Information wants to be free (of sanctions): why the president cannot prohibit foreign access to social media under U.S. export regulations.

• Author: Taylor, III, Jarred O.
• Position: NOTES

TABLE OF CONTENTS INTRODUCTION I. OVERVIEW OF THE PRESIDENT'S EXPORT REGULATORY AUTHORITY A. TWEA, IEEPA, and the President's Delegation of Power to OFAC B. The Informational Amendments to TWEA and IEEPA 1. The Berman Amendment 2. The Free Trade in Ideas Act C. OFAC's Implementation of the Informational Amendments II. OFAC's REGULATIONS AND SOCIAL MEDIA A. OFAC's Regulations Construed Against a Hypothetical Social Media Service B. Guidance from OFAC's Interpretative Letters III. OFAC's INFORMATIONAL EXCEPTIONS AND THE REQUIREMENTS OF THE INFORMATIONAL AMENDMENTS A. The Prohibition on Indirect Regulation B. Definition of Information IV. LESSONS FOR SOCIAL MEDIA FROM CASE LAW A. The Standard of Judicial Review: The Chevron Test B. Traditional Media Case Law 1. Walsh: The Scope of the Prohibition on "Indirect'" Regulation 2. Cernuda: The First Amendment and the Scope of "Informational Materials" 3. Capital Cities/ABC: Tangibility and the Scope of "Informational Materials" 4. Emergency Coalition: The Effect of the Informational Amendments'Prefatory Language C. Analysis and Lessons for Social Media 1. Intangibility 2. Effect of First Amendment Protection 3. The Relevance of Legislative History 4. Effect on Indirect Regulation Theory 5. Disparate Treatment Based on Medium 6. Relationship to the President's Foreign Affairs Powers V. RECOMMENDATIONS CONCLUSION "The fact that we disapprove of the government of a particular country ought not to inhibit our dialog with the people who suffer under those governments.... We are strongest and most influential when we embody the freedoms to which others aspire." (1)--Rep. Howard L. Berman

INTRODUCTION

Social media and other digital technologies play a crucial role in assisting ordinary citizens to speak up and organize themselves against repressive governments. (2) One of the principal catalysts of the Arab Spring, (3) for example, has been social media's "power to put a human face on political oppression ... [through] stories told and retold on Facebook, Twitter, and YouTube in ways that inspire[] dissidents to organize protests, criticize their governments, and spread ideas about democracy." (4) Social media helps to obviate collective action problems by enabling "a combination of real-time and group coordination that helps tip the balance" away from governments in favor of citizen activists. (5) There is perhaps no better confirmation of social media's usefulness to popular dissent than the decisions by Egyptian, Syrian, Chinese, and Libyan leaders to shut off or filter Internet access amidst widespread protests in their countries. (6)

Censorship by authoritarian governments, however, is not the only reason that users sometimes cannot reach social media services; sometimes, the American companies producing social media services prevent users in certain countries from accessing them. (7) These companies do not restrict access because of disagreement with foreign users' revolutionary causes; on the contrary, some social media companies quite vocally believe that their services may help promote freedom in the face of tyranny. (8) Rather, what motivates these companies to block foreign users is the fear that failing to do so would subject them to liability under America's economic sanctions regime--specifically, the export and import regulations administered by the Treasury Department's Office of Foreign Assets Control (OFAC). (9)

Export regulations are just one of many tools in America's economic sanctions arsenal. (l0) The penalties can include steep fines and even imprisonment. (11) Many export attorneys agree that U.S. export regulations cover foreign access to social media tools and advise their clients to block users in embargoed countries. (12) Faced with such potentially crippling liability, some companies have gone further to block entirely U.S.-based users if they have even a weak affiliation with a sanctioned country. (13) Although some export regulations target only those individuals appearing on a "specially designated nationals" list for a given country, smaller companies operating under tight legal budgets--or even large companies that conclude their limited resources are better spent elsewhere--may decide that blocking all users in that country is the easiest, cheapest, or safest option. (14)

Paradoxically, America's highest-ranking officials have repeatedly highlighted the critical importance of American social media in helping politically repressed populations organize and express themselves. (15) Secretary of State Hillary Clinton has actively embraced the cause of "Internet freedom," proclaiming that the United States "want[s] to put [social media] tools in the hands of people who will use them to advance democracy and human rights." (16) Indeed, in mid-2009 the State Department asked Twitter --a popular social media tool that enables users to publish and exchange short messages with each other (17)--to postpone scheduled maintenance so that the service would be available during a crucial period of protests in Iran. (18) Even President Obama has referenced social media's power to galvanize political opposition. In a 2011 speech criticizing Syria for mimicking Iran's violent response to popular uprisings, Obama remarked that "[t]he image of a young woman dying in the streets is still seared in our memory," (19) a reference to a YouTube video viewed hundreds of thousands of times around the world depicting the graphic death of twenty-six-year-old Neda Agha-Soltan in Tehran. (20)

Fortunately, the Obama administration has substantiated its support of foreign access to American social media through efforts to immunize social media companies from liability under export regulations. In March 2010, OFAC issued a general license "authorizing the exportation of certain personal Internet-based communications services--such as instant messaging, chat and email, and social networking" to Iran, Sudan, and Cuba. (21) Treasury officials boasted that the move would "foster and support the free flow of information--a basic human right--for all Iranians." (22) When President Obama announced an escalation in U.S. sanctions against Syria in August 2011, (23) OFAC issued another general license authorizing the exportation to Syria of "services incident to the exchange of personal communications over the Internet ... provided that such services are publicly available at no cost to the user." (24) And in March 2012, OFAC published interpretive guidance on the personal communications license for Iran, providing more specific examples of the types of services the general license encompasses and establishing a "favorable licensing policy" for certain services not covered by the general license. (25)

Despite these efforts, however, it is not clear that social media companies actually need any license to avoid liability under the export regulations. Although welcoming the government's willingness to make exceptions for certain countries, the Electronic Frontier Foundation (EFF)--a public interest organization dedicated to defending civil liberties online (26)--has criticized these efforts as "piecemeal" and has called for the "unlicensed distribution of communications tools and services to people in all countries of the world." (27) EFF argues that Congress affirmatively revoked the President's power to regulate the exportation of social media services, meaning that no license is required for a company to do so. (28) Specifically, in 1988, Congress amended the Trading with the Enemy Act (TWEA) (29) and the International Emergency Economic Powers Act (IEEPA) (30) to withdraw the President's "authority to regulate or prohibit, directly or indirectly, the importation from any country, or the exportation to any country, whether commercial or otherwise, of publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, or other informational materials." (31) This is known as the Berman Amendment. (32) The 1994 Free Trade in Ideas Act expanded the Berman Amendment to apply "regardless of format or medium of transmission" to "any information or informational materials." (33) It also added examples of relatively newer media to the Berman Amendment's examples of exempt media. (34)

This Note argues that the Berman Amendment and Free Trade in Ideas Act--hereinafter referred to jointly as the "Informational Amendments"--do in fact prohibit the President from regulating foreign access to American social media under the U.S. sanctions regime. (35) Some commentators have considered the effect of export restrictions on social media from a pure First Amendment perspective, (36) and others have reviewed the effect of the Informational Amendments on the regulation of more traditional media. (37) Although one author has highlighted the costs of "regulatory confusion" over the applicability of the Informational Amendments to social media, his study did not attempt to clarify the confusion. (38) This Note carries the inquiry forward by directly analyzing the Informational Amendments and OFAC's export regulations in the context of social media, primarily through the lenses of statutory interpretation and case law analysis. Although the First Amendment is critical to this inquiry, (39) courts prefer to dispose of issues on nonconstitutional grounds when possible. (40) Consequently, the First Amendment plays a supporting, rather than principal, role in this Note's argument.

Part I provides an overview of the President's export regulatory authority under TWEA and IEEPA, including the legislative history of the Informational Amendments and OFAC's implementation of informational exemptions in its export regulations. Part II analyzes OFAC's regulations as well as its interpretative letters to determine whether the Agency could indeed conclude that providing access to social media violates export regulations. Part III examines whether OFAC's regulations comport with...