Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations
2012; Routledge; Volume: 54; Issue: 1 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoTABLE 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. Amendments to TWEA and IEEPA 1. Berman Amendment 2. Free Trade in Ideas Act C. OFAC's Implementation of the Amendments II. OFAC's REGULATIONS AND SOCIAL MEDIA A. OFAC's Regulations Construed Against Hypothetical Social Media Service B. Guidance from OFAC's Interpretative Letters III. OFAC's INFORMATIONAL EXCEPTIONS AND THE REQUIREMENTS OF THE INFORMATIONAL AMENDMENTS A. Prohibition on Indirect Regulation B. Definition of Information IV. LESSONS FOR SOCIAL MEDIA FROM CASE LAW A. Standard of Judicial Review: Chevron Test B. Traditional Media Case Law 1. Walsh: Scope of the Prohibition on Indirect' Regulation 2. Cernuda: First Amendment and the Scope of Informational Materials 3. Capital Cities/ABC: Tangibility and the Scope of Informational Materials 4. Emergency Coalition: Effect of the Amendments'Prefatory Language C. Analysis and Lessons for Social Media 1. Intangibility 2. Effect of First Amendment Protection 3. 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 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 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 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) 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. …
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