Every Monday we post the highlights out of last week’s FCC Export/Import Daily Update (“The Daily Bugle”). Send out every business day to approximately 8,500 readers of changes to defense and high-tech trade laws and regulations, The Daily Bugle is a free daily newsletter from Full Circle Compliance, edited by James E. Bartlett III, Salvatore Di Misa, and Elina Tsapouri.
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Last week’s highlights of The Daily Bugle included in this edition are:
- State/DDTC: “ITAR–Temporary Update to Republic of Cyprus Country Policy”; Monday, 28 Sep 2020; Item #2
- Commerce/BIS: “Statement on U.S. District Court Ruling on TikTok Preliminary Injunction”; Monday, 28 Sep 2020; Item #5
- EU External Action: “Group of Governmental Experts on Lethal Autonomous Weapons Systems Convention on Certain Conventional Weapons”; Monday, 28 Sep 2020; Item #7
- State Dept: Guidance on Implementing the “UN Guiding Principles” for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities; Wednesday, 30 Sep 2020; Item #4
- Commerce: “Identification of Prohibited Transactions to Implement EO 13942 and Address the Threat Posed by TikTok and the National Emergency; Preliminary Injunction Order Entered by a Federal District Court”; Friday, 30 Sep 2020; Item #1
State/DDTC: “ITAR–Temporary Update to Republic of Cyprus Country Policy”
(Source: Federal Register) [Excerpts]
85 FR 60698: Rule
* AGENCY: Department of State.
* ACTION: Temporary final rule.
* SUMMARY: The Department of State is amending the International Traffic in Arms Regulations (ITAR) to update defense trade policy toward the Republic of Cyprus (Cyprus) by temporarily removing prohibitions on exports, reexports, retransfers, and temporary imports of non-lethal defense articles and defense services destined for or originating in Cyprus. On June 2, 2020, the Secretary of State, exercising authority under section 1250A(d) of the National Defense Authorization Act for Fiscal Year 2020 and section 205(d) of the Eastern Mediterranean Security and Energy Act as delegated from the President, determined that it was essential to the national security interest of the United States to waive the limitations on non-lethal defense articles and defense services destined for or originating in Cyprus. The waiver is effective for one fiscal year. This amendment reflects that waiver.
* DATES:This temporary rule is effective on October 1, 2020, and expires on September 30, 2021, unless subsequently extended.
* FOR FURTHER INFORMATION CONTACT: Sarah Heidema, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2809, oremail email@example.com. ATTN: Regulatory Change, ITAR Section 126.1 Cyprus Country Policy Update.
Commerce/BIS: “Statement on U.S. District Court Ruling on TikTok Preliminary Injunction”
(Source: Commerce/BIS, 27 Sep 2020)
On September 27, 2020, the United States District Court for the District of Columbia granted a nationwide preliminary injunction against the implementation of Executive Order (E.O.) 13942, limited to the Secretary of Commerce’s Identification of Prohibited Transactions with TikTok/ByteDance involving ‘any provision of services… to distribute or maintain the TikTok mobile application, constituent code, or application updates through an online mobile application store.’ The E.O. is fully consistent with the law and promotes legitimate national security interests. The Government will comply with the injunction and has taken immediate steps to do so, but intends to vigorously defend the E.O. and the Secretary’s implementation efforts from legal challenges.
EU External Action: “Group of Governmental Experts on Lethal Autonomous Weapons Systems Convention on Certain Conventional Weapons”
(Source: European Union External Action, 28 Sep 2020) [Excerpts]
… We encourage the High Contracting Parties (HCP) to seek further common ground on developing substantive content and ensuring the effectiveness of the process. The Convention on Certain Conventional Weapons (CCW) is the relevant international forum in this regard, combining diplomatic, legal and military expertise and involving, in addition to States, international and regional organisations, the International Committee of the Red Cross (ICRC), industry and civil society. The CCW must remain responsive to new developments in the field of weapons technology and be able to adequately address them. In this regard, the CCW should ensure, within its mandate, that, first of all, these new developments comply with relevant obligations. For the credibility of the process and acknowledging the progress already made, it is important that the CCW produces concrete and substantive results, including by advancing on the operationalisation of the 11 guiding principles.
Further consideration of the human element in the use of lethal force; aspects of human-machine interaction in the development, deployment and use of emerging technologies in the area of lethal autonomous weapons systems
We recall the mandate agreed in 2016 by the Fifth CCW Review Conference for the GGE LAWS and the comprehensive list of items identified for further consideration. For the EU, the consideration of the human element and reaching common understandings on elements of human control will be relevant for all future work.
We should continue work to understand how human-machine interaction, human control, judgment, accountability and responsibility might work, with regard to possible military applications of emerging technologies in the area of LAWS. We have previously outlined key elements which, in our view, are crucial for ensuring sufficient human supervision. We should aim to elaborate a common understanding on the type and degree of human-machine interaction, including elements of sufficient human control and judgment, which will be needed to ensure full compliance with International Law and, in particular, IHL. The clarification, consideration and development of aspects of the normative and operational framework on emerging technologies in the area of LAWS is based on the implementation of the existing IHL rules and must ensure that these rules fully apply to these systems, without prejudice to future developments or additions to these rules. This might facilitate our consideration of the normative and operational framework related to emerging technologies in the area of LAWS.
On the proposed agenda
The proposed agenda of the GGE LAWS is a pragmatic basis for our work on legal, technical and military aspects. Acting upon this agenda will not prevent any State from raising other relevant issues during the debate. We would like to reiterate our proposal that information should be freely and regularly exchanged across thematic areas, as all areas have cross-cutting considerations. We would also propose that the key themes with possible deliverables for each thematic area are identified in advance and agreed by consensus.
On the guiding principles
The EU attaches great importance to the 11 guiding principles, including, inter alia, the additional guiding principle (c) proposed by Belgium and Ireland on human-machine interaction. This may take various forms and be implemented at various stages of the life cycle of a weapon, and should ensure that the potential use of weapons systems based on emerging technologies in the area of LAWS is in compliance with applicable international law, in particular IHL. Their purpose is to act as a basis for the GGE’s recommendations in relation to the clarification, consideration and development of aspects of the normative and operational framework on emerging technologies in the area of LAWS. We encourage HCP to take them into account in their national practices and policies. …
State Dept: Guidance on Implementing the “UN Guiding Principles” for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities
(Source: U.S. Dept of State, 30 Sep 2020)
Today, the U.S. Department of State released guidance to assist U.S. companies seeking to prevent their products or services with surveillance capabilities from being misused by foreign government end-users to commit human rights abuses.
Too often, products or services with surveillance capabilities are misused by foreign governments to stifle dissent; harass human rights defenders; intimidate minority communities; discourage whistle-blowers; chill free expression; target political opponents, journalists, and lawyers; or interfere arbitrarily or unlawfully with privacy. Governments employ these items as part of a broader state apparatus of oppression that violates and abuses human rights and fundamental freedoms, including freedoms of expression, religion or belief, and association, and the right of peaceful assembly.
To help minimize this risk, the U.S. Department of State developed voluntary human rights due diligence guidance to help U.S. businesses conduct a human rights impact assessment on relevant products or services, and to provide them with a series of considerations to weigh prior to engaging in transactions with governments. The guidance – a first-of-its-kind tool to implement the UN Guiding Principles on Business and Human Rights on this issue – is intended to be particularly helpful for U.S. businesses that want to undertake a human rights review when the U.S. government does not require an authorization for export.
The full guidance document can be found HERE
Commerce: “Identification of Prohibited Transactions to Implement EO 13942 and Address the Threat Posed by TikTok and the National Emergency; Preliminary Injunction Order Entered by a Federal District Court”
(Source: Federal Register, 2 Oct 2020) [Excerpts]
85 FR 62214: Rule
* AGENCY: Office of the Secretary, U.S. Department of Commerce.
* ACTION: Notification of preliminary injunction.
* SUMMARY: The U.S. Department of Commerce (“Department”) is issuing this document to inform the public of a preliminary injunction ordered by a United States district court on September 27, 2020, preventing the implementation of specific Department actions.
* DATES: The court order was effective September 27, 2020.
* FOR FURTHER INFORMATION CONTACT: Kathy Smith, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1859.