Export Controls and Human Rights: An Emerging Technology Agenda

Without phishing or clicking, malware infects users’ devices, combing personal messages, complete email history, and all videos and photos, in what functions as a veritable data vacuum. Far from science fiction, these dystopian technology tools are already being used to surveil and threaten journalists, harming human rights and quashing political dissidence. While there has undoubtedly been immense progress on human rights since the inception of the Universal Declaration of Human Rights 75 years ago, emerging technologies call for a wider aperture on how the trade toolkit can protect human rights. One critical instrument in this toolkit is export controls.

Export controls have increasingly moved to the forefront of foreign policy, particularly in the context of advanced semiconductors. However, through controlling certain advanced technologies, particularly those with potential military end-uses, export controls can reduce the ability to contravene human rights protections. Export controls began to confront human rights issues in the 1970s. In 1974, public outcry emerged following news that a U.S. company considered selling voice recognition technology to the USSR, resulting in the first human rights export controls. The United States continued to issue similar human rights-based controls throughout the decade, largely unilaterally since other states and the multilateral export control regimes did not mirror these U.S. efforts.

The application of export control instruments to human rights issues reemerged in the 2010s surrounding the Western export of surveillance equipment used against protesters during the Arab Spring. These revelations eventually led France and the United Kingdom to lead negotiations that added some intrusion software and intellectual property network communications surveillance systems to the control list of the Wassenaar Arrangement, a multilateral export control regime. Even with these additions, a 2014 letter urged a group of NGOs, including Human Rights Watch and Amnesty International, to carry forward momentum and control other relevant human rights items, such as voice recognition technology.

The use of export controls to protect human rights has indeed grown. In 2020, BIS revised the Export Administration Regulations (EAR), requiring that all controlled items, except for those in short supply, take into account human rights implications. Whereas controls related to human rights had mostly been relegated to the crime control justification, this change significantly expanded the number of human rights-related controls. The Entity List restricts the export of U.S. technologies to listed firms, and Entity List additions justified on human rights violations have also grown, including recent additions of Burmese, Chinese, Nicaraguan, and Russian firms. The United States has also added the NSO group, which produces the Pegasus spyware, to the Entity List.

A leap forward in the efforts to apply export controls to human rights occurred in 2021 at the first Summit for Democracy, where the United States, Australia, Denmark, and Norway announced the Export Controls and Human Rights Initiative. This initiative has since expanded to include 21 additional countries. It creates voluntary shared standards for the export of technologies that can be used by authoritarian states to perpetuate abuse, invade citizens’ privacy, and stymie political dissent. In March 2023, countries announced a voluntary Code of Conduct, which encourages states to ensure that dual-use technologies are not exported to end-users who could abuse them.

This effort falls short of comprising a human rights-focused export control regime but nonetheless represents an important step towards integrating human rights considerations in the strategic trade context. It also suggests a move away from future mini or plurilateral regimes based solely on the types of controlled technologies and towards the use of export control instruments for purposes beyond non-proliferation goals.

Export controls are only one part of an expanded strategic trade toolkit aimed at protecting human rights. For example, the Biden administration’s August 2023 proposal to create an outbound investment notification regime specifically targets emerging technologies with mass surveillance capabilities, aiming to restrict U.S. capital and know-how from advancing foreign surveillance capabilities.

While export controls as a tool to combat human rights abuses have grown less taboo, the ability of authoritarian regimes to obtain the items, technology, and capital needed to advance surveillance regimes requires broad input from other countries. For example, authoritarian states can obtain low-tech items, such as handcuffs, batons, and stun guns, from alternative sources.

For more advanced items, multilateral export controls could be effective at preventing misuse, but this assumes lack of foreign availability of similar items. For example, Chinese companies such as Huawei, Hikvision, Dahua, and ZTE are major suppliers of artificial intelligence surveillance technology that can be used to violate privacy and track dissidents. The United States can sanction these companies or block the export of U.S. surveillance technology to China, but it cannot easily stop them from using or selling their domestically produced technology.

As the world enters a new and unchartered territory of technology proliferation, export controls and investment restrictions can serve as valuable tool for protecting human rights and combating digital surveillance, but these measures cannot succeed without durable international cooperation.

Emily Benson is the director of the Project on Trade and Technology and senior fellow with the Scholl Chair in International Business at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Catharine Mouradian is the program coordinator and research assistant with the Project on Trade and Technology at CSIS.