January 22, 2022

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Briefing With State Department Bureau of Democracy, Human Rights, and Labor Acting Principal Deputy Assistant Secretary Scott W. Busby

18 min read

Scott Busby, Deputy Assistant SecretaryBureau of Democracy, Human Rights, and Labor

Via Teleconference

MR ICE: Yes, thank you. Good afternoon, everybody, and I want to thank you for joining our on-the-record briefing with State Department Bureau of Democracy, Human Rights, and Labor Acting Principal Deputy Assistant Secretary Scott Busby.

Just yesterday, the State Department announced the release of our guidance on implementing the UN Guiding Principles for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities. This guidance is available on state.gov for any business to refer to and use. It is a first-of-its-kind tool intended to provide practical, usable, and accessible human rights guidance.

Today, we’re going to begin with opening remarks from Assistant Secretary Busby, and then we will turn to your questions. As a quick reminder, today’s opening remarks and the questions and answers are on the record, but we are going to embargo everything until the end of the call. This is embargoed until the end of the call.

With that, I will turn it over to you, Deputy Assistant Secretary Busby. Please, go ahead.

MR BUSBY: Thanks, JT, and thanks to all of you for joining us today. This guidance document which JT just described is the culmination of a nearly two-year-long process involving broad stakeholder engagement with experts from across civil society and industry. It is aimed at addressing a growing need. Surveillance has been an issue for years, but the number of products or services with surveillance capabilities is increasing exponentially.

There is a vast difference between the use of such applications to gather data that can be used to exert social, economic, or political control, and the use of such data to enhance the lives and security of people. Only by working in partnership with U.S. businesses can those of us on the side of promoting high standards and values safeguard against such misuse.

Too often, surveillance technologies and products are misused by foreign governments to stifle dissent, harass human rights defenders, intimidate minority communities, discourage whistleblowers, chill free expression, target political opponents, journalists, and lawyers, or interfere arbitrarily or unlawfully with privacy.

We released this guidance document in an effort to address these real concerns and help U.S. businesses that are equally concerned about their products or services being potentially misused to commit human rights violations and abuses. The guidance outlines a series of due diligence measures in line with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises that companies should take to mitigate the risk that products and services with surveillance capabilities will be misused by governments to violate or abuse human rights.

It familiarizes U.S. businesses with human rights terminology and offers them greater understanding of the human rights concerns the U.S. Government may have with certain transactions. It helps businesses conduct a human rights impact assessment on their relevant products or services and provides businesses with a series of considerations to weigh prior to engaging in transactions with foreign governments. The guidance document is intended to be particularly helpful for U.S. businesses that want to undertake a human rights review where the U.S. Government does not require an authorization for export.

To help U.S. businesses in implementing the guidance, the State Department has updated our annual Human Rights Report instructions for our embassies around the world to increase attention to surveillance concerns in next year’s reports. Reports with this information will be released in 2021. Our office also stands by ready to work with U.S. businesses seeking assistance in implementing the guidance. We also plan to share the document with other governments, encouraging them to adopt similar measures for their businesses.

Technological leadership from U.S. business has never been more important. We must continue to advance innovation that complements our approach to human rights, including the right to be free from arbitrary or unlawful interference with privacy and freedom of expression, as well as respect for the rule of law. We look forward to working with the U.S. business community and implementing this guidance and ensuring that American companies continue to reflect the strongest of American values.

With that, I’m happy to take any questions you might have.

OPERATOR: Thank you. Ladies and gentlemen, if you have a question, please press 1 then 0 on your touchtone phone, and you may remove yourself by repeating the 1, 0 command.

MR ICE: Okay, great. Thank you so much for that, DAS Busby. We really appreciate it. Let’s go ahead. We’re going to go out a little bit first today for our questions. Let’s go to Alex Aliyev at Turan News Agency.

Alex.

QUESTION: Yes, sir. Good afternoon and thank you so much for doing this. I just wanted to understand (inaudible). For many reasons, the U.S. and its allies do not subscribe to the vision of sovereign and controlled internet when it comes to selling surveillance technology to the likes of, like, Saudi Arabia or Azerbaijan or other countries with poor human rights records. Should we understand – is that – my understanding is that this is going to a new guideline. Is that the case? And if that’s the case, will you make a distinction between the U.S. companies and the U.S. Government-backed efforts? Because digital authoritarianism is spreading and the U.S. companies also need to stop helping it. Thank you so much.

MR BUSBY: These guidelines are based on universal human rights standards that apply to businesses that may be selling products to other governments as well as to U.S. Government action. Human rights obligations of course only apply to governments, but we encourage businesses to respect human rights. That is one of the mandates in the UN Guiding Principles on Business and Human Rights.

MR ICE: Okay, very good. Let’s go to Pearl Matibe at Open Parliament.

QUESTION: Yes, good afternoon and thank you very much for your availability today. I really appreciate this. My question is: You did mention that this has taken three years to come about, so what took so long in the face of the – many countries are facing multiple crises, but this one is a serious one, so what took you so long to announce it now? And was there something that just recently happened for you to announce it today? I just want to understand, why three years? Maybe share what it took to bring this thing about. Thank you very much.

MR BUSBY: First of all, it was only two years in the making, not three, and the reason it took a long time was that we wanted to thoroughly consult all interested stakeholders, including businesses, nongovernmental organizations, the other interested agencies within the U.S. Government to make sure we had guidance that reflected the concerns and interests of all those stakeholders. So there were multiple meetings and then thorough vetting within the U.S. Government as a whole of this guidance.

MR ICE: Okay, thank you. We’re going to – again, let me just remind folks, if you have a question, please dial 1, 0 and that will put you into the question queue. And we’ve – we’re ready to take those questions.

I’ll tell you what, I see that – I believe Pearl has a follow-up question. Pearl, would you like to go ahead and ask your follow-up?

QUESTION: I do, and thank you very much for taking a follow-up question. So while I commend and applaud this effort, I just want to ask you how realistic and what outcome do you wish, do you hope – heads of government and countries that are trending so authoritarian in places – like, for instance, Zimbabwe right now is just in the throws actually. Yesterday they were having a cabinet meeting on amending their cybersecurity and data bill. So how realistic can we see positive outcomes out of this commendable action that you have taken? What do you hope to see? Thanks.

MR BUSBY: Well, first I should emphasize that this guidance is directed at businesses, but our hope is that businesses that follow this guidance along with the diplomacy that our government does along with other governments relative to countries that are restricting access to the internet, that are restricting freedom of expression – the hope is that together, those actions will cause those governments to rethink their restrictive policies.

MR ICE: Okay, very well. Once again, folks, you dial 1, 0 to get into the question queue. Let’s go out to Owen Churchill at the South China Morning Post.

QUESTION: Hi, thank you. This is Owen Churchill. Thank you for taking my question. I was just curious whether you could speak a little bit about any particular cases or particular governments that you’re monitoring closely where you see this practice, the abuse of technology taking place. Are there any particular countries that have your concern at the moment? Thank you.

MR BUSBY: Thanks for the question. I mean, obviously China is one country that has taken a very restrictive approach to the internet and is using surveillance technology widely in violation of international human rights standards. But there are many other governments around the world that are doing the same: Iran obviously, Venezuela, several countries in Africa. So this is a global problem that we’re seeking to address with this guidance.

MR ICE: Okay, very well. Once again, dial 1, 0 if you do have a question. I see that we – Alex Aliyev there at the Turan has come back again with a follow-up. Go ahead, Alex.

QUESTION: Yes, hi. Thank you for the opportunity, and so sorry for taking too long for that – for this question. But some countries such as Azerbaijan and others are using third party sometimes to purchase U.S. surveillance technologies. I wonder how it will work in that scenario. Do you have any leverage to go after third parties when they are breaking the rules? Thank you so much.

MR BUSBY: Very good question, Alex. The guidance is directed at businesses engaged in transactions with other governments, but we recognize that there are often third parties who are assisting governments in obtaining this technology, and we would encourage businesses to evaluate, to assess the relationship of such third parties to governments that are engaging in restrictive practices.

MR ICE: Okay, thank you. We don’t have any other questions in the queue at this moment. I do invite anyone who does have one to go ahead and dial 1-0 and you can come in. We’ll just stand by for a moment and see if a question comes. Please hold.

Okay, let’s now go to Rosiland Jordan with Al Jazeera.

QUESTION: Hi, thanks for doing the call. I guess I have a more basic question: Is this guiding principle being aimed at companies such as Huawei which have been suspected of gathering information for nefarious purposes by this government or that government? And how is this going to be used in tandem with U.S. Government sanctions programs? Thank you.

MR BUSBY: Very good question, Rosiland. I mean, obviously companies like Huawei do not consider human rights impacts when exporting surveillance tools around the world. This guidance is aimed at encouraging U.S. businesses – and other businesses, for that matter – to conduct their business in a very different way than the way that Huawei does. Huawei does not consider human rights impact and we believe that American businesses can and should do that. To the extent that Huawei might be a third party engaged in these sorts of transactions, obviously we have called attention to that in the past and we will continue to call attention to the ways in which Huawei might be complicit in human rights abuses.

MR ICE: Very good. Okay, again, we have an open question queue. If you have a question, please dial 1-0.

Okay, Rosiland, we’ll let you go with your follow-up.

QUESTION: Yes. So the follow-up is: Will the principles be used by the U.S. Government to work on any potential further sanctions under current practices?

MR BUSBY: To the extent that the U.S. imposes sanctions on foreign entities, foreign governments, or foreign government officials, that is generally based on human rights abuses, corruption, or other provisions provided for under U.S. law. So this guidance will not be the basis for sanctions, but that said, this guidance draws on the same human rights standards that are used to sanction overseas entities, individuals, or governments.

MR ICE: Okay, we’ll continue to hold for a moment. We do have, again, an open queue. If anyone has any questions, please dial 1-0.

Okay, last call for questions.

(No response.)

Okay, everyone. Once again, let me thank you for your participation today. I also would like to thank Acting Principal Deputy Assistant Secretary Busby for his participation today. We very much appreciate you coming in. The embargo is now lifted. Thank you.

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