E-Mails, Servers and Software : U.S. Export Controls for the Modern Era

Over the past several decades, enormous technological, economic and political changes have transformed the U.S. economy and the application of U.S. export controls. Technological advances have revolutionized the types of products available and the ways they can be exported. Software and technical data have become articles of commerce in their own right and can be exported electronically, not just physically. As a result, electronic activities defined as "exports" have increased exponentially, far in excess of economic growth. Yet despite these revolutionary changes, the basic structure of U.S. export controls has remained unaltered. The regime is outdated, but efforts at reform have ignored the controls' most fundamental structural aspect: that they look to individual export transactions as the events to be regulated. The regulation of individual transactions is so embedded in the system that many observers see it as an indelible feature. Form supersedes substance, and the system meets neither its expressly stated goal of facilitating trade nor its primary goal of promoting national security objectives. In order to reconcile these two seemingly incompatible goals, this article recommends that U.S. commercial export controls focus primarily on the identity of the exporter and the scope of the exporter's export activities, and only secondarily on specific export transactions. This "account-based" approach to export controls would reduce many current difficulties faced by U.S. exporters, by deemphasizing the often artificial and burdensome focus on discrete transactions. An account-based approach would more accurately reflect activities taking place in international commerce and allow them to be vetted for the end user/end use concerns that have become so important in export controls – and thus both address U.S. national security concerns and improve export efficiency