Subsentio files comments in Department of Commerce rule making on advanced surveillance technologies

December 14, 2018

U.S. Department of Commerce
Bureau of Industry and Security
Regulatory Policy Division
Room H2705
14th Street and Pennsylvania Avenue, NW
Washington, D.C. 20230

Re: Review of Controls for Certain Emerging Technologies
Advanced Notice of Proposed Rulemaking
Docket No. 180712626-8840-01
RIN: 0694-AH61
83 Fed. Reg. 58201
Published: November 19, 2018

Dear Staff:

Subsentio, LLC (Subsentio) hereby submits comments in response to the referenced Advanced Notice of Proposed Rulemaking (the ANPR) in Docket No. 180712626-8840-01, issued by the Commerce Department’s Bureau of Industry and Security (BIS).

Subsentio’s Involvement in the Export of Emerging Surveillance Technology

Subsentio offers a unique service. We help communication service providers (CSPs) worldwide comply with government mandates to provide technical assistance in law enforcement and national security investigations. One type of government mandate requires CSPs to equip their networks with hardware/software solutions to implement orders for lawful electronic surveillance, informally known as lawful interception (LI) or wiretapping. Another type of mandate requires CSPs to disclose stored subscriber information, a function commonly known as records production (RP). In some countries, RP laws take the form of “data retention” mandates.

Subsentio serves hundreds of CSPs in the US and a growing number of CSPs with international footprints. Our clients include telephone companies, wireless (cellular) carriers, satellite operators, voice-over-Internet-protocol (VoIP) purveyors, and providers of broadband Internet access. The geographic reach of the global competitors spans the U.S., Canada, Europe, Asia, Australia, and South America.

In support of these clients, Subsentio outfits their communications networks with technical solutions to comply with the above-described mandates. Some of the solutions are invented by a Subsentio affiliate. Others are developed by certain domestic and foreign vendors. After we equip the clients’ networks with appropriate solutions, we operate the solutions on their behalf in response to lawful due process. For example, a foreign-based client may authorize our US-based engineers to implement a foreign court order for LI by remotely activating the LI solution in the foreign network.

Our specialized service package reflects in-depth expertise in the needs of LI and RP worldwide. And our middleman role in the activities of LI and RP positions us as an honest broker between the needs of privacy, industry and public safety. Accordingly, we offer a unique perspective on the ANPR for purposes of advanced surveillance technologies.

The Potential Impact of Export Classification on Emerging Surveillance Technology

The core issue raised in the ANPRM is whether BIS should classify certain sensitive emerging technologies such as advanced LI technology, thereby subjecting the high-tech developments to potential export control. Subsentio believes the impact of such classification would be mixed.

1. Factors in Favor of Classification

Many policy factors weigh in favor of classifying advanced LI technology. Most importantly, classification would help prevent the exploitation of LI techniques by foreign interests. An ill-intentioned government or terrorist group in possession of proprietary American LI equipment could use the devices to spy on Americans or frustrate American intelligence-gathering operations. Alternatively, a valid consignee of the LI equipment could transfer or re-export the product to a foreign adversary. Worse still, the foreign party could proliferate the LI invention among America’s enemies worldwide. The resulting damage to US national security may be immeasurable.

Beyond the national security danger is the potential threat to law enforcement. Once a criminal organization learns the mechanism of a new LI technique it could devise a way to evade the LI. Law enforcement would effectively lose a valuable crime-fighting tool.

Another national policy concern is the use of LI by despotic regimes to crush internal dissent. These odious practices would indirectly harm US interests by stifling the growth of pro-democracy movements and undermining human rights.

As a matter of industry competition, a foreign LI solution vendor that obtains advanced American LI research and development without paying the requisite development costs would gain an unfair competitive advantage over its American rivals. BIS’s mission is to pursue its important export control goals while minimizing harm to US business.

One final reason to classify advanced LI R&D is for monitoring purposes. Only if BIS tracks the use of the technology can our national security authorities understand who is using it, where, and why.  This knowledge may prove vital to future US initiatives involving national security, law enforcement, democratic movements, and global trade.

2. Factors Against Classification

The downside of classifying advanced LI technology must also be weighed. Of foremost concern, we must expect unfriendly nations, terrorist groups and criminals to develop new technologies to conduct LI and evade LI, regardless of US efforts to stop them.  At best we may slow their progress. For this reason, the US may as well let American companies develop new LI solutions without regulatory obstruction or delay.

By classifying advanced LI R&D, BIS may ultimately slow the progress of US LI vendors. Such a development could unfairly advantage solution vendors abroad, where export laws may be more permissive.

Perhaps the best argument to leave LI R&D unclassified is a matter of self-interest. American LI vendors have a natural economic incentive to safeguard their work product from prying eyes. Moreover, LI vendors understand the needs of information security because they build such features into their technical creations. For these reasons the LI industry is well positioned to export its wares without the need for government oversight.

A Compromise to Manage the Export Classification of Emerging Surveillance Technology

Having listed the pros and cons of classifying emerging surveillance technology, Subsentio will now propose a compromise approach to the issue. We believe advanced LI gear should be classified, but any resulting export controls should be streamlined to operate more efficiently than current controls.

Specifically, BIS should establish a “trusted LI solution exporter” program similar to the Trusted Traveler Programs run by the U.S. Customs and Border Protection (CBP) agency in the Department of Homeland Security. The CBP’s Trusted Traveler Programs permit citizens qualified as “low-risk” individuals to enter the U.S. without full-length security checks. See

Precedent for the proposed program already exists. Specifically, BIS’s Encryption Licensing Arrangement (ELA) enables American manufacturers of encryption items to earn a trusted exporter status that permits them to ship their products to sensitive and non-sensitive users worldwide.

A trusted solution vendor in the proposed LI export program would possess certain national security qualifications. In particular, the candidate should:

1. be 100% U.S.-owned;
2. demonstrate substantial experience in the development and sale of LI technology;
3. represent under penalty of perjury that it will not export its R&D to countries listed by BIS as off-limits. Such a list may be derived with advice from the Treasury Department’s Office of Foreign Asset Control. See;
4. accept the usual restriction against transfer or re-export;
5. report its export activities to BIS; and
6. be subject to government audit at reasonable intervals.

Once granted the above-described status of a trusted LI solution exporter, the LIvendor should receive blanket authority to export its products for a set period such as five years. As a result, the US LI developer community could maintain its leadership position in the industry while still serving the nation’s public safety goals.

The proposed LI export program would even benefit BIS. Because the program would require fewer applications for BIS export approval, it would conserve the agency’s scarce resources.

Subsentio is grateful for the opportunity to submit its views in this important BIS proceeding.

Respectfully submitted,

Joel M. Margolis
General Counsel and Executive
Vice President of Government Affairs