June 11, 2009, 11:58 AM — Facebook and Twitter should join instant messaging (IM) services and block access to U.S.-sanctioned countries in order to avoid running afoul of the government's trade embargoes, say legal experts.
However, others say that doing so would be premature and run against the U.S. government's goals regarding trade embargoes and for bringing democracy to the countries.
Computerworld spoke with two lawyers who advise companies on how to comply with bans on exports of goods and services set by the U.S. Treasury Department's Office of Foreign Assets Control (OFAC).
OFAC's sanctions currently block U.S. firms and citizens from trading with Cuba, Iran, and Sudan, as well as providing goods or services to certain institutions or individuals, called specially-designated nationals (SDNs), in Syria and North Korea, said Clif Burns, a lawyer with the Washington D.C. office of Bryan Cave LLP, and author of the ExportLawBlog.
OFAC has long fought terrorists and drug dealers through its traditional anti-money-laundering tactics, says Burns. But in recent months, the group is taking a stronger look at how curbing access to Internet services can aid in that battle, he said.
"This is an increasing area of interest to them," Burns said, citing a conversation he recently had with an unnamed official there.
OFAC did not return a request for comment.
IM move sets the tone
Though OFAC has not explicitly prohibited Web communication services, Burns says the fact that Microsoft, Google and AOL have all turned off IM services, possibly at OFAC's request, should be a clear signal.
"If you ask any lawyer who regularly practices in this area, they would say don't offer the service [to sanctioned countries]," Burns said.
This is true even if the service is completely hosted and doesn't require the downloading of IM software to users' computers, which is considered the export of a good, Burns said.
Erich Ferrari, another D.C.-based legal expert on OFAC issues, said Web 2.0 vendors need to worry about the "stigma" of their services being used by terrorist or narcotics-linked groups.
"I think Obama is starting to get focused on the cyberwar on terror, and OFAC is essentially our instrument in the financial war on terror," Ferrari said.
Facebook and Twitter did not reply to a request for comment.
Besides IM, Microsoft has been blocking access to other Windows Live services that require a user download since "late last year," confirmed Microsoft's director of product management, Dharmesh Mehta, this week.
Windows Live client applications include Movie Maker, Mail, Writer (a blog authoring tool), Photo Gallery, and others.
U.S. Web site hosting firm Blue Host was criticized earlier this spring for shutting down the blogs of users in Iran and other U.S.-sanctioned countries.
Web 2.O wields power
Ironically, in Iran, Facebook, Twitter and YouTube may help determine the outcome of this Friday's presidential election.
Reformist candidate Mir Hossein Mousavi, as well as other candidates, are using the Web services to woo Iran's youthful (30 and under) voters, which comprise nearly half of the country's 46 million eligible voters.
The Iranian government, which has jailed bloggers for anti-government satire, blocked access to Facebook last month, only to restore it after protests.
"Facebook has become the biggest pain in the neck to the Iranian government," said Mehdi Samati, an associate professor of communication at Eastern Illinois University.
Samati, who regularly travels to and communicates with friends and relatives in his home country, says no one in Iran has complained about being unable to access ostensibly-turned-off IM services such as Windows Live Messenger.
Routine attempts by the Iranian government to block access to U.S. Web sites and services are easily circumvented by Iran's tech-savvy populace, which is done by using the many free tools on the Web, Samati said.
Free speech faux pas?
This difficulty in shutting off access to services supports the view of those who argue that attempting to block services to U.S.-sanctioned countries is alarmist and runs against the long-term U.S. interest of bringing democracy to these countries.
"It is completely counterproductive to the spirits of these laws for the U.S. government to censor Twitter in Iran," said Danny O'Brien, a spokesman for international issues at the Electronic Frontier Foundation.
O'Brien notes that the Berman Amendment has long provided an exemption to embargoes for "informational" works such as books, newspapers and general Web sites.
OFAC should treat Web communication and collaboration sites and services that way too, he said.
Web services, whether blog hosters, IM or Twitter, are clearly intermediaries, O'Brien said. "They are not putting the content up themselves," he said. "This seems like the government struggling to understand Web 2.0, and the result being inconsistent pressure from OFAC."