Should human rights concerns be a consideration for exporters engaged in international trade? New draft guidance proposed by the U.S. Department of State aims to provide a potential roadmap for tackling this issue.

On September 4, 2019, the State Department’s Internet Freedom and Business & Human Rights Section of the Bureau of Democracy, Human Rights, and Labor released draft guidance for “Surveillance Technology” exports.[1] If adopted, this guidance could add another layer to the export control process.

The stated goal of this new guidance is the prevention of intended or unintended human rights abuses that could result from the export of surveillance technology to foreign government end-users or private individuals with ties to a foreign government. According to the draft guidance, there is a major risk that surveillance hardware, software, and technology exports could be misused to undermine the fundamental freedoms of a country’s citizens through arbitrary and unlawful surveillance.

In order to combat the potential for misuse, the draft guidance calls upon exporters to perform “due diligence and risk mitigation” by looking for certain human rights “red flags” and developing risk mitigation measures before exporting surveillance products to certain countries. These measures could include reviewing the laws and practices of an end-user government, reviewing a country’s human rights record, creating contractual or procedural safeguards as part of any transaction, or reviewing all potential end-users of an exported product.

There is some question as to how effective this guidance will be, given that the draft guidance states that it is not mandatory nor is it intended to supersede any regulatory authority of other export controls regulators. It seems likely that many exporters, whether it be due to financial constraints or lack of resources, may ultimately choose not to follow the guidance without a mandatory requirement.

Nevertheless, despite the likelihood that the current effectiveness of the guidance may be limited, the State Department’s guidance should certainly be taken seriously. The guidance provides evidence that the U.S. government is beginning to take the issue of restricting exports of surveillance technology more seriously. Other governments are already moving in this direction as well; for example, the EU is expected later this year to push for further regulation of exports of facial recognition technology.

Given both the draft State Department guidance and a global push towards regulating exports of surveillance technology, exporters involved in the export of “surveillance technologies” would be wise to begin taking steps to, at a minimum, assess the feasibility of implementing elements of the State Department guidance and identify opportunities to build or improve upon existing business processes that incorporate elements of this guidance.