In the coming weeks, the Commerce Department plans to announce a notice seeking comments on how it should draw up export control rules for so-called foundational technologies, similar to an effort the agency launched in November 2018 for a category called “emerging” technologies.

The rules were mandated after Congress passed the 2019 defense authorization act calling on the Commerce Department to establish export controls on “emerging and foundational technologies” that are critical to U.S. national security. But tech companies, universities, and research labs across the country continue to be alarmed that overly broad export restrictions could ultimately hurt American technological superiority.

At a recent event held by the Bureau of Industry and Security, the agency within the Commerce Department that is responsible for export controls, U.S. officials told a large group of industry executives to be ready with their comments and concerns once the proposed rule making is announced.

During a question-and-answer session, a technology executive asked how the department intended to make sure that export controls on emerging and foundational technologies don’t end up including what’s freely available on open-source platforms online, which tech companies routinely use as building blocks to create new applications.

“You’ve just summed up our challenges,” Richard Ashooh, assistant secretary for export administration at BIS, told the questioner. For both categories of technologies, the agency has examined controls already in place for other technologies, and “we have learned that in our operating environment, circumstances can drive the change.”

The department is not going to make precise definitions of emerging and foundational technologies leading up to categorical controls, Ashooh said. “That’s not what’s going to happen … controls will be iterative” or imposed in incremental steps, he said.

Keeping the U.S. advantage

But the department’s effort is aimed at making sure that other countries don’t gain an advantage over the United States, said Nazak Nikakhtar, acting undersecretary for industry and security. Acting quickly to place controls is essential because the United States is “neck and neck” with competitors and must assess “what can we do now to make sure that we have the tools to basically stay ahead without giving our adversaries a competitive advantage,” she said.

Nevertheless, industry executives, research institutions and universities that draw foreign students to the United States in science and technology disciplines told officials at the conference that they remain concerned about how the rules will be crafted.

Several questioners at the event held in Washington asked the department to consider allowing 90 days for companies and others to comment on the proposed rules, but Nikakhtar said extending the comments period is likely to leave the government “inundated with comments.”

Definitions of emerging and foundational technologies are critical to the discussion, an executive of an Ireland-based automotive technology company with large U.S. operations said, speaking on the condition of anonymity because he did not wish to appear critical of the U.S. government.

The challenge lies in figuring out whether a technology’s very capability is considered crucial or whether specific applications of the technology ought to be the parts regulated, the executive said.

A computer, for example, by itself can be used for both good and bad purposes — one could use a word-processing software to write a novel or use it to prepare a weapons manual, the executive said. A computer and various software is therefore simply a medium to process data, and “that’s our concern,” he said.

Automated or self-driven cars are not operated by a single technology but by a suite of sensors and software that enable lane detection and adaptive cruise control and can assess a driver’s state of alertness and so on, the executive said.

Basic research could be harmed

When it comes to foundational technologies that in turn drive others, where and how the government draws the line for export control could determine how basic research is conducted in labs and universities around the country, how patents are filed and how the findings are transferred from a lab to industry, the executive and other commenters at the conference said.

When the agency issued a notice late last year intending to issue rules on emerging technologies, the department said the starting point for inclusion would be dozens of categories of technologies whose exports already are prohibited to countries that support terrorism and other nations with whom the United States has foreign policy disputes.

The proposed list included areas such as nano-biology and synthetic biology; artificial intelligence, including machine learning technologies; neural networks; computer vision; 3D printing used in manufacturing; self-assembling robots; and quantum computing.

A wide cross section of industry groups and advocacy organizations wrote to the agency saying that the list was not only too broad, but many of the technologies are no longer in the emerging phase and are in commercial use.

“Many of the categories and their specific emerging technologies identified by BIS have been under research and development for decades and have mass-market applications, rendering them far from ‘emerging’ technologies,” the Center for Democracy and Technology, an advocacy group that promotes human rights and safe use of technology, wrote in response to the proposal. “Further, mass-market applications in many of these areas would be stymied if burdened with export control obligations and numerous markets would be negatively impacted given the broad-reaching applicability of such technologies.”

Automaker Toyota said that not only are many of the technologies already in use, but if the United States were to impose export controls unilaterally, companies may shift their research and development efforts outside the United States and thereby hurt — not strengthen — U.S. technological foundations.

To avoid the peril, Toyota said, the agency should craft “the narrowest and most precise technical criteria in these areas of emerging and foundational technologies.”

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