On November 19, 2018, the Bureau of Industry and Security (BIS) published an Advanced Notice of Proposed Rulemaking (Notice) seeking comments from industry on how to define and identify “emerging technologies” that currently are not export controlled but which ought to be because they are “essential to the national security of the United States.” Yes, you read that correctly – BIS seeks industry input as to whether it should subject industry’s emerging technologies to export controls and, by extension, to likely review by the Committee on Foreign Investment in the United States (CFIUS) of any sales or control of such technology to foreign investors. For those who have something to say about this impending regulatory storm, comments on the Notice are due to BIS by December 19, 2018.

Speak Now or Forever Hold Emerging Technology at Bay

In terms of substance and scope, comments on this Notice are likely to make an enduring impact on (i) the foreign availability of certain emerging technologies and the respective controls imposed on their sale and transfer, (ii) the extent of CFIUS review pertaining to any sales or control of such technology to foreign investors, and (iii) the economy as a whole. Given the complexity of the task proposed in the Notice, it would have undoubtedly been wiser – or certainly more accommodating to the soon-to-be governed masses – for BIS to have opted for an extended comment period in which stakeholders are allowed to submit thoughtful, reasoned responses.

The breadth and depth of comments sought by BIS reflect an earnest ignorance of the emerging technology space. Specifically, BIS asks for thoughts on the following:

  • How to define emerging technology to assist identification of such technology in the future;
  • Criteria to apply to determine whether there are specific technologies within these general categories that are important to U.S. national security;
  • Courses to identify such technologies;
  • Other general technology categories that warrant review to identify emerging technologies that are important to U.S. national security;
  • The status of development of these technologies in the United States and other countries;
  • The impact specific emerging technology controls would have on U.S. technological leadership; and
  • Any other approaches to the issue of identifying emerging technologies important to U.S. national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control.

Despite the hard 30-day deadline, we strongly recommend that stakeholders in any of the representative technology categories listed below submit a comment to BIS as to whether the technology is “essential to the national security of the United States.”

Technology and Subcategories:


  • Nanobiology
  • Synthetic biology
  • Genomic and genetic engineering, or Neurotech

AI and machine learning technology

  • Neural networks and deep learning (e.g., brain modeling, time series prediction, classification)
  • Evolution and genetic computation (e.g., genetic algorithms, genetic programming)
  • Reinforcement learning
  • Computer vision (e.g., object recognition, image understanding)
  • Expert systems (e.g., decision support systems, teaching systems)
  • Speech and audio processing (e.g., speech recognition and production)
  • Natural language processing (e.g., machine translation)
  • Planning (e.g., scheduling, game playing)
  • Audio and video manipulation technologies (e.g., voice cloning, deepfakes)
  • AI cloud technologies, or AI chipsets

Position, navigation, and timing (PNT) technology

Microprocessor technology

  • Systems-on-Chip (SoC)
  • Stacked Memory on Chip

Advanced computing technology

  • Memory-centric logic

Data analytics technology

  • Visualization
  • Automated analysis algorithms
  • Context-aware computing

Quantum information and sensing technology

  • Quantum computing
  • Quantum encryption
  • Quantum sensing

Logistics technology

  • Mobile electric power
  • Modeling and simulation
  • Total asset visibility
  • Distribution-based logistics systems (DBLS)

Additive manufacturing

  • 3D printing


  • Micro-drone and micro-robotic systems
  • Swarming technology
  • Self-assembling robots
  • Molecular robotics
  • Robot compliers
  • Smart Dust

Brain-computer interfaces

  • Neural-controlled interface
  • Mind-machine interfaces
  • Direct neural interfaces
  • Brain-machine interfaces


  • Flight control algorithms
  • Propulsion technologies
  • Thermal protection systems
  • Specialized materials (for structures, sensors, etc.)

Advanced materials

  • Adaptive camouflage
  • Functional textiles (e.g., advanced fiber and fabric technology)
  • Biomaterials

Advanced surveillance technologies

  • Faceprint and voiceprint technologies

Overlap of Export Controls and CFIUS: Why Your Comments Are Crucial 

Industry comments will be the first step in BIS’s move toward establishing a framework of controls over emerging and foundational technologies that are essential to U.S. national security. Some may recall that in Section 1758 of the Export Control Reform Act, Congress provided for an ongoing, interagency review of emerging and foundational technologies and industries wherein the jurisdiction of CFIUS ought to be expanded. Accordingly, entities involved in the production, design, testing, manufacture, fabrication, or development of identified emerging and foundational technologies may face CFIUS review prior to accepting foreign investment that could afford the investor:

  • Access to any material nonpublic technical information in the possession of the pilot program U.S. business;
  • Membership or observer rights on the board of directors or equivalent governing body of the pilot program U.S. business or the right to nominate an individual to a position on the board of directors or equivalent governing body of the pilot program U.S. business; or
  • Any involvement, other than through voting of shares, in substantive decision-making of the pilot program U.S. business regarding the use, development, acquisition, or release of critical technology.

Potential Legal Implications

In light of the potential impact and short comment deadline, companies in the emerging technology arena will want to ensure their feedback focuses on the business and legal implications arising from the impending regulatory changes. In particular, note that:

  • BIS will not look to expand jurisdiction over technologies not subject to the Export Administration Regulations, such as “fundamental research”;
  • BIS does not seek to alter existing controls on technology already specifically described in the Commerce Control List;
  • BIS does not seek comments regarding foundational technology (those will be addressed in a separate notice); and
  • BIS does, however, seek comments on treating emerging and foundational technologies as separate types of technology.

These are serious issues that warrant careful attention. Accordingly, we recommend that each of you put down the eggnog (at least temporarily) and give the Notice a careful read. We further recommend that your counsel or industry group assist you in crafting the response.