export-controls 12 September 2019

US government publishes draft guidance on export of surveillance kit

‘Items with intended and unintended surveillance capabilities have the vast potential to provide positive contributions to a country’s economic, defense, and societal wellbeing…At the same time, these items can be misused to violate or abuse human rights when exported to government end-users or private end-users that have close relationships with the government.’

So says the preamble to detailed new guidance published by the US State Department on the export of such equipment, which includes, inter alia, a checklist of due diligence considerations, red flags, and resources for assessing the human rights records of potential export markets – and a note that exporters should ‘include human rights safeguards language in contracts. The language should be specific to human rights risks identified and/or associated with the item,’ and that contracts should ‘…include protections for the exporter’ including ‘export compliance clauses requiring end-users to agree to comply with applicable U.S. export control laws and regulations; limitations on how the item can/cannot be used; how and by whom collected data is to be analyzed, stored, protected, and shared; and reserve the exporter’s right to terminate access to technology, deny software updates, training, and other services and/or unilaterally terminate the contract if the exporter uncovers (in its sole discretion) evidence that the technology is being misused.’

But, it notes, ‘This guidance is…not meant to address any requirements under export control laws. Exporters are responsible for obtaining appropriate licenses and/or approvals for the export of controlled dual-use items, defense articles and defense services.’