The Fayetteville Observer provides details of an ongoing investigation of Raleigh-based Law Enforcement Associates, Inc. by the Bureau of Industry and Security (“BIS”) with respect to alleged unlicensed exports of surveillance equipment to Morocco, Egypt, the Netherlands, and Great Britain. The investigation started with the seizure of a van outfitted with covert listening gear that was destined for Morocco.

Alert readers will probably immediately wonder about BIS’s “no see through” rule, which looks at the proper classification of an item independently of its component parts. That rule is found as Interpretation 2 in section 770.2 of the Export Administration Regulations.

There are two requirements for the “no see through” rule to apply. First, the part must be physically integrated into the unit to be exported. Second, the parts must be:

normal and usual components of the machine or equipment being exported [and] the physical incorporation is not used as a device to evade the requirement for a license

The issue here is whether the “normal and usual component” requirement is met. The answer to that requires the answer to a more-or-less metaphysical question. If the item being exported is seen as a van, then arguably surreptitious listening devices are not normal and usual components (unless there is some dealer option I’ve missed). But, if the exported item is seen as a “surveillance van,” the listening devices are almost certainly normal and usual components. So to answer that question you’ll need to dig out your copy of Aristotle’s Metaphysics and reflect upon the difference between accident (συμβεβεκός) and essence (το τι ην ειναι). Good luck, as Plato used to say.

An alternate theory is that maybe BIS thinks that the van is itself the listening device covered by ECCN 5A980. That theory founders because that ECCN only covers items that are “primarily useful” for “surreptitious interception of wire, oral, or electronic communications.” My guess is that — without recourse to Aristotle — it is pretty easy to determine that the van is primarily useful for driving and, if sufficiently tricked out, for sleeping, not for surreptitious listening.

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