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National security lawyer praises Warner-Rubio bill for elevating issue of export controls on emerging technologies

January 08, 2019

A new bill by Senate Intelligence ranking member Mark Warner (D-VA) and Sen. Marco Rubio (R-FL) could take the issue of export controls on emerging technology out from under the auspices of a relatively obscure government office and bring it to a larger stage -- and should receive prompt consideration in Congress, according to a leading attorney who specializes in the national security implications of cybersecurity policy.

The bill, S. 29, would create a new office within the White House -- the Office of Critical Technology and Security, which would engage diverse stakeholders, including international allies -- to curtail the transfer of certain U.S. technologies to Chinese entities in exchange for access to that country's market and to enforce supply-chain security measures for information and communications technology. 

The issue of forced technology transfers is also being considered as part of an advance notice of proposed rulemaking at the Department of Commerce's Bureau of Industry and Security, which is seeking comment on how to establish criteria for emerging technologies that might be subject to future export controls.

“Trying to figure this out on the basis of voluntary comments from a notice put out by a small unit of a small agency, well that's a way to get it started, but it hardly is commensurate with the importance and complexity of the long term economic impact and national security risk of this issue,” said Robert Metzger, a partner at the law firm Rogers Joseph and O'Donnell, and an author of the MITRE Corporation's “Deliver Uncompromised” report.

“That's why, I think the Warner-Rubio bill is a very timely and useful proposal,” he said. I think this bill essentially, is intended to remove from the Department of Commerce and install in the new Office of Critical Technology and Security, these questions on a whole-of government basis."

Metzger said the Warner-Rubio bill would rightfully engage senior leadership of the relevant departments and agencies with a charter to involve not only federal government participants, but state entities, the regulatory sector -- specifically the Federal Communications Commission and the Federal Trade Commission -- the private sector, science and technology partners, and particularly important, also international partners, which he said “is crucial for such things as 5G.”

He did offer the caveat that simply transferring decisions over export controls from one arena to the other wouldn't necessarily make it easier to answer the difficult questions involved, but said the Warner-Rubio bill would at least make those decisions in the context of a larger strategy.

The senators have also included considerations for expanding investments in technologies that would improve U.S. national security posture, in addition to just barring access to critical technologies to adversaries.

“We should be under no illusion that answering these questions will be any easier for the new office than it will be for BIS,” he said. “I'm not saying this is a perfect way to deal with such a complex problem, but this strikes me as a very important measure and one which I hope will receive prompt and serious consideration by the Congress.”

Metzger also echoed complaints from prospective filers on the BIS advance notice of proposed rulemaking from industry and academia who argue they aren't being given sufficient time to respond to the request for comments.

Commerce has granted an extension -- to Jan. 10 -- which, especially in light of the partial government shutdown, stakeholders say is still woefully narrow.

“Jan. 10 is not nearly long enough,” Metzger said. “This is an issue of immense importance and not an area where prompt and simplistic comments will be helpful. Even if they give a day-per-day extension [based on the shutdown], in my judgment, it's not enough. Industry needs to have time to consider, to meet, discuss. It's more important for the government to be fully informed with the best assessment and the analysis of as diverse a group as possible than to proceed in such a weighty domain on the basis of imperfect information collected over too short a time.”

BIS is pursuing the rulemaking under the authority of the Export Controls Reform Act, which became law as part of the National Defense Authorization Act of 2019. The law did not stipulate a timeline for the public comment process. -- Mariam Baksh (mbaksh@iwpnews.com)