BIS Leaning Toward Export Controls on BCI Tech, Seeking More Collaboration With Universities

“I understand the initial instinct behind the commenters’ responses to our request for comments,” Kendler told academic export compliance officers May 4 at the annual University Export Control Conference at the University of Pennsylvania. “But an outright condemnation of export controls is not tenable.”

The agency in October sought feedback on the possibility of controlling exports of BCI technologies, which the agency said could empower future militaries in unmanned missions and improve the “capabilities of human soldiers” (see 2110250011). Tech companies told BIS that the controls, if not properly tailored, could stifle U.S. competitiveness, while university officials said restrictions would be premature and slow academic research of an emerging technology that could have important humanitarian uses, such as treating debilitating neurological disorders (see 2201100010).

Although Kendler said U.S. researchers are “focused on collaborating with the best minds in their field” on BCI technology, she also asked whether they’re considering who else may be interested in the technology and the “worst-case scenarios.” She pointed to BIS’s December decision to add China’s Academy of Military Medical Sciences and 11 of its research institutes to the Entity List for studying “brain-control weaponry” on behalf of the country’s military (see 2112160017).

“The risk of failing to think through the national security concerns of new technologies is real,” Kendler said. “Developing technologies without considering how they may be applied outside the lab is reckless.”

Kendler asked for more “help” from universities as BIS continues to control emerging technologies as part of its mandate under the Export Control Reform Act of 2018. She acknowledged “some controversy” surrounding the agency’s efforts to issue the controls, which some lawmakers and think tanks say have taken too long (see 2204050059, 2111170064 and 2110250035). Although BIS has issued nearly 40 emerging technology controls, it hasn’t yet issued a foundational technology restriction.

“Some say that BIS has not defined what emerging and foundational technologies are, has not acted fast enough and hasn’t been willing to act unilaterally,” Kendler said. “Others criticize the notion of controlling emerging technologies at all because such controls will harm innovation.

“I just want to be clear about this,” she added. “If a technology poses a risk to national security, BIS controls it.”

Kendler said the agency wants “deeper collaboration" with universities to identify emerging technologies. She said in April that BIS has struggled to identify specific emerging technologies for potential export controls, in part because some of the suggestions it has received have been too broad (see 2204080033). “A strong relationship between BIS and the institutions you represent is essential to ensuring U.S. national security,” Kendler said, “including long-term technological leadership.”

She also said the agency is hoping to “better understand” how it can help university researchers comply with restrictions. “There is no one-size-fits-all approach to academia,” Kendler said. “We want to provide better resources and support tailored to the issues that keep you, the compliance officers, up at night.”

One such resource, BIS’s end-user lists, can help researchers and exporters identify people and entities that likely should not have access to sensitive research and technologies, Kendler said. The agency released its military-end-user list in 2020 (see 2012220027) and a military intelligence end-user list in 2021 (see 2101140035).

“I’m a big believer in those end-user lists in serving you all in your due diligence,” she said. “I know that we deny quite a few of those licenses, but I think of it as an opportunity to tell the public some of what we know, putting you all on notice that you really need to do extra due-diligence for these transactions."

Although BIS could do a “better job” of consolidating them, Kendler said the agency will continue to add to the lists. “I don't think that's going away," she said.

Some companies have struggled to figure out how much due diligence is sufficient to determine whether a customer is a military or military-intelligence end-user (see 2102190042, 2103050016 and 2007090075). A university export compliance officer told Kendler that some researchers deal with similar issues.

Kendler said universities should ask themselves: “How close to the line do you want to get?” Universities should be wary of “technology being misused” or the “reputational risks to your institution of getting publicized as being affiliated with one of these organizations that ends up being deeply involved in some sort of military engagement or human rights abuse.”

“I don't have the risk tolerance for that personally,” she said. “And I would ask you to think very seriously about whether that's in the interest of your institution.”

She also warned universities that they shouldn’t try to avoid new export controls if the technologies they are studying could have dangerous uses in the hands of U.S adversaries; she specifically mentioned nuclear technologies. Multilateral export restrictions, Kendler said, will help researchers collaborate with others from like-minded countries.

“We can't have our academic institutions, researchers and faculty stick their heads in the sand and reflexively hold that all controls are bad for innovation,” Kendler said. “Carefully tailored export controls support innovation.”