remote biometric-enabled technologies, such as iris scanning, facilitate human rights violations and abuses. Therefore, we propose that "remote biometric identification" also be controlled.

Improved transparency of exports

We encourage the BIS to improve its Annual Country Licensing and Trade Analysis reports by making certain data available every six months and by covering a greater number of countries. We also recommend that this report provide specific information regarding the export of key technologies, like facial recognition. If BIS reporting is strengthened in these ways, it will be easier for civil society, media, academia, and other actors to track where and to whom US items are exported, which can inform research and advocacy efforts.

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