Regulating Surveillance Technology through the Wassenaar Arrangement ‒ Some Implications for Dual-Use Export Controls under the Foreign Trade Act of Korea ‒

Abstract

This paper examines and evaluates how states have regulated the export and transfer of cyber surveillance technology through a set of multilateral, regional and domestic export control laws. The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies (“the Wassenaar Arrangement”) is the first international agreement that sets out a legal and policy framework to limit the transfer of certain types of surveillance technology. In the early to mid 2010s, the so-called “cyber amendments” to Wassenaar were introduced to stop the state-led digital surveillance in connection with serious human rights violations as well as to break the linkage between authoritarian governments and multinational surveillance companies in supplying surveillance tools. Against this backdrop, Part II first clarifies the meaning of surveillance technology as a subject of international trade and briefly examines how its meaning has developed in legal context. Part III explains the basic structure and features of global export control mechanism with an emphasis on the Wassenaar Arrangement. In Part III, the paper also sets out the background underlying the adoption of the cyber amendment and analyzes three Wassenaar control classes designed to address surveillance technology. Part IV then looks at how the cyber amendments have been implemented in regional and domestic contexts. In this light, key aspects and reformative changes of export control laws will be studied in the context of US, Chinese and EU systems. The paper is especially interested in understanding how the US, China, and the EU differ in their approaches to regulating the export of cyber surveillance technology. Finally against the current development of international political and economic relations and changes in the normative environment concerning export control of surveillance technology, the paper seeks to provide suggestions to facilitate and develop Korea s export control system derived from the Foreign Trade Act of Korea.