July 6, 2011 | By Cindy Cohn and Jillian York

EFF to Obama Administration: Syrians Deserve Access to Communications and Information Tools

With protests raging throughout the country, the Syrian government is responding with deadly force. Citizens seeking freedom are relying on digital tools to organize and communicate -- so much so that the government temporarily shut off Internet access. The parallels to the Iranian uprising in 2009 are striking, and they are not lost on the Obama Administration. In fact, President Obama explicitly linked the current Syrian situation with the Iranian uprisings of 2009, noting that “Syria has followed its Iranian ally” in violently responding to peaceful protests. “The image of a young woman dying in the streets is still seared in our memory,” he recalled, referring to the YouTube video of 26-year-old Neda Agha-Soltan dying from a gunshot wound in Tehran.

Yet while the U.S. Treasury Department formally recognized the need for personal communications tools in the case of Iran (and Sudan and Cuba) in March 2010, it remains silent about Syria. This must change.

In March 2010, the U.S. Treasury Department announced that it was amending its trade restrictions for Iran, Sudan, and Cuba to allow the export of "certain services and software incident to the exchange of personal communications over the Internet,” such as social networking, instant messenger, photo sharing, and e-mail products. EFF applauded this action, which cleared the way for American companies to distribute important free speech tools to individuals who would otherwise struggle to make their voices heard. However, even at that time EFF noted the continued ambiguity over regulations for other countries, including Syria. We encouraged the Obama administration to continue proactively reviewing export rules and to clear any ambiguity for Internet companies who want to offer their services in otherwise-restricted countries.

For Syria, the time for such clarification is now. Exports to Syria are controlled by the Export Administration Regulations (administered by the Commerce Department), the Syria Sanctions Regulations (administered by the Treasury Department), and the Syria Accountability Act (signed by President Bush in 2004). Among these regulations are complicated rules and exceptions for certain technologies, software, and information, and it is anything but clear how they all interact. In the midst of such complexity, and severe penalties for violations, who can blame companies for playing it conservative and restricting all Syrian users from their products?

And it seems that the companies are in fact being conservative. We have indications that Google Chrome and Earth and Code are not available in Syria, nor are some Microsoft downloads and iTunes with its access to podcasts from around the world, all due to concerns about U.S. government export restrictions. There are likely others.

In fact, there is reason to believe that U.S. law does permit web companies to make certain services available to Syrian citizens. First, the Treasury Department’s embargos for Syria specifically exempt from regulation “any postal, telegraphic, telephonic, or other personal communication that does not involve the transfer of anything of value.” Certainly instant messengers, e-mail programs, or social networks can be considered “personal communication.” Furthermore, the Export Administration Regulations specifically exempt the export of publicly available, mass market encryption software that is published for free and anonymous download.

More broadly, however, the 1988 Berman Amendment (specifically, these amendments added section 5(b)(4) to the Trading with the Enemy Act and section 1702(b)(2) to the International Emergency Economic Powers Act), strips the President of his power to “directly or indirectly” regulate the export of “information and informational materials” – a definition expanded by the 1994 Free Trade in Ideas Amendment to include all such materials “whether commercial or otherwise, regardless of format or medium of transmission.” Regrettably, and without any apparent basis for doing so, the Treasury Department has narrowly construed these amendments when implementing them in export regulations. For example, the Treasury Department continues to regulate export transactions related to the “substantive or artistic alteration or enhancement of informational materials” as well as the “provision of services to market, produce or co-produce, create or assist in the creation of information and informational materials.”

Yet even if there are ways to thread through the restrictions, the lack of clarity is plainly having an effect. And Syrians should not have to wait. The Obama Administration should proactively and definitively make clear that providing digital communications and information tools to citizens of otherwise-restricted countries like Syria is not only legal, but encouraged.

Such a declaration would fall in line with the administration’s recent statements regarding both Syria and broader Internet freedom, and would also be consistent with the Administration’s rationale for previously amending export controls for other countries. When the Treasury Department deregulated exports of Internet products to Iran, for example, it believed it would “foster and support the free flow of information – a basic human right – for all Iranians." The State Department also concluded that the free flow of information in Iran was “essential to the national interest of the United States.” The same should be true for Syrians and Syria.

Without the availability of U.S.-based digital communication and information tools, the video of the young Neda’s death would likely never have been shared at all. It’s time for the Obama administration to make clear to the people of Syria, and of other repressive regimes around the world, that the U.S. government will not block their access to the digital communication and information tools they need to help them build a more free society.

Special thanks to EFF intern Jarred Taylor for assisting with legal analysis


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