US Commerce Department Steps Up To Protect Human Rights, But More Can Be Done

Jennifer Brody is Deputy Director of Policy and Advocacy for Technology and Democracy at Freedom House.

From Iran to Uganda and Venezuela, Freedom on the Net outlines how governments are leveraging surveillance tools for their own repressive ends. This creates a chilling effect, with fear of retribution undermining people’s willingness to speak freely, associate, and assemble. This has serious implications for the state of democracy around the world, which is increasingly fragile as rights and civic engagement are under attack.

Fortunately, the US Commerce Department’s Bureau of Industry and Security (BIS) recently announced a proposal to help stem these abuses via US export controls. These proposed rules – supported by Freedom House and several civil society organizations – are a major advancement towards defending against the proliferation and misuse of surveillance technologies and holding malicious actors to account.

A big step in the right direction to protect human rights

There is a lot to applaud in the BIS proposed rulemakings.

For one, BIS proposes creating a new control for the malign use of facial recognition technology used for “mass surveillance and crowd scanning.” This aligns with civil society calls for years that facial recognition technology used in mass surveillance threatens human rights, and not only due to its chilling effect. These technologies also perpetuate discrimination against marginalized groups due in part to biased training data that often makes them unable to accurately identify dark skin. For example, in the United States, Black and minority groups are most at risk of being misidentified – facial recognition has a 95% inaccuracy rate in some instances.

Second, BIS proposes a new foreign-security end user control that encompasses a broad range of actors who may be complicit in human rights violations. This is a major advancement because, to date, the most visible BIS end user controls have been militaries. The new foreign-security end user control would include law enforcement bodies at all levels of government, including municipal, provincial, and regional. In addition, the new control would include persons or entities engaged in “arrest, detention, monitoring, or search,” and explicitly proposes controls for “analytic and data centers (e.g., genomic data centers), forensic laboratories, jails, prisons, detention facilities, labor camps, and reeducation facilities.” This is an extremely expansive definition that more accurately captures the diversity of actors, including non-government entities hired by foreign-security end users, that may be engaged in attacks on human rights.

Third, BIS proposes further restrictions to ensure that US persons do not abet foreign governments in the facilitation of human rights violations. These changes are essential to protect against, for example, former US National Security Agency employees working on behalf of foreign governments to surveil human rights defenders. This happened when the United Arab Emirates hired former US government hackers to spy on journalists and political opposition figures.

What else can BIS do to protect human rights?

While the proposed rulemakings are laudable, the US Commerce Department can still do more to protect human rights.

For one, BIS should create a control for all remote biometric identification technology used for mass surveillance and crowd scanning rather than just limiting the control to facial recognition technology. Indeed, tracking individuals via their eyes, voice, gait, or any other biometric identifier may also impact the human rights of religious, ethnic, and racial minorities, political dissidents, and other marginalized groups. For example, pseudo-scientific emotion recognition technology in China (that draws from biometric indicators) places marginalized groups, like Uyghurs, especially at risk, and violates many human rights, including the right to non-discrimination.

Second, BIS should enhance its transparency reporting by publishing its Annual Country Licensing and Trade Analysis every six months and by covering a greater number of countries. It would also be helpful for BIS to provide a breakdown of specific technology exports that have a crime control number, like the proposed facial recognition technology control. This would help civil society, media, academia, and other actors track where and to whom US items are exported, which can inform research and advocacy efforts.

Generating momentum on the global stage

The US Commerce Department’s proposed rules serve as a helpful model for export control authorities around the world that seek to combat the abuse of surveillance technologies. Indeed, the surveillance technologies market is a global problem that requires international cooperation, especially from countries like the US that develop many of these technologies. For these reasons, it is incumbent on the US to continue to work with like-minded governments to this end, such as through the Joint Statement on Efforts to Counter the Proliferation and Misuse of Commercial Spyware, which explicitly notes the importance of export controls, and the Export Controls and Human Rights Initiative. The UK and France-led Pall Mall Process, of which the US government is a signatory, also seeks to leverage export controls to combat the misuse of surveillance technologies.

The US Commerce Department’s new proposed rules are a step forward in protecting human rights and demonstrating US leadership in ensuring exports are not misused to commit abuses. We urge the Department to promulgate these rules without delay, and we urge other democracies to take similar steps in updating their export control regimes.