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Review of Controls for Emerging Technology

[UPDATE: read my COMMENT! I am hoping this comment will be very useful to anyone else submitting comments.] [UPDATE: BIS has extended the deadline for comments until 10 January 2019.]

Dear Emerging Security Community,

We have exactly one month until January 10th, 2019 for our voices to be heard regarding how the United States defines and identifies emerging technologies of security concern.

Most people don’t know this, but earlier this year the US Government (USG) installed its very first permanent dual-use export control system,* replacing the yearly temporary authorizations that the President has made since 2001 to prop up the expired Export Administration Act of 1979. As part of the Export Controls Act of 2018, Section 1758 outlines the responsibilities of the new Emerging Technology Technical Advisory Committee (ETTAC), which is replacing the Emerging Technology and Research Advisory Committee (ETRAC). ETTAC is the government’s latest effort to try to grapple with the fuzziness between areas of science and technology that are clearly security concerns (like tanks, missiles, and aircraft carriers) and those that are not…(like feathers). There’s a much longer history to ETTAC, and why we are stuck with export controls as a primary tool for governing it in the US, but that’s for another post (and my book!). Right now, what you need to know is that this Committee, and the part of the government tasked with the public-facing governance of security concerns in science and technology (The Department of Commerce’s Bureau of Industry and Security), are looking for help in figuring out how to think about the governance of emerging technology.

As near as I can tell, ETTAC members have not been announced yet (applications were due September 7th), but today, the Department of Commerce announced that it is already making work for ETTAC by requesting public input on the what criteria should be used to define and identify emerging technologies of security concern.

I highly encourage everyone to submit a comment. While you think about what to say, here are some things to keep in mind:

  • While anything can be considered a potential security concern, governing security concerns is always done with a specific mechanism of governance that can only see security concerns in a particular way. The way of governing in focus here is export controls, and as such, any process you recommend must take into consideration: “The development of emerging and foundational technologies in foreign countries; The effect export controls may have on the development of such technologies in the United States; and The effectiveness of export controls on limiting the proliferation of emerging and foundational technologies in foreign countries.” So if export controls aren’t going to be useful to governing security concerns of the area of innovation you’re focused on, by all means say that, but recognize that that’s not exactly what is being asked for. (That said, if a thousand people point out that export controls are not a generally useful governance mechanism in emerging technology situations, maybe a bigger conversation can be opened up).
  • They already have their eye on specific technical areas, and they include all the Greatest Hits of Emerging Technology in 2018: synthetic biology, quantum computing, machine learning, artificial intelligence, 3D-printing, and many more.
  • The USG is still planning on upholding NSDD-189, which carves out “fundamental research” as an area outside of the remit of export controls, so there’s no need to call for the government to not overly stifle research…That being said, it might also be time to revisit NSDD-189, as I and others have pointed out in recent discussions on dual-use issues within the life sciences.
  • Your comments will be public. This has the significant possibility of raising information hazards, as outlining in detail exactly why a specific technology is a security concern may itself be a security concern.
  • Your voice CAN make a difference! A similar proposed rule making to this one happened in 2005, when Commerce sought comments on a change to their “deemed export” provision. 310 comments later, they did not make the change, but instead formed the Deemed Export Advisory Committee (DEAC). DEAC, in turn produced a report that argued, among other things, to for the need to build higher walls around a smaller set of objects of security concern. Commerce again asked for public comment on implementing the DEAC recommendations, including the establishment of the ETTAC’s predecessor. Those comments helped to establish how ETRAC worked for nearly a decade. Now it’s time again to provide input into this process.

Also, the government welcomes comments specifically on:

  1. How to define emerging technology to assist identification of such technology in the future;
  2. criteria to apply to determine whether there are specific technologies within these general categories that are important to U.S. national security;
  3. sources to identify such technologies;
  4. other general technology categories that warrant review to identify emerging technology that are important to U.S. national security;
  5. the status of development of these technologies in the United States and other countries;
  6. the impact specific emerging technology controls would have on U.S. technological leadership;
  7. any other approaches to the issue of identifying emerging technologies important to U.S. national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control.

I’ll be getting my comments together in the next few weeks. My comments are now available. If you want to synchronize on this, send me a note or find me on Twitter.

* While export controls have a long history, never has the US accepted that dual-use export controls needed permanent legislation. The previous Acts authorizing dual-use controls all had specified lifetimes, and required either Congressional renewal or the President to invoke the International Emergence Economic Power Act (IEEPA).