One issue I have pondered for a while is the intersection between US sanctions laws and the internet. I specifically want to focus this week’s post on the two examples of Windows Messenger and Facebook, and expand on them to illustrate certain policy and legal discussions that can arise from this issue.
On one hand, United States persons generally cannot export software and computers to certain sanctioned countries, such as Cuba (though that will soon change to some extent), Iran, and Syria. Clearly, in the case of licensable software such as Microsoft Windows, the Department of Commerce’s Bureau of Industry and Security (BIS) has laws in place restricting and in some cases blocking the sale of certain software, especially encryption programs, to many countries. The general sale of goods (controlled or not) to many countries such as Cuba and Iran is blocked by the US Treasury Department’s Office of Foreign Assets Control (OFAC).
The US Berman Amendment created an essentially permanent carve-out in US sanctions regimes allowing for the exchange of informational materials (e.g., books, movies, music) between the US and sanctioned countries. This apparently extends to the viewing of websites and transfer of web material and e-mail. While OFAC regulations do not really appear to contemplate the internet, it would appear difficult to shut any one country off the internet or even block access to US-based websites due to the intricate web of servers that make up the internet.
E-mail appears to be treated by US laws as telecommunications and is permitted (granted you almost certainly need US software to generate e-mail). But is the use of US internet applications and websites, such as Windows Messenger, Facebook, Twitter, Yahoo! Mail, or even Charles Schwab accounts by people in sanctioned countries a form of telecommunication or do they constitute the export of a service? I am unsure as to whether OFAC has a clear answer to this, though I have heard of one case where a US person visiting his home country (under US sanctions) received a letter from OFAC asking him to explain his logging into his US investment account from a computer in the sanctioned country (apparently the issue was later resolved).
Closing Down Windows Messenger
You may have heard that Microsoft decided this week to stop offering certain Windows Live products such as Windows Messenger to users in Cuba, Iran, North Korea, Sudan, and Syria. The reason cited was apparently compliance with regulations promulgated by OFAC. The announcement is very cryptic and simply makes reference to OFAC. It is unclear whether Microsoft considers the usage of its software in sanctioned countries as the export of a service or the deemed export of sophisticated, export-controlled software.
This issue generally brings to attention another key problem facing companies seeking to implement US trade law compliance policies – their often seemingly poor knowledge of the scope of current laws. Oftentimes, the private sector in the US will take an approach vis-a-vis a sanctioned country that is considerably more restrictive than the actual US laws. For example, even though family remittances between the US and Iran are generally permitted subject to certain conditions, few banks in the US are willing to process such payments. Notably, such policies also arise from a reluctance to consistently have to make judgment calls. Some companies just shut off business with a country wholesale to avoid any possibility of problems, an understandable policy albeit one that prevents the company to avail itself of whatever pecuniary benefit US laws will allow the company to derive from the sanctioned country. This may be similar to what has driven Microsoft’s decision on Windows Messenger.
Facebook for a Change
Also this week, in light of the upcoming Iranian presidential elections, that country’s government restricted and soon after restored access to Facebook. The leading reformist candidate in that country, Mir-Hussein Mousavi, has been utilizing Facebook to mobilize young voters, which may have served as the impetus for the initial blockage. Facebook spoke out against the filtering decision by the Iranian government. Is Mousavi’s usage of the Facebook page basically a transfer of informational materials between the US and Iran, or is Facebook actually providing a service to a person in Iran – a government official running for public office in Iran, no less?
The point of these examples is to highlight the vagueness of the law on this issue. It may be that the laws have purposefully been left vague by necessity – thanks to the open nature of the internet and technologies such as proxies, it may be hard to define what constitutes providing a service to the sanctioned country and likely difficult to definitively ascertain whether a website is being accessed from Cuba, Iran, North Korea, Sudan, or anywhere else for that matter. In other words, the host of a US-based webmail service may not be able to determine if a user is physically in Cuba, and not say, Mexico.
The internet is a powerful tool that can help foster improved communications between peoples. As such, it would be best to leave this medium alone, meaning maintain the current policy that prevents the exportation of most software to sanctioned countries, but allow internet communications. Drafting regulations to enable such restrictions would be a very formidable challenge.
One can even go as far as to say that in order to facilitate (1) improved communications within the sanctioned country and between it and the outside world; and (2) private enterprise in sanctioned countries, it would be appropriate for OFAC to enable the hosting and coding by US persons of non-profit and for-profit websites belonging to non-government persons in sanctioned countries.
It would also be fitting for BIS to enable the exportation of non-dual use internet-oriented products, such as routers, fiber optic cables, internet satellites, etc. to these countries in a careful way that does not compromise our national security interests. It appears the administration plans on doing something similar with Cuba, but pushing for widespread broadband and internet use in sanctioned countries can only help those countries return to the international community in more ways than one. If we in the US say we promote the free flow of information, this should obviously extend to promoting wired and wireless broadband technologies.