Colleagues, I don't think this legal note about the Berman Amendment and U.S. sanctions regarding social media received much attention, so it seemed useful to share here. While I remain skeptical about the likelihood that OFAC will begin to interpret *informational materials* exemptions in the manner that the paper argues, it is really beneficial framing device for understanding the frustrations that current US law presents when it comes to technology and sanctions regimes. Where the author argues that the Executive does not have the power to regulate such exports, it seems to me that the constructive path forward has to set aside such issues and begin with general licenses for commercial services and hardware, recognizing the mandates of Berman, CISADA §103 and the general importance of the availability of information technology to the public of such countries.
Cordially, Collin Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations PDF: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3452&context=wmlr tl;dr? Here is the thrust. In light of the foregoing analysis, a social media company like the hypothetical Blabber faces three potential courses of action if it wishes to make its service available in sanctioned countries. The first option is for the company to simply maintain the status quo and allow worldwide access to its service. The strongest support for this course of action is the absence of any known enforcement of export regulations by OFAC against Twitter, despite the company making its services available worldwide; indeed, the U.S. government has done nothing but praise Twitter and ask it to make itself more available in embargoed countries, not less. On the other hand, it is unclear whether other companies that have blocked access to their services in certain countries are doing so in response to quiet pressure from OFAC or merely acting conservatively and of their own accord. The danger of a company like Blabber making its service available worldwide, of course, is the potentially crippling criminal liability if OFAC does enforce its regulations and a court finds the company’s actions to be a willful violation of the regulations. Although one could see the apparent lack of enforcement by OFAC against Twitter and other companies as a positive sign, it would be dangerous for a company to rely solely on OFAC’s historical acquiescence as assurance that the Agency will not enforce its regulations in the future. A second option is for a social media company to request an interpretative letter from OFAC that answers whether social media services are exempt from regulation. The advantage to this approach is that it lends itself to a non-adversarial and perhaps even collaborative dialogue with OFAC. Indeed, in one previous interpretative letter OFAC thanked academic publishers for their efforts “to work ... in good faith” by personally meeting with the agency to discuss and resolve ambiguities in the regulations. Unlike the status quo approach, however, an interpretative letter request brings the matter squarely to OFAC’s attention and forces the Agency to clearly rule on it. Given OFAC’s previous guidance on electronic information services, it would not be surprising if the Agency concluded that a social media service like Blabber falls outside the informational exceptions. On the other hand, an interpretative letter request might provide the social media company with an opportunity to highlight the preferential treatment that OFAC appears to give to print publishers. *Moreover, forcing OFAC to contemplate the prospect of issuing a negative interpretation for social media, and thereby publicly declaring that furnishing access to American social media in certain authoritarian countries—a practice so heartily encouraged by the State Department —is presumptively illegal, might incentivize OFAC to amend its restrictions to more clearly exempt social media services from regulation.* A final option is for a social media company to sue OFAC for improperly administering the Informational Amendments. Unless OFAC had already enforced its regulations against the company, the lawsuit should mirror the procedural posture of Capital Cities/ABC: a request for a declaratory judgment that (1) authorizes the company to provide access to its social media service in sanctioned countries, (2) declares null and void OFAC’s regulations to the extent that they regulate foreign access to social media services, and (3) prohibits any proceeding by OFAC to prohibit such access. Using Chevron, the complaint should allege that the Informational Amendments clearly express a congressional intent to exempt from regulation all information that the First Amendment protects, including online speech. The plaintiff company should further assert that Congress clearly expressed a particular purpose to immunize all transactions incidental to the creation of new electronic information. To that end, the complaint should dispute OFAC’s exclusion of information creation services from its informational exceptions, at least as applied to social media, as an usurpation of congressional intent. The complaint should also allege that regulating access to a social media service constitutes an impermissible indirect regulation of pre-existing information. In response to the argument that such an interpretation of the Informational Amendments impinges on the President’s foreign affairs prerogatives, the social media plaintiff should urge that although the President may constitutionally exercise broad, legislatively delegated powers over foreign affairs, there is no clear constitutional issue when Congress chooses to revoke aspects of that delegated authority. Finally, the plaintiff company should argue that even if the court finds Congress’s intent to be absent or ambiguous, it should not defer to OFAC’s judgment. The plaintiff should argue that the Agency’s regulations are arbitrary and capricious insofar as they presumptively prohibit services through which sanctioned users may publish electronic information but nevertheless permit services through which sanctioned users may publish print information. -- *Collin David Anderson* averysmallbird.com | @cda | Washington, D.C.
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