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***Morton Sklar, Executive Director***

#### Theresa Harris, Deputy Director 

#### Monique Beadle, Refugee Project Director 

#### Lynsay Gott, Equal Justice Works Fellow

May 22, 2008

Mr. Matthew S. Borman

Acting Assistant Secretary for Export Administration

U.S. Department of Commerce

Bureau of Industry and Security

Regulatory Policy Division

14^th^ Street and Constitution Ave., N.W.

Room H-7205

Washington, D.C. 20230

**RE: Request for Public Comments on Crime Control License Requirements
in the Export Administration Regulations**

Dear Mr. Borman:

In response to the U.S. Department of Commerce's Request for Public
Comments on Crime Control License Requirements in the Export
Administration Regulations, as set out in the Federal Register of March
19, 2008, the World Organization for Human Rights USA respectfully but
emphatically suggests that major changes are required in many critical
aspects of the current regulations and procedures, over and beyond the
type of changes in the categories and descriptions of listed products
that your notice mentions. These broader changes are necessary if the
legal mandates of the Export Administration Act (EAA) and the
accompanying statutory restrictions on the exportation of products and
technologies that could be improperly used to contribute to major human
rights abuses by the People's Republic of China (PRC) and other highly
repressive regimes are to be properly and effectively monitored and
enforced by the United States Government. Our research and experience
indicate that many of the standards and restrictions currently in place
are not being effectively enforced pursuant to Congressional mandates,
due in large part to significant deficiencies in the general monitoring
and enforcement procedures and standards applied by the Bureau of
Industry and Security (BIS), as well as to insufficient clarity and
breadth of coverage in the enforcement regulations themselves. On April
15, 2008 we filed a formal complaint letter with your agency alerting
you to some key monitoring and enforcement deficiencies in your EAA
mechanisms and standards. A copy of this letter is attached.

As that April 15 complaint letter indicates, many of the restrictions
and prohibitions set out in the statutory provisions enumerated in our
complaint that limit export of products to China specifically, and to
other foreign governments with established records of major human rights
abuses more generally, are not being properly monitored and enforced by
your agency. A key aspect of any amendment to your regulations that you
consider must be further and more detailed clarification of the
underlying policies and standards applicable to these transfers, so that
U.S. companies will have a much clearer understanding of what their
obligations are, and what types of exports should be subject to
restrictions.

Consequently, while we strongly encourage BIS to update and
substantially strengthen the EAA regulations, it is important to note
that making minor updates and improvements in the regulations in and of
itself will not address key elements of the core problem, which deals
with more general needs associated with how compliance with the
statutory purposes is being monitored and enforced on a systematic
basis. The underlying purposes and goals of the EAA and accompanying
human rights statutes can not be achieved without a stronger commitment
on the part of the Department of Commerce to properly monitor and ensure
compliance with these standards, and adoption of a clearer set of
policies on what exports are prohibited and/or restricted. The
deficiencies that presently exist are only partly attributable to
problems with the regulations. In the absence of a strong commitment on
the part of the Department to making certain that all products and
technologies that are marketed to law enforcement agencies or that have
crime control, monitoring and surveillance capabilities that lend
themselves to human rights abuses will not be exported to repressive
governments, improvements in the regulations will not be sufficiently
effective. In short, a more substantial overhaul of BIS' procedures and
standards related to export control of items that can significantly
contribute to major human rights abuses is required, not simply an
updating and expansion of the product listings in the regulations.

Specifically, in response to some of the questions posed in the March
19, 2008 Federal Register Notice, Human Rights USA recommends the
following:

> **1. Clearer Standards on Prohibitions Against Export of Products and
> Technologies Marketed and Sold to Law Enforcement Agencies, or That
> Are Likely to be Used for Monitoring and Surveillance Activities,
> Where U.S. Laws Prohibit or Restrict Such Transfers.**

A variety of U.S. laws and statutory provisions make clear that certain
types of exports and uses of exported products are restricted and/or
prohibited under U.S. law as a result of U.S. foreign policy interests,
including the promotion of human rights throughout the world. BIS'
regulations should set out and incorporate the requirements and
prohibitions of each of these human rights statutory provisions in clear
and unambiguous terms, and explain how they relate to the licensing
procedures.

The licensing requirements on crime control products were instituted for
the express purpose of promoting U.S. security interests and the
observance of human rights around the world. 15 C.F.R. § 742.7. In
repressive countries abroad, crime control and police equipment, and the
misuse of law enforcement processes, too often are used to track
dissidents, leading to such severe human rights abuses as arbitrary
detention, torture and extra-judicial killings. The export licensing
requirements and prohibitions on the exportation of crime control
equipment are intended to ensure that American corporations are not
complicit in the human rights abuses committed by foreign governments
and their agents by providing the equipment that facilitates the
identification and abuse of the victims. The requirements also
symbolically reaffirm the importance the United States places on the
observance of international human rights standards by foreign
governments.

Providing clear guidance on the various human rights statutory
provisions subject to BIS enforcement procedures includes placing
greater emphasis on the likely end-user of a product, instead of
focusing exclusively on the nature of the product being transferred. It
needs to be understood that any transfers to law enforcement entities
and/or those that are used for law enforcement purposes, by definition
suggests the likelihood of human rights abuse in highly repressive
regimes. Due to the rapid pace of technological advancement, any list of
prohibited technologies faces the possibility of becoming quickly
outdated as newer technologies emerge. However, if BIS enforces the EAA
and associated human rights statutes with a proper concern for the
underlying purposes for which these statutory provisions were adapted,
and with clear standards that restrict or prohibit all types of
transfers likely to lead to human rights violations, manufacturers will
be unable to justify the export and marketing of their products to law
enforcement agencies heavily linked to major human rights abuses, as
they are currently doing.

> **2. Clarification That Dual-Use Characteristics of a Product Do Not
> Insulate It from Export Restrictions and Controls Where Improper and
> Prohibited Use is Likely, or the Potential for Such Misuse Exists**

Under the current regulatory system, U.S. manufacturers are exporting
unlicensed products and technologies to repressive countries, and
marketing them expressly for crime control purposes linked to human
rights abuses, claiming the exportation is exempt from trade
restrictions and associated licensing requirements because the products
have "dual use" characteristics, and therefore can be treated as
civilian sales of generic goods not subject to restrictions, despite the
ways in which they end up being marketed and used. BIS must make clear
that dual or multiple use characteristics do not insulate proposed
transfers from review and licensing requirements where a high potential
exists for uses related to law enforcement and to the violation of human
rights by the recipient foreign government or its agents.

For example, at a recent security trade show in the People's Republic of
China (PRC), Cisco Systems, Inc. aggressively marketed its "policenet"
technology as a way to facilitate the tracking and identification of
Internet users. This technology allows the police to access an
individual's records from various localities, including that
individual's family history, political behavior, Internet use,
photographs and fingerprints. In addition, it allows the police to read
the individual's private emails. This technology's obvious
susceptibility to misuse leading to human rights abuses makes it
necessary for the CCL to clearly require export licenses for this type
of dual use technology. Exempting dual use technologies from licensing
requirements, or simply permitting companies to self-designate the
nature of exports, and to self-police compliance with the applicable
statutes, would severely impair the effectiveness of the regulations and
the fulfillment of the regulations' goals of promoting the observance of
human rights. Such an exemption would ignore the realities of the
present situation, that corporations are expressly marketing and selling
their dual use technology for prohibited law enforcement and human
rights abuse purposes.

Companies can not be allowed to make these determinations on their own,
with no monitoring and supervision by BIS, since the profit motive
temptation to treat products as exempt from controls because of their
"generic" or "dual use" nature is simply too great. BIS must require all
transfers to be reported and made public, and there must be an effective
independent mechanism to assess the judgments being made as to the
appropriate nature of the exports taking place. Clearly, too many U.S.
companies have been taking advantage of BIS' currently lax policies and
standards by simply treating their exports as exempt and not seeking the
required licenses. That deficiency must be addressed in the regulation
amendments.

The Validated End-User program currently in force with respect to dual
use military exports to the PRC provides a possible template for
reducing any increased economic costs to American corporations as a
result of tighter controls on the export of dual use technology. Under
such a program, U.S. exporters could sell dual use products to customers
in repressive countries without obtaining a license after the
prospective buyer has been validated by the Department of Commerce as a
legitimate civilian purchaser, and the Department has certified that
selling to the buyer would not increase the likelihood of human rights
violations.

3.  **Broadened and More Specific Product Categories Subject to
    Licensing Requirements.**

In addition to the broader policy guidance amendments to the regulations
that we are proposing, some updates and improvements in the product
category listings also are required. BIS must prohibit the exportation
of electronic products and technologies that are currently being widely
used by repressive governments to identify and arbitrarily and unjustly
arrest and criminally prosecute journalists, human rights advocates and
democracy advocates for simply exercising their free press, speech and
association rights through use of the Internet and other electronic
means. The current regulations are drastically outdated. Recent
technological developments, including biometric devices, integrated
security systems and firearms training software are far more likely to
lead to human rights abuses when placed in the hands of repressive
governments than are the products presently listed on the CCL. The EAA
regulations must be updated to incorporate these technological
innovations.

The updated and expanded prohibitions should include broader
descriptions of specific categories of prohibited exports, not simply a
list of particular products. Prohibiting products rather than categories
of technology invites corporations to seek out loopholes and continue
exporting products that violate the EAA though they do not appear on the
CCL. In addition, the updated categories must prohibit the transfer not
only of equipment and technology linked to use of the Internet, but
other forms of monitoring and surveillance equipment that is being or
can be used by the recipient repressive governments and their agents to
restrict freedom of the press, speech and association, or to crack down
on other human rights.

**Conclusion**

Human Rights USA strongly urges BIS to take a much broader approach to
its consideration of amendments to its regulations and standards on
export control, and to adopt more comprehensive changes to its
regulations to more fully bring its enforcement standards and
activities, and its monitoring and enforcement procedures, more into
line with a number of Congressional statutes mandating human rights
observance in the way that U.S. companies handle their product
exportation decisions.

Sincerely,

Morton Sklar

Executive Director

Theresa Harris

Deputy Director

Cynthia Andrus

Legal Intern, George Washington University Law School