The Unintended Consequences of U.S. Export Restrictions on Software and Online Services for American Foreign Policy and Human Rights
Baker, Lee, Harvard Journal of Law & Technology
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
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. (18) Moreover, these recent OFAC amendments do not authorize the export of software or services for use in circumventing the Internet censorship imposed by many autocratic regimes. (19) This Note argues that all U.S. sanctions programs should include exceptions for the export of software and online services that facilitate communication and information-exchange or permit circumvention of Internet censorship to citizens of sanctioned nations. Furthermore, sanctions regulations must be clarified, especially with regard to software containing encryption. The complexity of the current regulations and the high penalties for violations disincentivize U.S. companies from offering their services to citizens of certain countries even when doing so does not violate any export controls. (20) Simplifying the sanctions programs will allow U.S. companies to provide their products and services to dissidents, human rights activists, and ordinary citizens without fear of liability.
Part II outlines the policy rationales and regulatory framework for the relevant U.S. trade sanctions regulations. Part III briefly reviews the literature on trade sanctions, highlighting common criticisms that are particularly pertinent to the context of ICT. Part IV describes situations where the lack of clarity in U.S. regulations has dissuaded companies from providing their services to dissidents, human rights groups, and other citizens in countries under limited sanctions. Part V describes the benefits of ICT for pro-democracy and human rights activists through a series of case studies. Part VI concludes with recommendations for changes to current sanctions regulations.
II. THE LANDSCAPE OF U.S. TRADE SANCTIONS
A. Policy Rationales
Trade sanction programs may be described using two metrics: the policies animating them and the particular means by which those policies are implemented. The policies may be specific and well-defined or broad and ambiguous; they may remain constant throughout the sanctions episode or change over time to reflect new circumstances and the evolving relationship between the sending and target countries. (21)
The U.S. administers a wide variety of sanctions programs guided by myriad underlying policy rationales. Such policies have included settling expropriation claims; (22) punishing a regime for supporting terrorism, violating human rights, or other wrongdoing; (23) and blocking the export of sensitive technologies for national security reasons. (24) Sanctions were also employed during the Cold War to curb the spread of communism. (25) Although not an explicitly stated goal of sanctions, they may also serve an important role in the definition, refinement, and internalization of international human rights norms, especially in recalcitrant target countries. (26)
In the paradigmatic sanctions episode, the sending nation imposes sanctions to induce the target nation to curtail behavior that it finds objectionable, under the theory that the economic loss engendered by these measures will foster discontent among the target population, which will then either overthrow the target government or pressure it into adopting the changes desired by the sending nation. (27) Sanctions may also be implemented to deter non-target nations from pursuing policies or behaviors similar to those pursued by the target nation. (28) The extent to which unilateral sanctions may have the desired effect on the target nation has been severely criticized, however, especially in cases where the target government is authoritarian or the target population otherwise lacks the means to challenge its government. (29) There may also be unstated political reasons for the imposition of sanctions. Politicians may see the imposition of sanctions as an attractive and relatively low-cost way to satisfy domestic pressure to "do something" in response to objectionable behavior by the target nation. (30) Similarly, sanctions may be used to signal, to both global and domestic audiences, the sending nation's opposition to the target nation's behaviors or policies. (31) Such political considerations may interact with the policy rationales noted above to shape the final form of the sanctions regulations.
B. Regulatory Framework
The U.S. sanctions regime is a fragmented and complicated system.
As of 2003, more than five agencies enforced a variety of export controls pursuant to over forty statutes. (32) Within the context of ICT, however, there are two agencies whose sanctions programs are most pertinent: the Bureau of Industry and Security ("BIS") in the Department of Commerce and the Office of Foreign Assets Control ("OFAC") in the Department of the Treasury. (33) BIS and OFAC sanctions are generally administered under the Trading with the Enemy Act ("TWEA") and the International Emergency Economic Powers Act, (34) although specific OFAC sanctions have been supplemented with additional statutes. (35)
BIS administers far-reaching export controls in order to further its mission of "[a]dvanc[ing] U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty