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BIS Should Create List of Low-Level Tech Used for Human Rights Abuses, NGO Says

The Bureau of Industry and Security should explore several changes to the Export Administration Regulations to better prevent exported technologies from being used for human rights violations, including by maintaining a regularly updated list of EAR99 items that are likely to be misused by authoritarian regimes, said Annie Boyajian, vice president for policy and advocacy for Freedom House. Boyajian also suggested BIS engage more with civil society groups, including by creating a formal mechanism that would allow those groups to inform the agency about new ways technologies are being misused.

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Boyajian, speaking during a Sept. 12 Regulations and Procedures Technical Advisory Committee meeting, said the agency should create a continuously updated list of EAR99 items -- which are low-technology goods that are generally not subject to export licensing requirements -- that may be used for human rights abuses. BIS also should consider creating targeted item controls and end-use and end-user controls for some of those items, she said.

“Probably the real-time effort of that would be tremendous,” Boyajian said of constantly updating the list. But she said there’s “no shortage of creative new” ways foreign governments and others are using seemingly benign technologies for human rights violations.

For items already subject to item-based controls, BIS should consider adding “paragraph designations” or “technical notes” to their descriptions in the EAR to better “describe performance features or problematic uses” of those technologies. “We would certainly encourage Commerce to distinguish malign from benign uses whenever possible,” Boyajian said, specifically referencing facial recognition software, biometric technologies and other mass surveillance items.

She also said all BIS export licensing officers should be provided with comprehensive “watch lists” of countries whose governments or non-state actors are likely to misuse exported items. Those officers should also be able to reference a list of commodities, software and technology that aren’t yet controlled under the EAR for crime control reasons or as emerging or foundational technologies but “are being used by government and non-state actors to abuse human rights.”

Licensing officers also should be required to more carefully scrutinize exports destined to countries that Freedom House or other similar groups rate as “partly free” or “not free,” she said. Freedom House maintains a list of those countries and rates them according to their citizens’ “access to political rights and civil liberties," according to the organization's website.

BIS should also consider publishing license exceptions that outline a more specific set of “acceptable uses or acceptable end users,” she said, similar to a “white list approach.” Boyajian said Freedom House -- a nonprofit that advocates for issues surrounding democracy, political freedom and human rights -- can provide BIS with information to “figure out which governments are more or less likely to misuse exports and what potential misuse could look like.”

She also proposed a formal mechanism that would allow BIS to exchange information with civil society groups and nongovernmental organizations, adding that the Treasury and State departments have a similar process that helps advise them on the implementation of human rights sanctions. “I think that both government and civil society would say this has been a really effective mechanism for information sharing,” she said, “but also it has really helped improve the efficacy and impact of targeted sanctions.”

More engagement with NGOs would help BIS “have a fuller picture of the potential misuses of technologies,” Boyajian said, adding that the groups also are developing “initiatives” that can help exporters conduct due diligence.

But she also noted “how complex” it can be to continually find emerging technologies that should be subject to license restrictions. “Authoritarians are endlessly creative in ways to use products for repression,” Boyajian said, “and you obviously can't prohibit the export of everything.”