[liberationtech] Legal Note: Information Wants to be Free (of Sanctions)

[Collin Anderson]

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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