U.S. Adopts Strict Controls for Export of Certain Geo-Spatial Imagery Software Technology, Including Some Used for Autonomous Vehicles

The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) published an interim final rule (IFR) on January 6, 2020, requiring a license for the export of certain "Geospatial Imagery" software technology to all countries worldwide except Canada. The rule classifies the software in the 0Y521 export control series of the Commerce Control List (CCL) – specifically, in Export Control Classification Number (ECCN) 0D521.

The IFR states that no "license exceptions" are applicable, other than "GOV" (for exports made by or consigned to U.S. Government agencies). Although the rule became effective immediately, BIS is accepting comments on the interim final rule through March 6, 2020.

Covered Technology

Geospatial imagery includes technology associated with global positioning systems (GPS), satellite photography, imagery and historical data, which is applied to geographic coordinates, physical addresses, landmarks and other identifiers. The technology can be used in a variety of commercial applications, including navigation support for automobiles and drones, and remote sensing.

However, the IFR applies only to "software" that (1) is "specially designed" for training a Deep Convolutional Neural Network (DCNN) to automate the analysis of geospatial imagery and point clouds (i.e., collections of data points defined by a given coordinate system (also known as "digital surface models") and (2) meets all of the following conditions:

1. Provides a graphical user interface that enables users to identify objects (e.g., vehicles, houses, etc.) from within geospatial imagery and point clouds in order to extract positive and negative samples of an object of interest;
2. Reduces pixel variation by performing scale, color and rotational normalization on the positive samples;
3. Trains a DCNN to detect the object of interest from the positive and negative samples; and
4. Identifies objects in geospatial imagery using the trained DCNN by matching the rotational pattern from the positive samples with the rotational pattern of objects in the geospatial imagery.

Temporary Classification

The OD521 classification is intended to be temporary. The classification will automatically expire after one year, unless extended by BIS for a total period of up to three years. During that period, BIS will seek inclusion of the technology in the Wassenaar Arrangement, a multinational export control regime that covers certain conventional weapons and dual-use goods and technologies.

Should the technology not be included under the Wassenaar multilateral controls, BIS will reclassify the technology under the general catch-all ECCN of EAR99.

Requirements of the Classification

As of January 6, 2020, any person exporting covered "geospatial imagery" software (i.e., software that meets the four enumerated conditions) from the U.S. to any country in the world other than Canada must obtain a license from BIS prior to export.

In addition, companies must take care to not commit an unlawful export or "deemed export" by allowing foreign nationals (other than Canadian citizens), including members of their workforce, customers, vendors and others, whether in or outside the U.S., to have access to such technology unless such persons are U.S. citizens, green-card holders, permitted asylees or refugees, or unless a license has been granted by BIS allowing access by such individuals.

Finally, companies should also take note that geospatial imagery software that does not fall within the OD521 classification may still fall within other ECCNs in the CCL, and therefore could be subject to other license requirements.

This article was originally featured as a communications advisory on DWT.com on January 22, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.