BIS Proposes New Rule on Facial Recognition Systems

This blog post was drafted with assistance from Sean C. Church, Paralegal

On July 25, 2024, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) announced a proposed rule amending the Export Administration Regulations (EAR) by adding two new unilateral item controls covering facial recognition technology to the Commerce Control List (CCL). BIS is accepting comments on the proposed rule until September 27, 2024.

The proposed rule would create a new crime control for facial recognition systems that are particularly designed for mass surveillance and crowd scanning, which give state actors the ability to monitor, track, or possibly detain people unlawfully. The new controls would apply to crime control and detection equipment, in addition to other technology and software listed under the Export Control Classification Numbers (ECCN) on the CCL. BIS also noted that a license would be required for export of such items to countries of concern listed in CC Column 1 (CC1) in the Commerce Country Chart at Supplement No. 1 to part 738 of the EAR. The controls would be narrowly tailored and not applicable to systems that use such facial recognition technology for individual access to personal devices, automobiles, or residential or work premises that verify identities of people attempting to gain access.

The proposed rule would also amend ECCN 3A981 to control facial recognition systems in addition to what it already controls. Accordingly, facial recognition software would be controlled under ECCN 3A981 and facial recognition technology under ECCN 3E980. These would both be controlled for CC1 reasons.

Please contact our sanctions, export controls, and CFIUS team if you need assistance navigating these latest developments.