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Translating Norms to the Digital Age

Technology and the Free Flow of Information under U.S. Sanctions
  • and Sonia Phene
December 4, 2013 |
Increasingly, the free flow of information and the ability to communicate is considered a human right that needs to be protected online as well as offline, especially in the most repressive countries in the world. The 2009 Green Movement in Iran and the Arab Spring were powerful examples of the new technological reality we live in. However, comprehensive U.S. sanctions that ban the export of goods and services to Iran, Syria, Sudan, Cuba, and North Korea remain largely outdated in recognizing how communications technology can benefit both the civilian population and serve broader American foreign policy goals. Instead, these restrictions have negative consequences on the population, inadvertently aiding the repressive regimes that seek to control access to information within their borders. In this paper, we offer a comprehensive analysis of how exceptions and authorizations for information and personal communication technology have been integrated into various country-specific sanctions regimes, especially since 2009. We argue that the recent evolution mirrors the 1990s “smart sanctions” reform process and the provisions allowing the export of humanitarian goods like food and medical supplies to sanctioned countries in an attempt to minimize harm to ordinary individuals. Drawing on existing precedents, we offer a series of recommendations aimed at harmonizing and streamlining the patchwork of current provisions authorizing the export of critical communications technology. The goal is to update sanctions in order to translate existing norms to the digital age and to make it easier and less costly for both government and private companies to act. Click here to read the full paper (pdf).

Executive Summary

The role of communications technology in enabling access to information, free expression, and political dialogue has changed dramatically since most U.S. sanctions were first imposed. The 2009 Iranian Green Movement and the Arab Spring revolutions were powerful examples of this new technological reality. Yet U.S. sanctions remain outdated in recognizing these developments that enhance the free flow of information. Sanctions regulations in some cases effectively aid repressive regimes that seek to control access to information within their borders with negative consequences on the civilian population. For example, after Google unblocked the Google Play store in August 2013 following legal clarification through a general license,[i] reports surfaced that the Iranian government had begun blocking access to the store inside Iran—an indication that U.S. sanctions may have inadvertently been doing the censorship work for the Iranian government until that point.[ii]
Five countries are currently subject to comprehensive U.S. sanctions—Iran, Syria, Cuba, Sudan, and North Korea—and are the focus of this paper.[iii] They are part of the broader sanctions system that the United States has put in place to advance its foreign policy goals, using trade restrictions as an instrument to exercise pressure on foreign governments.[iv] Today, four of the five sanctions regimes include some language authorizing the export of technology that can be used for personal communication. However, the current patchwork of provisions limits the effectiveness of these exemptions.[v] In practice, lack of legal clarity and fear of political or economic repercussions often discourage American companies from attempting to export their products to sanctioned countries. Without the ability to use U.S. technologies, citizens in sanctioned countries often rely on alternative services that may be less protective of human rights and make them even more vulnerable to surveillance and censorship by the local government. This in turn helps repressive governments to chill speech, rather than encouraging communication and access to information. In other words, sanctions may be doing the work for these regimes, weakening their overall effectiveness as an instrument of U.S. foreign policy.
We argue that the current situation resembles the “smart sanctions” debate (otherwise known as “targeted sanctions”) that took place in the late 1990s.[vi] While the overarching goal of sanctions is to pressure leaders into changing policy or taking certain actions, they also significantly impact citizens’ lives. The smart sanctions debate emerged as a result of the increasing recognition that sanctions can cause excessive harm to the civilian population—the very people the sanctions are aiming to help.[vii] In response to concerns “over the negative effects of economic sanctions on vulnerable populations and overall societies,”[viii] a reform process was initiated, leading to the development of targeted sanctions that are geared to maximize costs to the target regime while minimizing the negative impact on the general population.[ix] We have observed a similar trend with regard to personal communications technology in the past few years, and argue that these efforts need to be strengthened and institutionalized.
Since 2009, the U.S. administration and the U.S. Congress have taken a number of significant steps to update comprehensive sanctions regimes to reflect the realities of the digital age. These efforts have to helped to make existing provisions more effective, including the First Amendment-type protection built into all economic sanctions implemented under the International Emergency Economic Powers Act (IEEPA) that extend to, for example, personal communications and the ability to travel.[x]
This report offers a thorough analysis of how sanctions regimes have become more targeted with regard to information and personal communication technology in recent years. In addition to the broader trend, we observe and analyze the spillover effects from modifications to individual sanctions regimes—particularly Iran and Cuba—to other countries.[xi] We offer recommendations to harmonize these efforts in order to make communications tools available to citizens in all countries and further the foreign policy goals of the United States in the process. These reforms should also reduce the cost for private companies and government agencies that currently have to navigate similar but slightly different technology provisions in each sanctions regime, making it more expensive and time-consuming to implement the regulations. The paper is intended to inform decision and policy makers in Congress, the administration, and the broader interested public.
The paper is divided into three parts. The first part provides general background information on sanctions and the evolution of targeted sanctions. The next section outlines how exemptions and authorizations for personal communication technology have been integrated into the various country-specific sanctions in recent years, highlighting the spillover effects between them. The third part then attempts to summarize the trends, draw out the lessons learned, and provide specific recommendations to harmonize and streamline the patchwork of current provisions. The goal is to update sanctions in order to translate existing norms to the digital age, making it easier and less costly for government and for private companies to implement these provisions. Finally, the paper includes a brief section outlining further research questions and related issues. 

Summary of Recommendations

  • Updating sanctions policy to reflect the need for access to personal communications technology can be best achieved through regulation. In order to promote the free flow of information in sanctioned countries, the U.S. government should issue new General Licenses for Syria, Sudan, and Cuba based on the precedent established in General License D for Iran authorizing the export of personal communications tools. Model text for this General License is included in Supplement 1 of this paper. These principles should also apply to U.S. policy toward North Korea, but due to differences in both context and the structure of North Korean sanctions, the issue requires further study.  
  • As part of implementation and outreach, the Department of the Treasury and the Department of State should issue answers to Frequently Asked Questions (FAQs) as soon as possible after the licenses have been issued and update these FAQs on at least an annual basis.
  • The Department of the Treasury, the Department of Commerce, and the Department of State should continue to engage in a sustained and extensive outreach campaign directed at multinational, smaller, and medium sized companies across the country to educate firms about the changes.
  • Companies should swiftly react to these regulatory changes and make their personal communications technology products and services available in sanctioned countries in order to facilitate more secure communication and access to information.
  • Congress can help ensure that sanctions legislation does not inhibit the transfer of vital information and communications technologies by clarifying that access to personal communications tools and the free flow of information is protected under current and future sanctions. Model language for how Congress should approach this, by establishing a “policy of the United States” or a “sense of Congress” enabling the free flow of information in sanctioned countries, is included in Supplement 2 of this paper. This language aims to create a high-level policy while giving the Treasury Department’s Office of Foreign Assets Control (OFAC) sufficient flexibility to issue clear and actionable authorizations for personal communications tools.
  • Congress can further support the goals outlined in this paper by increasing technical expertise at the State Department and the Treasury Department, which would help the government keep definitions of personal communications tools up-to-date to reflect new technological realities.
  • Structures need to be put in place to update these regulations as needed. The Treasury Department and Department of State should revisit the regulations in a timely manner (every twelve months at a minimum) and make changes based on feedback received from outside stakeholders, including the companies themselves. This feedback may be solicited through requests for public comment on forthcoming guidance.
  • An independent Technical Advisory Committee (TAC) focusing on sanctions and information technology should bring together civil society and industry representatives to provide concrete recommendations to the Department of the Treasury, the Department of Commerce, and the Department of State aimed at strengthening and improving sanctions. The TAC’s report would also feed into the annual updates of the FAQs for these licenses.
  • Civil society should be integrated into this process to help the government and companies understand the situation on the ground in sanctioned countries and provide feedback on the technical definitions. 

Acknowledgements

The authors would like to thank a number of individuals for their guidance and assistance, namely Collin D. Anderson, Kevin Bankston, Jochai Ben-Avie, Tomas Bilbao, Brad Brooks-Rubin, Tara Maller, Aliakbar Mousavi, Dalia Haj Omar, Dlshad Othman, Chris Sabatini, Roz Thomsen, David Sullivan, Cynthia Wong, and Jillian York. In addition, we appreciate the input we have received from representatives of the various agencies and Congress. Finally, we express our gratitude to Katie Fiegenbaum and Sophia Lin, interns at the New America Foundation’s Open Technology Institute, for all their hard work. This paper does not necessarily reflect the views of these individuals.

References

[i] Danielle Kehl and Tim Maurer, “Google Play Store Unblocked in Iran,” New America Foundation, August 26, 2013, http://inthetank.newamerica.net/blog/2013/08/google-play-store-unblocked-iran (accessed December 3, 2013).
[ii] Brian Fung, “Why Google brought its app store to Syria, and what it could mean for Iran,” The Washington Post, August 27, 2013, http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/27/why-google-brought-its-app-store-to-iran-and-what-it-could-mean-for-syria/ (accessed December 3, 2013). Evidence of the blockage is based on analysis done by Internet researchers on as well as reports from Iranian users on Twitter. For example, see Mahdi Taghizadeh (Mahdi), “Android users report that @Google Play Store is blocked in #Iran now! #Filternet #Censorship #OnlyInIran” November 16, 2013, 3:40 a.m., Tweet, https://twitter.com/mahdi/status/401676264982847488 (accessed December 3, 2013).
[iii] The U.S. Secretary of State has designated Iran, Cuba, Syria, and Sudan as terror supporting countries (see "State Sponsors of Terrorism," U.S. Department of State, http://www.state.gov/j/ct/list/c14151.htm). Although North Korea was removed from the list of terror-supporting countries (see Seth McLaughlin, "White House pressed to rename North Korea as a state sponsor of terrorism," The Washington Times, April 2, 2013, http://www.washingtontimes.com/news/2013/apr/2/white-house-pressed-rename-north-korea-state-spons/), the EAR list has not been amended because other controls to North Korea including the United Nations Security Council Resolution 1718 (see "2013 Report on Foreign Policy-Based Export Controls," U.S. Department of Commerce Bureau of Industry and Security, 36,
http://beta-www.bis.doc.gov/index.php/forms-documents/doc_view/661-2013-foreign-policy-report) The Department of Commerce’s Export Administration Regulations (EAR), therefore includes North Korea in its list of Terrorist Supporting Countries under Country Group E (see “License Exceptions: Supplement No. 1 to Part 740,” US. Department of Commerce, Bureau of Industry and Security, http://www.bis.doc.gov/index.php/forms-documents/doc_view/452-supplement...).
[iv] Gary Clyde Hufbauer. Jeffrey J. Schott, Kimberly Ann Elliott, and Barbara Oegg, Economic Sanctions Reconsidered, Peterson Institute for International Economics, 3rd Edition, 168.
[v] For Iran, see Ryan Costello, "Iran sanctions stifling Iran's freedom movement," CNN, May 9, 2013, http://globalpublicsquare.blogs.cnn.com/2013/05/09/iran-sanctions-stifling-irans-freedom-movement/ (accessed December 3, 2013); For Syria see, "U.S. Treasury and Commerce Departments: Stop Silencing Syrian Voices! #FreeSyriasNet," Change.org, http://www.change.org/petitions/u-s-treasury-and-commerce-departments-stop-silencing-syrian-voices-freesyriasnet (accessed December 3, 2013); For Sudan, see Helena Puig Larrauri, "U.S. sanctions and digital activists," Let them talk, August 27, 2013,http://letthemtalk.org/2013/08/27/us-sanctions-digital-activists/ ((accessed December 3, 2013).
[vi] TG Weiss, "Sanctions as a Foreign Policy Tool: Weighing Humanitarian Impulses", Journal of Peace Research 36, no. 5 (1999): 500.
[vii] E. Shagabutdinova and J. Berejikian, "Deploying Sanctions while Protecting Human Rights: Are Humanitarian 'Smart' Sanctions Effective?" Journal of Human Rights 6, no. 1 (2007): 60.
[viii] Peter Wallensteen, Carina Staibano, and Mikael Eriksson. “Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options,” Uppsala University Department of Peace and Conflict Resolution, February 14, 2003, http://pcr.uu.se/research/smartsanctions/spits_news_and_publications/making_targeted_sanctions_effective/.
[ix] “Targeted Financial Sanctions: A Manual for Design and Implementation,” The Thomas J. Watson, Jr. Institute for International Studies, 2001, http://www.watsoninstitute.org/pub/TFS.pdf; Weiss, “Sanctions as a Foreign Policy Tool,” 499; D. W. Drezner, "How Smart are Smart Sanctions?" International Studies Review 5, no. 1 (2003): 107.
10 50 USC 1702(b).
[xi] The term spillover effect is used in several academic fields including economics and political science and has been defined as “an overflow, or spreading, of information from elsewhere...such as spillovers as that between university research and development, and firms. Knowledge spillovers mean that firms can acquire knowledge and information created by others through expenditure on industrial R&D without paying for it." (Oxford References, Dictionary of Geography.) In political science, Ernst Haas has conceptualized spillover effects further, namely in The Uniting of Europe 3rd edition (Stanford: Stanford University Press, 2004.)

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