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On November 20, 2006 (71 FR 67034), the Department of Commerce published an amendment to the Export Administration Regulations (EAR) to impose foreign policy controls on exports of devices primarily used for the surreptitious interception of wire, oral, or electronic communications and on related software and technology. The U.S. Government maintains these controls in order to prevent the unlawful interception of oral, wire, or electronic communications by terrorists and others who may put the information gained through intercepted communications to an unlawful use; to promote the protection of privacy of oral, wire, or electronic communications; and to protect against threats of terrorism around the world.
The amendment imposes anti-terrorism (AT) controls and creates a new foreign policy control, surreptitious listening (SL), for devices used for the surreptitious interception of wire, oral, or electronic communications controlled under Export Control Classification Number (ECCN) 5A980. It also imposes the same controls on related software and technology by creating ECCNs 5D980 (software) and 5E980 (technology).
A license is required, for SL reasons, for all other exports and reexports. The Department will generally approve applications for the export and reexport of items classified as 5A980, 5D980 or 5E980 to all other destinations, except for destinations for which a license is required for AT reasons, for providers of wire or electronic communication service acting in the normal course of business; or officers, agents, or employees of, or persons under contract with, the United States, a State, or a political subdivision thereof in the normal course of activities of any of the governmental entities listed. License applications from other parties will generally be denied.
The license requirements set forth in the EAR are independent of the requirements of section 2512 of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. 2512). These controls do not supersede, nor do they implement, construe, or limit the scope of any of the statutory restrictions of section 2512 of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, that are enforced by the U.S. Department of Justice.
The purpose of the imposition of surreptitious listening controls is to prevent the unlawful interception of oral, wire, or electronic communications by terrorists and others who may put the information gained through intercepted communications to an unlawful use; to promote the protection of privacy of oral, wire, or electronic communications; and to protect against threats of terrorism around the world. The controls distance the United States from nations that have repeatedly supported acts of terrorism and from individuals and organizations that commit terrorist acts.
1. Probability of Achieving the Intended Foreign Policy Purpose. The Secretary has determined that the surreptitious listening controls are likely to achieve the intended foreign policy purpose, notwithstanding the availability of these controlled items from other countries, and that the foreign policy purpose cannot be achieved through negotiations or other alternative means.
Because sending or carrying the devices in foreign commerce is already subject to independent criminal sanction, the imposition of foreign policy-based controls on these devices and related software and technology will enhance the probability of achieving the intended foreign policy purpose of preventing the unlawful interception of oral, wire, or electronic communications by terrorists and others who may put the information gained through intercepted communications to an unlawful use; promoting the protection of privacy of oral, wire, or electronic communications; and protecting against threats of terrorism around the world.
Although the availability of comparable goods from foreign sources limits the effectiveness of the surreptitious listening controls, these controls restrict access by the countries and persons subject to these controls to U.S.-origin commodities, technology, and software, and demonstrate U.S. determination to prevent the unlawful interception of communications, to promote privacy protection, and to oppose and distance itself from international terrorism.
2. Compatibility with Foreign Policy Objectives . The Secretary has determined that the imposition of these controls is consistent with the foreign policy objectives of the United States and will not have any significant adverse foreign policy consequences. The imposition of surreptitious listening controls will enhance the U.S. Government’s ability to stop the supply of U.S.-origin items to persons engaged in, or supportive of, unlawful uses of intercepted communications, privacy violations, and acts of terrorism. The imposition of these controls is also compatible with overall U.S. policy toward Cuba , Iran , North Korea , Sudan , and Syria . The U.S. Government intends to promote privacy protection and aid in deterring criminal activities, including terrorism, through these foreign policy-based controls.
3. Reaction of Other Countries . The Secretary has determined that any adverse reaction to the imposition of surreptitious listening controls is not likely to render the controls ineffective nor will any adverse reaction by other countries be counter-productive to U.S. foreign policy interests. Most countries are generally supportive of U.S. efforts to prevent unlawful uses of intercepted communications, including uses of intercepted communications by terrorists, and to stop the proliferation of weapons of mass destruction in countries of concern. In addition, the sending or carrying of the devices in foreign commerce are already subject to independent criminal sanction. The imposition of foreign policy-based controls on these devices and related software and technology is not expected to result in any adverse reaction by other countries.
4. Economic Impact on U.S. Industry . The Secretary has determined that any adverse effect of these controls on the economy of the United States , including the competitive position of the United States in the international economy, does not exceed the benefit to U.S. foreign policy objectives. Because sending or carrying the devices in foreign commerce is already subject to independent criminal sanction, the imposition of foreign policy-based controls on the devices and related software and technology will not have a discernable economic impact.
5. Effective Enforcement of Controls. The Secretary has determined that the United States has the ability to enforce these controls effectively. The imposition of foreign policy-based controls on the devices and related software and technology will enhance effective enforcement because the new controls are pursuant to the export control authorities delegated to the Department of Commerce. The U.S. Government can effectively enforce these controls by focusing on preventive enforcement, using regular outreach efforts to keep industry informed, and gathering leads on activities of concern.
This November 2006 amendment to the EAR was published in the Federal Register in final form. Although there is no formal comment period, public comments on this amendment are welcome on a continuing basis.
The Department of Commerce consults with the Regulations and Procedures Technical Advisory Committee (RPTAC), one of six such committees that advise the Bureau of Industry and Security (BIS), in preparation for publication of major regulatory changes affecting foreign policy controls. BIS did consult with the RPTAC prior to the publication of this rule.
In an October 23, 2006 , Federal Register notice (71 FR 62065), the Department of Commerce solicited comments from industry on the effectiveness of U.S. foreign policy-based export controls. In addition, comments were solicited from the public via the BIS website. Comments from the Department’s six Technical Advisory Committees and the President’s Export Council Subcommittee on Export Administration are solicited on an ongoing basis and are not specific to this report. The comment period closed on November 22, 2006 , and three comments were received. A detailed review of all public comments received can be found in Appendix I.
The United States continues to consult with a number of countries, both on a bilateral and a multilateral basis. In general, most countries are supportive of measures designed to prevent the unlawful use of intercepted communications, protect privacy, and combat terrorism but do not implement strict export controls on these items similar to the United States ’ export controls. The United States will consult with other countries as necessary regarding these changes in order to ensure compliance and encourage their efforts to deter terrorism and other criminal activity.
The U.S. Government continually reviews the means by which it can curtail privacy violations and terrorism and has taken a wide range of diplomatic, political, and security-related steps to support this effort. Imposing these foreign-policy based controls enhances the aforementioned efforts in order to prevent terrorist-supporting countries from acquiring items subject to U.S. export control jurisdiction. In addition, these controls underscore the United States ’ commitment to prevent criminal activity worldwide.
The commodities subject to these controls are likely available from foreign suppliers. The Department of Commerce is aware that these new controls will not prevent the shipment of such foreign-origin items from other countries, but we anticipate that the regulation will minimize the risk of diversion of U.S.-origin devices and related software and technology primarily useful for surreptitious interception of wire, oral or electronic communications to end-users without a legitimate commercial need for such devices.