United States: State Department Signals Increased Focus On Surveillance Technology And Human Rights Abuses

On 4 September 2019 the U.S. State Department issued "Draft 'U.S. Government Guidance for the Export of Hardware, Software and Technology with Surveillance Capabilities and/or parts/know-how'" (draft guidance). Although the draft guidance does not specify any particular government's use of surveillance technology, the release of this document is consistent with the Trump administration's recent focus on the use of surveillance by certain governments against civilian populations in trouble spots around the world. This guidance is not mandatory for export control and sanctions compliance purposes, but it is relevant for companies to consider in building and enhancing their compliance programs.

The State Department's draft guidance reflects an increased focus by the U.S. government on human rights concerns and entities that aid governments in the restriction of human rights and individual expression. Specifically, the draft guidance focuses on the export of items that "can be misused to violate or abuse human rights when exported to government end users or private end users that have close relationships with the government." The State Department notes that the use of surveillance hardware, software, and technology by governments around the world "to subject entire populations to arbitrary or unlawful surveillance" is of particular concern. As such, the draft guidance highlights due diligence considerations that all exporters should take into account when dealing in items with "intended and unintended surveillance capabilities" and urges exporters to "integrate human rights due diligence into export control compliance programs."

Notably, the draft guidance does not apply to just makers of items designed for surveillance, such as cameras or listening devices, but has much broader implications. For example, companies involved in software development, big data, social media, telecommunications, artificial intelligence, facial recognition, natural language processing, or other fields that could have unintended surveillance capabilities need to consider not just the intended uses of their products, but how parties could misuse their products to engage in human rights abuses or suppress free expression.

Companies have until 4 October 2019 to provide the State Department with feedback and comments; after that date, the State Department will remove the draft guidance from its website and work to finalize the draft.

While this guidance is not comprehensive or mandatory under U.S. law, it is illustrative of the approach that the State Department and other agencies or departments of the U.S. government (e.g., the U.S. Commerce Department's Bureau of Industry and Security (BIS) and the U.S. Treasury Department's Office of Foreign Assets Control (OFAC)) may take toward companies that export hardware, software, or technology with surveillance capabilities. In particular, this guidance could be used to assess the need to impose secondary sanctions under U.S. sanctions programs that target human rights abuses either under the Global Magnitsky Executive Order (which has a global reach) or under specific country programs (e.g., Venezuela, Nicaragua, the Democratic Republic of the Congo).

The draft guidance can be understood as a set of "best practices" that companies operating in this space should use to benchmark their own policies and procedures against the U.S. government's expectations for exporters of sensitive technologies that are susceptible to misuse in the wrong hands, and as a roadmap for steps that companies can take to mitigate these risks.

Items with intended or unintended surveillance capabilities

The draft guidance takes a broad approach to items covered and includes "hardware, software, technology, technical assistance, services, and/or parts/know-how that is marketed for or can be used for the monitoring, interception, collection, preservation and/or retention of information that has been communicated, relayed or generated over communications networks to a recipient or group of recipients" with intended or unintended surveillance capabilities. Examples provided by the State Department of such items include the following:

  • Spyware
  • Crypto-analysis products
  • Penetration-testing tools
  • Information technology products with deep packet inspection functions
  • Specialized computer vision chips
  • Noncooperative location tracking (products that can be used for ongoing tracking of individuals' locations without their knowledge and consent)
  • Cell site simulators (Stingrays)
  • Automatic license plate readers
  • Body-worn cameras
  • Drones and unmanned aerial vehicles
  • Facial recognition software; thermal imaging systems
  • Rapid DNA testing; automated biometric systems
  • Social media analytics software; gait analysis software
  • Network protocols surveillance systems
  • Devices that record audio and video and can remotely transmit or can be remotely accessed

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