Mailyn Fidler
Spyware is software that enables digital surveillance. A robust commercial market for spyware exists, estimated at $12 billion, with government and law enforcement agencies as prime customers. Spyware is a key destination for zero-day exploits; Google attributes over half of known zero-day exploits targeting its products to commercial spyware.
Its use is linked to human rights abuses. Spyware has been identified in efforts to monitor murdered Saudi dissident Jamal Khashoggi’s network, Egyptian opposition politician Ahmed Eltantawy, Mexican human rights advocates, Russian journalist Galina Timchenko, and Salvadoran journalist Carlos Dada, among others. The human rights harms perpetrated and risked by this technology have led multiple UN Rapporteurs to call for a moratorium on this technology’s sale and transfer.
This practice has not gone unchallenged. The U.S., both through its own laws and with other states, has pursued efforts to curb this trade. Export controls have been the primary policy approach taken toward spyware and related technologies in the past 10 years. Export controls restrict the circumstances under which an entity can export items. The main multilateral mechanism is the Wassenaar Arrangement, a voluntary mechanism through which states adopt harmonized export controls on dual-use technologies. The arrangement adopted controls on “intrusion technologies,” essentially delivery mechanisms for, among other things, spyware. The U.S. implemented domestic export controls in line with the Wassenaar controls.
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