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The U.S. Department of Commerce's Bureau of Industry and Security kicked off the New Year by enacting the agency's first export restrictions on a so-called "emerging" technology—artificial intelligence software used to analyze geospatial imagery, such as satellite images. 

The interim control took effect Monday, which means the Committee on Foreign Investment in the United States also could begin scrutinizing geospatial AI software as a technology that is critical to national security under the Foreign Investment Risk Review Modernization Act.  

Stakeholders in the AI sector had been waiting for the Commerce Department to enact controls on emerging technology for more than a year. Now, tech companies are eager to know whether their software falls under the restriction, which could cast a net over a wide range of industries, according to international trade lawyers. 

Marwa Hassoun, an international trade partner at Arent Fox in Los Angeles, wrote in an email that her "understanding is that the software may be used in a wide array of applications," including commercial and military, satellite and aircraft surveillance and real estate development. 

She and other trade lawyers also suggested that the control could apply to the AI mapping software used in self-driving cars. 

But Matthew Borman,  deputy assistant secretary of commerce for export administration, indicated while speaking at the National Council for International Trade Development earlier this week that the new regulation was "not intended to impact autonomous vehicles," according to Hassoun. 

"That being said, our clients involved in this area are still addressing for applicability—while it may not have been intended to cover, they still need to ensure it doesn't cover their self-driving software," she said. 

Companies that are making geospatial AI software must obtain permission from the Bureau of Industry and Security before exporting the tech to any country except Canada. The firms also need to know that the new control applies to "deemed exports," or transfer of software to foreign citizens in the U.S.

"Many companies have non-U.S. person employees that work on this type of technology, and while they can continue to work on the technology, access to the software may be restricted until the company obtains an authorization," Hassoun said.

Clifton Burns, a senior counsel at Crowell & Moring in Washington, D.C., who advises domestic and international clients on export controls, had a different recommendation. He advised that companies "isolate foreign employees from working on the software until authorization can be obtained."

He expected that the Commerce Department would likely grant licenses for the export of geospatial AI to allied countries while denying licenses for shipment to China and Russia, for instance.

While the interim rule is in effect, the Bureau of Industry and Security is accepting comments on the new regulation until March 6 and could issue a final rule as early as later this year, according to Hassoun. 

"We encourage companies to begin to formulate comments, both from a technical perspective to obtain clarification on the control and a regulatory perspective, such as thinking about what license exceptions may help with future exports/reexports/transfers while not compromising national security," she said. 

She also advised companies to "prepare for potential changes in the control, such as what it exactly covers and applicable license exceptions that can be used, when the final rule is released."

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