AuthorRudy, Johnathan J.

CONTENTS I. Introduction 1 II. Emerging Technology 4 A. Artificial Intelligence 5 B. Quantum Computers 7 III. Cyber Arms Control 9 A. Arms Export Control Act 10 B. Export Administration Regulations 11 1. Export Controls on Artificial Intelligence 12 2. Export Controls on Quantum Computers 14 IV. Takings Clause 2.0 16 A. The Fifth Amendment 16 1. Public Use 17 2. Just Compensation 18 3. Seizing Technology 18 B. New Statutory Authority 19 V. Not All Roses 20 A. Export Control 20 B. Eminent Domain 21 VI. Conclusion 22 APPENDIX 23 I. INTRODUCTION

In living memory, the U.S. government has operated with a global technological advantage. Our current advantage relies on access to advanced technology developed by private industries--while simultaneously limiting our adversaries' access to that same technology. (2) The government cannot take a laissez faire approach and hope that the status quo will hold. Unless existing export control regulations are strengthened, and a new eminent domain authority is enacted, the United States risks losing its advantage and becoming beholden to Silicon Valley's whims.

The consequences of losing are clear: whoever controls emerging technologies like artificial intelligence ("AI") and quantum computers ("QC") will have the power to re-shape the world to their benefit. "Artificial intelligence is the future, not only for Russia, but for all humankind. it comes with colossal opportunities, but also threats that are difficult to predict. Whoever becomes the leader in this sphere will become the ruler of the world." (3)

The private sector is the new driver of innovation for technology with national security implications. This is a major shift away from the historical model of the federal government funding research that guided the cutting edge. (4) on October 23, 2019, Mr. Michael Brown, director of the Department of Defense (DOD) Defense Innovation Unit noted that:

[A] lack of U.S. government investment is part of the problem. Sixty years ago, most of the country's technology innovation was supported by the military. But the government's investment has been on a steady decline since the 1960s.... That leaves technology for defense and weapons systems, and humanitarian and disaster relief, to Silicon Valley. (5) When the federal government played a greater role in technological development, they also had greater control over how new technology was dispersed and used. Now that the government is more of a customer than a creator, the tech behemoths act as the gatekeepers. (6) But, unlike the federal government, Silicon Valley does not have the same incentive to limit access to emerging technology--companies see new technology through the lens of profit, while the federal government see through the lens of national security.

Recently, private U.S. companies have shown a willingness to do business with foreign competitors and a reluctance to do business with their own government. (7) In 2017, Google reentered the Chinese market after a seven-year absence by opening an artificial intelligence development center. (8) At the same time, Google chose not to renew a contract with the DoD. (9) Once the DoD contract with Google that was up for renewal became public, Google employees revolted. (10) They sent a letter to Google's CEO, Mr. Sundar Pichai, arguing "that Google should not be in the business of war. Therefore we ask that Project Maven be canceled, and that Google draft, publicize and enforce a clear policy stating that neither Google nor its contractors will ever build warfare technology." (11) Google capitulated, and did not renew the Project Maven contract. (12) One of America's largest technology companies, the global leader of AI development, opened an AI center in China but limited its AI business with the United States. (13) It is this dichotomy that that must be reckoned with.

The paper begins by outlining the emerging technologies at issue, mainly AI and QC (Part II). This paper then discusses the current state of export control laws, and makes recommends that those laws need to be upgraded to keep pace with technological development (Part III). This paper concludes by exploring the concept of eminent domain, bounded by the Fifth Amendment, as applied to emerging technology. This paper argues for new statutory authority to seize technology using eminent domain as a last resort (Part IV). If the United Sates limits our adversaries' access to American made emerging technology, while guaranteeing that the U.S. government will always have access to that technology, as the age-old maxim says, we can have our cake and eat it too. First, let's turn to the technology.


    In August 2018, as part of the National Defense Authorization Act for Fiscal Year 2019, Congress enacted the Export Control Reform Act of 2018 (ECRA). (14) The ECRA authorizes the Department of Commerce to "establish appropriate controls" on "emerging and foundational technologies" that are essential to the "national security of the U.S." (15) The ECRA does not define what constitutes "emerging and foundational technologies," the ECRA leaves that to an interagency process. (16) In December 2018, the Department of Commerce published an advance notice of proposed rulemaking requesting comments on, "criteria for identifying emerging technologies that are essential to U.S. national security." (17)

    For two years, the Department of Commerce took no action. On January 6, 2020, the Bureau of Industry and Security ("BIS") issued its first interim final rule which "amends the Export Administration Regulations (EAR) to make certain items subject to the EAR and to impose a license requirement for the export and reexport of those items to all destinations, except Canada." (18) Specifically, this rule restricts export, without a license, for "[g]eospatial imagery 'software' 'specially designed' for training a Deep Convolutional Neural Network to automate the analysis of geospatial imagery and point clouds...." (19) The 2018 advance notice of proposed rulemaking identified fourteen categories of interest. (20) The 2020 interim final rule is the first rule to come out of the advanced notice of proposed rulemaking and only addresses one category. (21) Two years, one problem addressed, thirteen to go.


      The DoD defines AI as "the ability of machines to perform tasks that normally require human intelligence--for example, recognizing patterns, learning from experience, drawing conclusions, making predictions, or taking action--whether digitally or as the smart software behind autonomous physical systems." (22) In the 1950s, when AI was first theorized, the goal was to "mimic human cogn[ition]" by allowing a system to learn from its own experiences and make decisions based on reasoning. (23)

      Today, AI encompasses a broad swath of modern computing types, from seemingly simple optical character recognition, to machine learning, and up to yet-to-be-realized human-level AI. (24) Both the United States and China have identified AI development as a strategic main effort. The United States has recognized that "[t]o maintain our competitive advantage, the United States will prioritize emerging technologies critical to economic growth and security, such as data science, encryption,... advanced computing technologies, and artificial intelligence." (25) The White House has requested approximately $350 million in national security-related AI funding for fiscal year 2020, out of a total budget request for $973 million in AI research and development funding spread across 28 agencies. (26)

      Like the United States, China is making direct strategic investments in developing the next generation of technology, including AI. (27) In 2017, China announced that by 2030, it plans to "become the world's major artificial intelligence innovation center." (28) China's efforts will focus on research areas including big data, cross-media perception computing, hybrid augmented intelligence, swarm intelligence, autonomous collaborative control, brain-like intelligent computing, and quantum intelligent computing. (29) China has backed that plan with a $30-billion venture capital fund. (30)

      Unlike the United States, China goes beyond legitimate direct investment in research and development and persistently engages in nation state-level intellectual property theft to fuel its ambitious 2030 goal of leapfrogging the United States. (31) "Chinese industrial policy seeks to 'introduce, digest, absorb, and re-innovate' technologies and intellectual property (IP) from around the world. This policy is carried out through state-sponsored IP theft through physical theft, cyber-enabled espionage and theft, evasion of U.S. export control laws, and counterfeiting and piracy...." (32)

      Despite direct U.S. and Chinese government investment, and Chinese theft, the private sector is driving AI innovation: "tech behemoths like Google, Microsoft, IBM and Apple, [in] the United States is where the bulk of A.I. innovation has taken place." (33) Chinese companies like "Alibaba, Tencent, and Baidu, [are] moving rapidly to close the gap." (34)

      The stakes are high. The DoD has acknowledged that "[f]ailure to adopt AI will result in legacy systems irrelevant to the defense of our people...." (35) The United States has a strategic interest in maintaining an AI advantage over countries like China, but the United States cannot become myopic in its focus on AI. Both AI and QC are synergetic, as "Google's long-term strategy is to use quantum computers for machine-learning applications." (36) Quantum computing is an equally disruptive technology on the verge of real-world applications.


      Quantum computers are an alternative to existing classical computers. Current desktop computers, smartphones, and supercomputers all work the same way. They sequentially process individual bits of data coded as either a 1 or a 0 by turning switches...

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