“The United States should work to achieve an export control regime that is narrowly targeted at exports that truly threaten our national security, without impeding the leadership of U.S.-based companies and research institutions in these technological fields,” the Computer & Communications Industry Association stated in a response to a BIS advance notice of proposed rulemaking.
“Overbroad controls that would unreasonably limit or burden U.S. exports of technologies will place U.S. companies at a disadvantage vis-a-vis foreign competitors that do not face similar restrictions,” the association said.
In late November, BIS published a notice seeking industry input for how best to identify emerging technologies that may threaten the country’s security and require future export controls. Congress authorized BIS to undertake this task through both the 2019 National Defense Authorization Act and 2018 Export Control Reform Act.
Specifically, the agency is most interested in 14 new technology categories that have potential to fuel foreign weapons manufacturing, intelligence gathering and terrorist activities to the detriment of the U.S. These technologies may not be currently listed on the Commerce Control List (CCL), which require specific licensing oversight before being exported abroad.
Troncos noted a number of technologies identified by BIS as emerging, such as artificial intelligence, machine learning and data analytics, have been under development globally for decades.
“In instances where clear technical control parameters are elusive (e.g. where a general-purpose technology constitutes a threat to U.S. security only when used in a particular manner by an actor with ill intent), BIS should consider alternative approaches,” he said. “For example, if a list-based control would be overinclusive, BIS should rely on ‘end-user’ and ‘end-use’ controls for that technology.
“In all cases, it is critical to maintain explicit exemptions from any controls for technology that is in commercially available software, products or services,” Troncos said.
In its advance notice, BIS proposed that potentially national security-sensitive technologies would be determined by an interagency process that will consider both public and classified information, as well as information from the Emerging Technology Technical Advisory Committee and the Committee on Foreign Investment in the U.S. The interagency process would result in proposed rules for new Export Control Classification Numbers (ECCNs) on the CCL, the agency said.
“For such an analysis to be meaningful, BIS will need to solicit information from the full range of stakeholders that make up the U.S. innovation ecosystem about the potential effects that deeming a particular technology as ‘emerging’ could have on U.S. leadership in science and technology,” Troncos said. “When technologies are deemed ‘emerging,’ we urge BIS to adopt license exemptions to ensure that the internal development processes of U.S. companies are not disrupted.”