EFF has long complained about export restrictions by the U.S. Departments of Treasury and Commerce that deny citizens access to vital communications tools. In the past, this has affected, among others, Zimbabwean activists trying to obtain hosting providers, Syrian businesspeople networking on LinkedIn, and ordinary Iranians trying to download web browsers.
The government has been responding, albeit in piecemeal fashion: in 2010, technology companies were granted a general license from the Department of Treasury’s Office of Foreign Assets Control (OFAC) to export communications tools that could “boost Internet-based communication” and the “free flow of information” Iranian, Sudanese, and Cuban citizens – but since then we’ve seen a wave of democracy activism reach Syria too, something EFF commented upon in July.
Now we've seen some movement on Syria, but not enough. On August 18, amidst increasing regime violence toward opposition forces, the White House issued an Executive Order blocking a new range of transactions, including (Section 2(b)) “the exportation, re-exportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any services to Syria,” in light of the Syrian government’s escalating violence against civilians. This seemed like very bad news for Syrians who want to use communications tools to help with the protests.
Fortunately, recognizing the importance of communications tools and social networks to Syrian activists, the Treasury Department's Office of Foreign Assets Control (OFAC) quickly issued a general license allowing the export of “certain services incident to Internet-based communications.” The license specifically notes that transactions that are not otherwise exempt from certain earlier prohibitions, and that are related to the exchange of personal communications over the Internet, are permitted. Examples specifically laid out in the license include instant messaging, chat and email, social networking, photo- and video-sharing, web browsing, and blogging. The license also lays out what is not authorized for exportation, and while the language is a little unclear, it appears to allow export of technologies and services for all purposes other than those for commercial endeavors – so democracy activists should be in the clear.
But the story doesn’t end there. Restrictions from the Department of Commerce’s Bureau of Industry and Security (BIS) still appear to prevent communications tools and services from being exported to Syrians without a license. We think that because of these restrictions, Syrians still cannot access Google products Chrome and Earth, cannot download Java, among various other tools, and cannot use hosting services like Rackspace, SuperGreenHosting and others.
So the Treasury Department’s OFAC is out of the way, but the Commerce Department’s BIS restrictions remain, meaning that companies are still blocking certain communications tools from getting to Syrians. And until the government makes the bigger step of stopping the piecemeal nature of their relaxation of restrictions, we’ll have the same problems we’ve long complained about. These sorts of export restrictions are overbroad and contain elements which have no effect on the Syrian regime, while preventing Syrian citizens from accessing a wealth of tools that are available to their activist counterparts in neighboring countries and around the world. Furthermore, the penalties that result in violations of the regulations can be severe, so amidst confusing regulations, companies appear to be implementing broad restrictions on their services rather than run any risk. This happened recently when the open-source platform SourceForge blocked the IP addresses of users in five sanctioned countries.
What Needs to Happen
Two things ought to be done here, as soon as possible. First, and most importantly, the government -- the whole government -- should remove the license requirements and restrictions for communications technologies used by democracy activists. In the short term this should happen for Syria, in light of the ongoing struggle there. In the longer term, it’s time for the U.S. to stop this piecemeal approach and affirmatively allow unlicensed distribution of communications tools and services to people in all countries of the world.
Second, companies hesitant about allowing Syrians to use communications tools and services should take the simple steps necessary to seek a BIS license. While we don't think that such licenses should be required, the process is in fact quite simple, and frankly, the Syrians cannot wait. A company that wishes to export to Syria can file an online application with the Commerce Department’s Bureau of Industry and Security (BIS) for a license, which then should be resolved within 90 days. While registration is required before applying, any company that has ever gotten an export license before is likely already registered. Alternatively, companies may also request “interpretative guidance” as to whether or not they require a license from BIS, which takes only 30 days.
EFF Wants to Help
Given the situation on the ground in Syria, we need to focus there first. We reiterate our call for the Obama administration to affirmatively make clear throughout its various agencies that providing digital communications and information tools to citizens around the world, especially those under repressive governments, is not only legal, but encouraged. And in the meantime, we challenge those companies who are concerned about the BIS restrictions to take the simple steps necessary to apply for a license. In fact, we think this is so important that EFF would be willing to help a company that wants to take these steps but doesn’t have the resources to do it. Companies should contact EFF's Legal Director, Cindy@eff.org, if you'd like our help.