Citing national security concerns, the Commerce Department is proposing initiatives that could impose the government’s first regulatory regime for the use of artificial intelligence technology. Other cutting-edge technologies are also under consideration for enhanced export controls, according to a recently published advance notice of proposed rulemaking (ANPR).

The Commerce Department’s Bureau of Industry and Security controls the export of “dual-use and less sensitive military items” through export regulations, described in the Defense Production Act of 1950. These responsibilities include the Commerce Control List.

Congress, with the Export Control Reform Act of 2018 (ECRA), authorized the Commerce Department to establish appropriate controls on “emerging and foundational technologies.” Under the Act, these technologies are defined as those essential to the national security of the United States and are not already described in the Defense Production Act. Emerging and foundational technologies, as mandated by the ECRA, will be determined by an interagency process that considers both public and classified information, as well as information from BIS’ Emerging Technology Technical Advisory Committee and the Committee on Foreign Investment in the United States (CFIUS).

In identifying these technologies, the review process must consider: the development of emerging and foundational technologies in foreign countries; the effect export controls may have on the development of these technologies in the United States; and the effectiveness of export controls on limiting the proliferation of the technologies in foreign countries.

Once identified, the Commerce Department has authority to establish controls on the export, re-export, or transfer (in-country) of these technologies. In determining the appropriate level of export controls, it must consider the potential end-uses and end-users of the technology and countries to which exports from the United States are restricted. While there is discretion to set the level of export controls, at a minimum they must require a license for the export of emerging and foundational technologies to countries subject to a U.S. embargo.

“Controls on exports of technology are a key component of the effort to protect sensitive U.S. technology, [and] many sensitive technologies are listed on the CCL, often consistent with the lists maintained by the multilateral export control regimes of which the U.S. is a member,” the ANPR, published in the Federal Register last week, says. “Certain technologies, however, may not yet be listed on the CCL or controlled multilaterally because they are emerging technologies. As such, they have not yet been evaluated for their national security impacts.”

The notice of proposed rulemaking seeks public comment on the criteria for identifying emerging technologies that are essential to U.S. national security. Due by Dec. 19, they “will help inform” the process, expected to result in proposed rules for new Export Control Classification Numbers on the Commerce Control List.

Specific emerging technologies the Commerce Department wants to evaluate on the basis of “whether they are essential to the national security of the U.S.,” include:

  • Artificial intelligence and machine learning technology;
  • AI cloud technologies and chipsets;
  • biotechnology, genetic engineering, and neurotech;
  • computer vision (object recognition, image understanding);
  • speech and audio processing (speech recognition and production);
  • natural language processing (machine translation);
  • audio and video manipulation (voice cloning);
  • Position, Navigation, and Timing (PNT) technology;
  • microprocessor technology, such as Systems-on-Chip (SoC) or Stacked Memory on Chip;
  • data analytics technology, including visualization and context-aware computing;
  • micro-drone and micro-robotic systems;
  • self-assembling robots and molecular robotics;
  • brain-computer interfaces; and
  • advanced surveillance technologies, such as: face-print and voice-print technologies.

Public comments are sought on the following:

  • How to define emerging technology to assist identification of such technology in the future.
  • Criteria to apply to determine whether there are specific technologies, within the identified general categories (or otherwise), that are important to U.S. national security.
  • The development status of these technologies in the United States and other countries.
  • The impact specific emerging technology controls would have on U.S. technological leadership.

The Commerce Department is also seeking “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.

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