The Unintended Consequences of U.S. Export Restrictions on Software and Online Services for American Foreign Policy and Human Rights

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TABLE OF CONTENTS

  I. Introduction
 II. The Landscape of U.S. Trade Sanctions
     A. Policy Rationales
     B. Regulatory Framework
III. A Critical Analysis of Sanctions
     A. Sanctions Are Ineffective and May Have Unintended
        Consequences
     B. Sanctions Impose Suffering on Innocent Citizens of the
        Target Country
 IV. Regulatory Confusion Prevents the Legal Export
     of ICT
  V. ICT Are Useful Tools for the Promotion of Human
     Rights
     A. Online Organization and SMS--Ukraine's Orange
        Revolution
     B. Circumvention Tools--Breaching the Great Firewall of
        China
     C. Social Networks, Twitter, and Modern ICT--Election
        Protests in Moldova and Iran
 VI. Conclusion

I. INTRODUCTION

On June 12, 2009, Iran held a presidential election that many believed would be a close race between Mahmoud Ahmadinejad, the incumbent, and Mir Hossein Mousavi, a reformist and former prime minister. (1) The result, however, was a landslide for Ahmadinejad that was quickly dismissed as a fraud by both the Iranian opposition and members of the Western media. (2) Enraged, opposition supporters took to the streets in what has been described as the "biggest antigovernment protests since the 1979 Islamic revolution." (3) As these initial protests subsided and the Guardian Council refused to annul the results, Mousavi called on his supporters to continue "legal" protests. (4) Heeding his words, the opposition staged new protests in August, (5) September, (6) November, (7) December, (8) and February. (9)

These protestors are unique not only in their uncharacteristic boldness, but also in the degree to which they have made use of new online communications platforms to organize and share information, both amongst themselves and with the outside world. Twitter in particular has emerged as a technological "white knight," lauded by the media as a source of information on the protest movement. (10) It was seen as so instrumental to the Iranian protesters that the State Department asked the company to delay a network upgrade so that service would not be interrupted during waking hours in Tehran. (11) Given the significance of the protests, it is perhaps understandable that an awkward fact was overlooked: at the time, providing Twitter to users in Iran was illegal. (12)

The U.S. is the world leader in unilateral trade sanctions. (13) Despite a great deal of scholarship from a wide variety of disciplines condemning such measures as ineffective and harmful, (14) the U.S. maintains a complex system of sanctions programs. (15) Regulations administered by the Office of Foreign Assets Control ("OFAC") in the Department of the Treasury targeting Iran, Cuba, and certain areas of Sudan are particularly egregious, often effectively prohibiting all exports of any goods, technologies, or services. (16)

Confronted with the example provided by the protesters' use of U.S.-developed online communications platforms in post-election Iran, however, the U.S. government has recognized that prohibiting citizens in autocratic regimes from accessing such technology is inimical to the foreign policy objectives that animate the U.S. sanctions regime. In light of this revelation, the Department of the Treasury has recently amended the Cuban, Sudanese, and Iranian sanctions programs to authorize the export of publicly-available mass market online services "incident to the exchange of personal communications over the Internet" without a license. (17)

While these measures represent a good first step in reforming the sanctions programs affecting information and communication technologies ("ICT"), they do not go far enough. The "Twitter Revolution" in Iran may have focused government attention on the pernicious effects of export controls on ICT in that country and spurred the Department of the Treasury to address this issue, but similar effects may still be present elsewhere due to export controls maintained by the Department of Commerce on mass market software. …