Export control of cybersurveillance items in the new dual-use regulation: The challenges of applying human rights logic to export control |
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| Institution: | 1. Professor of Law & Information Technology at the University of Technology Sydney (UTS) and Co-Director of AustLII, Australia;2. Associate Professor of Law at UNSW Sydney and Executive Director of AustLII, Australia;3. Professor of Law & Information Systems at UNSW Sydney and Co-Founder of AustLII, Australia;1. Professor of Law & Information Technology, University of Technology Sydney, and Co-Director, AustLII, Australia;2. Associate Professor of Law, UNSW Sydney, and Executive Director, AustLII, Australia;3. Professor of Law & Information Systems, UNSW Sydney, and Senior Researcher, AustLII, Australia |
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| 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. |
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