How Removing Sanctions Can Encourage Iranian Democracy

By and

Source:

February 26, 2010

Summary: The U.S. government is relaxing its limits on the export of Internet technology to Iran. Unless Washington takes further action, though, Tehran’s filters might still stop Iranians from accessing critical digital tools.

N. KASHANI and M. SADRA are the pseudonyms of U.S.-based attorneys who are specialists in U.S. export laws regarding Iran.

Last December, the State Department recommended that the U.S. government adjust its sanctions on the export of Internet technology to Iran. This was a major step toward addressing an embarrassing incongruity in U.S. foreign policy. Previously, despite the United States’ espousal of democratic ideals, Congress and multiple administrations had made it illegal for U.S. companies, citizens, or lawful permanent residents to provide Iranian citizens with certain Internet tools, including personal communications programs and anti-filtering software. As the ongoing fallout from Iran’s disputed presidential election last June has shown, such tools are critical in fighting the Iranian regime’s unprecedented campaign of suppressing information and combating political opposition by censoring media, sporadically blocking or slowing the Internet, and intimidating journalists and photographers. The recent shift in U.S. policy, then, is overdue and welcome.

But for this shift to be truly effective, Washington must take further action. This is because, although filter-busting technology exists in Iran, it is hard to come by and often unreliable. Thus some technologies no longer blocked by U.S. sanctions may still remain practically unavailable to Iranians because of Tehran’s filters. Removing sanctions on instant messaging and social-networking software is not enough: to have a concrete effect, the United States must also remove the legal impediments that prevent anti-filtration software from being lawfully exported to Iran.

Iran’s Green Movement, a loosely defined opposition to the ruling establishment, regularly ignores government prohibitions on dissent and uses various outlets to protest governmental corruption, authoritarianism, and opacity. Offline examples include scrawling anti-regime slogans and sarcastic retorts on paper currency and shouting haunting chants of “God is great” from balconies at night. Online, opposition supporters organize rallies through chat rooms and social-networking sites, disseminate videos through YouTube and various other video-sharing sites, and create simple Web sites for posting firsthand accounts of anti-government activism.

Such a reliance on technology should come as no surprise, since Iran has one of the most educated populations in the Middle East. Over 80 percent of Iranians are literate, and more than 25 percent use the Internet (the second-highest percentage in the Middle East, after Israel). And Iranians are proficient adapters of new technologies: Persian (Farsi) is now one of the ten most common languages used worldwide for blogging. This explains why the Iranian government expends great resources on slowing and censoring the Internet — and why the United States and others should remove sanctions that prevent Iranians from communicating freely, both among themselves and with the outside world.

The State Department’s recent decision means that the Obama administration will now apply broad interpretations to various “exceptions” in the Iranian Transactions Regulations, which date back to 1995.

The State Department’s recent decision means that the Obama administration will now apply broad interpretations to various “exceptions” in the Iranian Transactions Regulations, which date back to 1995 and are promulgated by the Treasury Department. Under this law, the Treasury Department prohibits U.S. persons (defined as companies, citizens, or U.S. residents, regardless of their location) from certain commercial and technological interactions with Iran.

Previously, the Treasury Department’s Office of Foreign Assets Control (OFAC), the entity charged with administering U.S. sanctions on Iran, interpreted the regulations narrowly. Few goods, services, or technologies qualified as exceptions. For example, OFAC interpreted the regulations’ telecommunications exception to allow only telephone calls — and not the sale of digital communications — between Iran and the United States. It was thus a crime for U.S. companies to provide Iranians with Internet services, including many that are standard today, such as Web browsers, instant-messaging programs, and social-networking sites. Likewise, the information exception, which allows export of informational content and materials (such as academic publications and artwork), was also narrowly construed by OFAC. This also prevented instant-messaging programs and social-networking technology from being made lawful for export to Iran.

Developments in technology rendered OFAC’s approach grossly outdated, a fact implicitly acknowledged by the State Department’s recent instructions. But the law will still reflect an antiquated view unless OFAC takes additional measures. First, OFAC must issue a general license allowing companies to provide effective technologies to Iran (or invite parties to apply for specific licenses for that purpose). Unless OFAC issues a general license, individuals and nonprofits will still be required to go through the cumbersome and often arbitrary application process currently in place. Second, OFAC must clarify whether the current information exception — which clearly excludes information itself, such as publications, films, posters, CDs, and other basic media from U.S. sanctions — also applies to the complementary software used to access it. OFAC’s longstanding interpretation meant that Internet users were free to send information to Iran, but the software needed to access it was technically prohibited. Thus, software and technology companies such as Microsoft and Google had well-founded fears of U.S. government civil or criminal action against them and consequently blocked Iranian users from using their instant-messaging software. As recently as two weeks ago, the open-source software provider SourceForge blocked its software from Iranian users, citing U.S. sanctions concerns as the reason.

Given the unprecedented and potentially fleeting nature of the Green Movement’s strength, it is imperative that OFAC clarify the new State Department directives. First, the Treasury Department could issue a general license for mass-market communications and anti-filtering software. This would not only allow for the export of existing technologies but also support engineers interested in developing technologies for future distribution and purchase. To maintain safeguards over certain sensitive technologies, OFAC and the Treasury Department’s Bureau of Industry and Security could jointly review each application, as they currently do in other contexts, such as in the approval process for the export of medicines and medical devices.

Second, the U.S. Congress should pass the Iranian Digital Empowerment Act. First introduced in December 2009 in the House, IDEA notes that U.S. sanctions on Iran have had the “unintended effect of stifling Iranians’ access to the Internet and related Internet technologies.” The bill authorizes the export of software and services that would ease communication in Iran and allow Iranians to circumvent online censorship and monitoring efforts. It would help assure those companies and individuals that provide messaging services to Iranians that their actions do not violate U.S. law.

At the same time, IDEA is careful not to directly fund such tools or their dissemination to Iran. This is vital, as any direct involvement would feed the paranoia of Iran’s senior leaders about foreign governments fomenting a “velvet revolution.” Giving any legitimacy to that claim plays into the Iranian regime’s hands by granting them circumstantial evidence of foreign meddling when they have thus far been relegated to making bare allegations.

The world has recognized the courageous struggle of Iranian citizens to have their voices heard. The Iranian government, obsessed with maintaining its power at the expense of its citizens’ freedoms, will eventually find itself on the wrong side of history. In the months ahead, the United States has the opportunity to restructure its sanctions policies so as to undermine — rather than unintentionally support — the Iranian regime’s bankrupt strategy.