Oti, Coalition of Human Rights and Technology Organizations Offer Recommendations on Export Controls for Surveillance Technology

Washington, DC - Yesterday, New America’s Open Technology Institute, along with Access, the Center for Democracy & Technology, the Electronic Frontier Foundation, Human Rights Watch, and independent researcher Collin Anderson, filed comments with the Commerce Department on a proposed rule that would govern export controls for surveillance technology.

In filing these comments, the coalition hopes to ensure that rules to control the spread of surveillance technology to repressive regimes does not unintentionally restrict tools and activities that are crucial to maintaining cybersecurity. The proposed rule would fulfill the United States’ obligation under the international Wassenaar Arrangement to adopt controls to limit the transfer of two types of surveillance technologies that can be used by repressive regimes to monitor activists and perpetuate human rights abuses. But the proposal has been widely criticized by a number of groups and individuals who argue that its broad and ambiguous language could chill important security research.

To address concerns about overbreadth, the comments filed by OTI and others make a number of recommendations, with three main objectives:

1. To narrow application of the rule only to those circumstances that implicate the human rights and foreign intelligence concerns that provoked the original proposals;

2. To encourage adoption of focused licensing policies designed to identify circumstances where transfer of the technology in question would pose a risk to fundamental human rights; and

3. To reduce the likelihood of adverse effects on security research and practices.

OTI is a member of the Coalition Against Unlawful Surveillance Exports (CAUSE) and has written extensively on export controls in the past, supporting the adoption of narrowly tailored export controls to curb the spread of technologies that further human rights abuses. At the same time, OTI has been critical of the use of such restrictions to unnecessarily limit freedom of expression and last year submitted extensive implementation guidance to the U.S. government on the 2013 Wassenaar controls, which warned against the risks of adopting overbroad controls that could undermine security research.

A copy of the complete comments can be found here.

The following can be attributed to Danielle Kehl, Senior Policy Analyst of New America’s Open Technology Institute:

“The uncontrolled export of surveillance technologies to repressive countries poses a real threat to human rights. We support the goal of the original Wassenaar controls, which was to make it harder for Western companies to sell tools like FinFisher to governments with a record of human rights abuses. But the concerns about how the U.S. government initially proposed to implement the controls are also legitimate, because if the rule is not properly tailored it risks sweeping up a wide range of additional technologies that should not be restricted by export controls. Our recommendations focus on how to clarify and narrow the rule so that it covers the surveillance technology in question without undermining security research or other cybersecurity tools.”

The following can be attributed to Laura Moy, Senior Policy Counsel of New America’s Open Technology Institute:

“While it is crucially important that we adopt controls that help prevent the sale of powerful surveillance technologies to repressive regimes, we must also ensure that such controls do not unduly burden the international community of security researchers and manufacturers of defense products. This is a difficult balance to strike. We greatly appreciate the Commerce Department taking on this challenge in a way that has been transparent and encourages public dialogue, including this comment period. We look forward to continuing to work with the Commerce Department to craft a rule that promotes human rights and respects security researchers.”