Executive Order has loopholes for government spyware or American-made commercial spyware
Executive Order on Prohibition on Use by the United States Government of Commercial Spyware that Poses Risks to National SecurityThe order represents a"policy of the United States Government that it shall not make operational use of commercial spyware that poses significant counterintelligence or security risks to the United States Government or significant risks of improper use by a foreign government or foreign person.
The test of whether commercial spyware is prohibited is also complex, requiring assessment of whether a commercial spyware vendor"is under the direct or effective control of a foreign government or foreign person engaged in intelligence activities, including surveillance or espionage, directed against the United States" or"maintains, transfers, or uses data obtained from the commercial spyware without authorization from the licensed end-user or the United States Government.
The Order also bars commercial spyware that"poses significant counterintelligence or security risks to the United States Government or poses significant risks of improper use by a foreign government or foreign person."
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