Plexon, Inc., a small neuroscience company located in Dallas, Texas, has agreed to pay $1.7 million in civil penalties to the Bureau of Industry and Security (“BIS”) for the export of equipment, allegedly classified as 4A994.k. and referred to as “Neural Recording Data Acquisition Systems,” to AMMS located in China and placed on the BIS Entity List for its suspected work in “brain-control weaponry.” The equipment is described as a system that “uses electrodes placed in the brains of animals to acquire data and to identify and categorize spikes made by individual neurons in the brain.”

The $1.7M penalty and an associated five-year denial of export privileges was suspended provided that Plexon completed an audit of its export operations and committed no further violations during the five-year period.

There is no indication that Plexon filed a voluntary disclosure of the matter. The phrasing of the BIS documents seem to suggest that Plexon may not have even known that the mind-reading machine went to a company in China on the Entity List.

Pursuant to an existing sales relationship, AMMS ordered the Omniplex systems through Plexon Inc’s Asia distributor. Plexon Inc. then manufactured the systems at its plant in Dallas, Texas and shipped them through its Asian distributor to AMMS

The system was not sent directly to AMMS to Plexon, and there is no indication that the distributor had revealed the end customer. Of course, under the EAR there is strict liability for this violation without regard to intent. Perhaps this lack of intent is the reason for the suspension of penalties.

A more perplexing aspect of the BIS documentation is its reliance on a proposed agency action not yet in effect. The charging documents call the system a “brain-machine interface” and reference an “Advance Notice of Proposed Rulemaking” BIS issued in 2018 and sought comment on whether export controls should be imposed on a number of emerging technologies, including “brain-machine interfaces.” In 2021, BIS issued another ANPRM on “brain-machine interfaces.” As of today, BIS has still not issued a determination that these interfaces should be export controlled. And yet, BIS cites these proposed, but unenacted, determinations and controls in the penalty documents.

Worse, the system involved is not even a brain-machine interface. In the 2021 ANPRM, BIS defined what it meant by such an interface:

BCIs provide a direct communication pathway between an enhanced or wired brain and an external device, with bidirectional information flow.

This system measures neuron activity and operates in one direction only. The system doesn’t send information to the lab rat; it only receives information about neural activity of the lab rat. So, it’s not even a brain-machine interface and even if it were it’s not yet subject to enhanced controls. Still, of course, AMMS’s presence on the Entity List was sufficient for BIS to find a violation.

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