GRC Viewpoint

BIS Suggests New Regulations for Facial Recognition Technology

The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) announced a proposed change to the Export Administration Regulations (EAR) on July 25, 2024. This change aims to add new controls over facial recognition technology to the Commerce Control List (CCL). Public comments on this proposal will be accepted until September 27, 2024.

The proposed amendment introduces new crime control measures for facial recognition systems designed for mass surveillance and crowd scanning. These systems enable state actors to monitor, track, and potentially detain individuals unlawfully. The new controls will apply to crime control and detection equipment, as well as other technology and software under specific Export Control Classification Numbers (ECCN) on the CCL. A license would be required to export these items to countries listed in CC Column 1 (CC1) of the Commerce Country Chart, found in Supplement No. 1 to part 738 of the EAR. Importantly, these controls are designed to be narrow and will not apply to systems that use facial recognition technology for personal devices, vehicles, or residential or work premises for identity verification.

The proposed rule also plans to amend ECCN 3A981 to include facial recognition systems in its controls. As a result, facial recognition software will fall under ECCN 3A981, while facial recognition technology will be controlled under ECCN 3E980, both for CC1 reasons.

In summary, the BIS is tightening regulations around facial recognition technology used for surveillance to prevent misuse by state actors. The goal is to balance crime control needs with privacy and civil liberties, ensuring that only systems designed for broader surveillance and tracking are heavily regulated. Personal use systems for identity verification remain unaffected, keeping the focus on preventing mass surveillance misuse. The deadline for public feedback on this significant regulatory proposal is September 27, 2024, providing stakeholders an opportunity to share their insights and concerns.

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