The United States (‘US’) has always put national security interests at the threshold of most proposed legislation when it comes to information and technology law. Recently on August 27, 2020, the US Department of Commerce (‘DoC’), Bureau of Industry and Security (‘BIS’) published an advance notice of proposed rulemaking (‘ANPRM’) for the purpose of identification and review of controls for certain foundational technologies (‘Foundational Tech ANPRM’), which has been invited for comments by October 26, 2020. Such foundational technologies shall be eminent for US national security.
Even though the process is inclined towards the side of import and export controls, such technologies involved in the process of exchange may have a critical impact on surveillance and the workings of intelligence agencies in the US. ‘The BIS’ is involved in the control of transfers and identification of foundational technologies for the US. Such foundational technologies are defined as technologies that may warrant stricter controls if a present or potential application poses a threat to the national security of the US. For this purpose, BIS evaluates specific items through an interagency process. In this regard, Section 1758 of the Export Control Reform Act (‘ECRA’) provides that the DoC shall establish controls over foundational technologies. Emphasis shall be placed on the difference of critical technologies under Section 721(a)(6)(A)(i)-(v) of the Defence Production Act of 1950 (‘DPA’) which shall not be attributed as foundational or emerging technologies. Previously, on November 19, 2018, the BIS had also introduced an ANPRM for the identification of emerging technologies (‘Emerging Tech ANPRM’).
While the Foundational Tech ANPRM does not identify any list of items that could be subject to ECRA and BIS future controls, the Emerging Tech ANPRM had identified certain specific emerging technologies that may be essential for the US national security interests. These contained some of the following:
Artificial Intelligence (‘AI’) and machine learning technology, such as:
(i) Neural networks and deep learning (e.g., brain modelling, time series prediction, classification);
(ii) Evolution and genetic computation (e.g., genetic algorithms, genetic programming);
(iii) Reinforcement learning;
(iv) Computer vision (e.g., object recognition, image understanding);
(v) Expert systems (e.g., decision support systems, teaching systems);
(vi)Speech and audio processing (e.g., speech recognition and production);
(vii) Natural language processing (e.g., machine translation);
(viii) Planning (e.g., scheduling, game playing);
(ix) Audio and video manipulation technologies (e.g., voice cloning, deepfakes);
(x) AI cloud technologies; or
(xi) AI chipsets.
A detailed version of the list of identified emerging technologies can be found here.
The BIS has asked for public comments and industry support to identify foundational technologies similar to the above list which shall be subject to additional controls, particularly any examples of “enabling technologies, including tooling, testing, and certification equipment, that should be included within the scope of a foundational technology”.
The Foundational Tech ANPRM also hints that such foundational technologies could also include items and technologies that are already controlled for military end-use or military end-users. Currently, the BIS is looking to establish controls based on end-use/users rather than technology-based controls. For this purpose, foundational technologies shall also include commodities and software as specified in the Export Administration Regulations (EAR). The Foundational Tech ANPRM also states that enabling foreign intelligence collecting activities could also be brought within the scope of such comments. The key difference in this regard between emerging technologies and foundational technologies is:
Emerging technologies are those which have not yet become fully marketable and maybe in the innovations/development stage.
Foundational technologies are those which have are already in commerce and are more mature in levels. Thus, it becomes essential to establish control of foundational technologies while considering their supply chains.
BlockSuits Comments
The identification of foundational technologies is an immersive process that shall take into account the interactions of many intelligence and military agencies in the US. The attributes list of emerging technologies is still on a rolling basis for the past 2 (two) years. With the addition of foundation technologies such as surveillance tools, AI sensors, intelligence tools, would broader the application of the use of such technologies in the US. Given the current lack of data protection standards in the US, such surveillance tools will definitely add up to the consideration of the ‘adequacy’ status.
Authored by Shivani Agarwal, Founder, and Samaksh Khanna, Co-founder.
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