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Biden Issues Executive Order: Strong on Measures to Combat Misuse and Proliferation of Surveillance Technology

Written by on April 24, 2023

The Executive Order signed by President Biden on April 21, 2023, aims to address the threat posed by commercial spyware to U.S. national security, foreign policy, and privacy. This complements the efforts taken by the Biden-Harris Administration and Congress to confront the proliferation and misuse of commercial spyware.

Congress has enacted new statutory authorities and requirements related to commercial spyware in the Intelligence Authorization Acts for Fiscal Years 2022 and 2023, including new restrictions and reporting requirements for Intelligence Community (IC) employees’ post-service employment with foreign governments or companies, to include foreign commercial spyware entities. The Director of National Intelligence has issued binding guidance to the U.S. Intelligence Community to implement these statutory requirements, which set an international standard.

The Department of Commerce’s Bureau of Industry and Security (BIS) has placed foreign entities on the Entity List to address foreign policy concerns related to surveillance technologies. In November 2021, BIS added four commercial entities to the Entity List for engaging in the proliferation and misuse of cyber intrusion tools contrary to the national security or foreign policy interests of the United States. The Department of Commerce has also implemented technology-based controls to address digital surveillance tools.

In January 2022, the Department of State and the Office of the Director of National Intelligence’s National Counterintelligence and Security Center issued an advisory for the broader public on how to protect oneself from commercial surveillance tools. At the direction of Congress, the Department of State has submitted a classified report on contractors that have knowingly assisted or facilitated certain cyberattacks or conducted surveillance activities on behalf of relevant foreign governments against the United States or for the purposes of suppressing dissent or intimidating critics.

In June 2021, Secretary Blinken announced that the Department of State will update the United States’ National Action Plan on Responsible Business Conduct, building on prior U.S. government guidance on implementing business and human rights principles for “Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities.”

The Biden-Harris Administration continues to assess the extent to which commercial spyware has been directed against U.S. Government personnel serving overseas and mitigate the counterintelligence and security risks posed by these tools. These efforts aim to reduce the improper use of new technological tools to facilitate repression and human rights abuses, mitigate the counterintelligence threats these tools can pose to the U.S. Government, ensure that U.S. companies and former U.S. Government personnel are not facilitating authoritarian or repressive practices abroad and provide tools to Americans and civil society to better protect themselves.


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