Export control of cybersurveillance items in the new dual-use regulation: The challenges of applying human rights logic to export control
Abstract
In 2021, the Recast Dual-Use Regulation entered into force. The regulation includes a heavily debated new provision on the export control of so-called cybersurveillance items. This provision departs from the traditional logic of export control rules in multiple ways. Most importantly, it positions human rights considerations as an important factor in the export control of a flexible range of technologies. This article explores the operation, implications and challenges of this new human rights-orientated approach to export control of digital surveillance technologies. Taking the definition of cybersurveillance items as a starting point of the analysis, the article draws on surveillance-related case law of the European Court of Human Rights and the Court of Justice of the European Union, to define the potential scope of application of the open-ended cybersurveillance concept of the Regulation. By exploring how this concept maps to technologies often connected with human rights infringements, such as facial recognition, location tracking and open-source intelligence, the article highlights the challenges of applying this new approach and underscores the need for its further development in practice.
Links
cybersurveillance, Human rights, Regulation
Bibtex
Article{nokey,
title = {Export control of cybersurveillance items in the new dual-use regulation: The challenges of applying human rights logic to export control},
author = {van Daalen, O. and van Hoboken, J. and Rucz, M.},
doi = {https://doi.org/10.1016/j.clsr.2022.105789},
year = {2023},
date = {2023-04-21},
journal = {Computer Law & Security Review},
volume = {48},
pages = {},
abstract = {In 2021, the Recast Dual-Use Regulation entered into force. The regulation includes a heavily debated new provision on the export control of so-called cybersurveillance items. This provision departs from the traditional logic of export control rules in multiple ways. Most importantly, it positions human rights considerations as an important factor in the export control of a flexible range of technologies. This article explores the operation, implications and challenges of this new human rights-orientated approach to export control of digital surveillance technologies. Taking the definition of cybersurveillance items as a starting point of the analysis, the article draws on surveillance-related case law of the European Court of Human Rights and the Court of Justice of the European Union, to define the potential scope of application of the open-ended cybersurveillance concept of the Regulation. By exploring how this concept maps to technologies often connected with human rights infringements, such as facial recognition, location tracking and open-source intelligence, the article highlights the challenges of applying this new approach and underscores the need for its further development in practice.},
keywords = {cybersurveillance, Human rights, Regulation},
}