Corporate Accountability Lab has been working on blocking imports into the United States of goods produced using forced labor, relying largely on Section 307 of the Tariff Act of 1930. This blog looks at possibilities for using controls on exports as a way of advancing human rights. The human rights issues here do not center on how goods were produced; they center on how goods are likely to be used. Recent statements joined by the United States emphasize the need to be proactive in ensuring that advanced technologies are not used for such purposes as state-sponsored, repressive cybersurveillance. The technologies at the heart of this effort include artificial intelligence and advanced surveillance technologies (e.g., facial recognition technologies).
If you suppose that concerns about China are behind all this, you're right.
The United States and its international partners have long maintained controls on the export of so-called "dual-use" items, that is, goods that have both a military and non-military use, with a view to keeping them away from certain countries, entities, and/or uses. These items are regulated differently than "arms"--when an export license is required for dual-use items, regulators are required to balance a wide range of policy issues, including commercial interests, in determining whether to permit exportation. Thus, the Bureau of Industry Security ("BIS") at the US Commerce Department, not the US Defense Department or State Department, takes the lead in the licensing process, although it does consult with a wide range of other agencies. When US companies have been concerned that lack of access to foreign markets is making their products uncompetitive, they have often found BIS to be sympathetic.
Companies seeking to export US technology must check first to see whether they need to obtain an export license. BIS has developed a rulebook, the Commerce Control List, which gives a classification number for each technology controlled for export and explains the licensing requirements that apply to the technology. Whether or not a license is required is based on the following factors: (1) what is the classification number of the item; (2) where is it going; (3) who is the end-user; and (4) what is the end use. This process has been in place for several decades, despite the fact that its source of statutory authority has shifted. The United States works with like-minded countries to harmonize export controls to the extent possible, under what is known as the Wassenaar Arrangement.
Just a few years ago, in 2018, US export controls were enhanced. At that time, both the White House and Congress were deeply concerned about China's ambitious state-led industrial efforts, such as its Made in China 2025 (MIC2025), which sought to advance strategic industries in China in part by obtaining technology and expertise from US and other foreign firms. The goal of those efforts was to make China a leader in the technologies thought to be important to future commercial, governmental, and military capabilities.
In response, the White House imposed tariffs on imports from China and Congress enacted reforms of trade and investment law, including the Export Control Reform Act ("ECRA"). ECRA tightened existing US dual-use export controls and created a framework for restricting the export of "emerging and foundational" technologies. ECRA began with a "Statement of Policy," in which it put the new initiatives into context, embracing among other things the objective of "carry[ing] out the foreign policy of the United States, including the protection of human rights and the promotion of democracy."
There was strong pushback from tech industries against new export restrictions, but a framework for the development of new rules was in place. In November 2018, the Commerce Department published an Advance Notice of Proposed Rulemaking seeking public comment on criteria for “identifying emerging technologies that are essential to U.S. national security, for example, because they have potential conventional weapons, intelligence collection, weapons of mass destruction, or terrorist applications or could provide the United States with a qualitative military or intelligence advantage.”
Fast forward to September 2021. At its inaugural meeting in Pittsburgh, the US-EU Trade and Technology Council issued a joint statement, which emphatically underscores the importance of protecting the environment, promoting workers' rights, combating child and forced labor, and cooperating on the "development and deployment of new technologies in ways that reinforce our shared democratic values, including respect for universal human rights..."
Annex II to the Pittsburgh statement is entitled "Statement on Export Control Cooperation." The first principle in the annex recognizes the importance of effective export controls for dual-use items, including transfers of sensitive technologies, because such controls are necessary to ensure compliance with US and EU international obligations and commitments as well as "regional peace, security, stability and respect for human rights and international humanitarian law." The Annex emphasizes the need for export controls of technologies, including cyber-surveillance technologies, that "may be misused in ways that might lead to serious violations of human rights or international humanitarian law."
In addition, the Pittsburgh statement specifically calls for outreach to diverse stakeholders: "Robust engagement with business, thought leaders, labor organizations, non-profit organizations, environmental constituencies, academics, and other stakeholders that form the civil society at large is essential to this work."
On December 10, 2021, at the Summit for Democracy, the United States, Australia, Denmark, and Norway announced the Export Controls and Human Rights Initiative, explaining: “authoritarian governments increasingly are using surveillance tools and other related technologies in connection with serious human rights abuses, both within their countries and across international borders, including in acts of transnational repression to censor political opposition and track dissidents.” Canada, France, the Netherlands, and the United Kingdom have expressed support for this initiative.
According to a White House statement, the initiative will seek to address the misuse of these technologies by:
Working to develop a voluntary written code of conduct intended to guide the application of human rights criteria to export licensing policy and practice.
Building policy alignment with like-minded partners that leads to common action, and concrete and practical outcomes.
Bringing together policy makers, technical experts, and export control and human rights practitioners to ensure that critical and emerging technologies work for, and not against, democratic societies.
During the Summit for Democracy’s Year of Action, we will shape this Initiative collaboratively with our partners and explore how best to strengthen domestic legal frameworks; share information on threats and risks; share, develop and implement best practices; and improve others’ capacity to do the same. Over the coming year, we will also engage in further coordination with other governments, as well as consult with industry and academia.
Although the reference to a "voluntary" written code of conduct suggests that there will be no consequences for failing to implement it, the fact is that governments have enormous flexibility in designing and implementing export controls. Bringing policymakers together with human rights advocates is a step in the right direction, as is the multilateral nature of the overall effort.
There are at least two ways in which human rights advocates can inform this process. First, we can work to center the voices of those who are likely to be affected by exports of the technologies in question. Second, we can work to broaden the understanding of what it means to use technology as an instrument of repression, potentially calling into question practices in which the US government and (some of) its international partners have been engaged. In other words, we should consider this an opportunity to broaden and deepen the conversation about technology and human rights.
Dean Pinkert is a Special Advisor at CAL.
