EFF posted an update on the situation regarding the export of digital speech tools from the United States to sanctioned countries like Syria. The good news is that in its recent escalation of sanctions against Syria, the Obama administration provided a general license for certain Internet technologies related to the exchange of personal communications online. The bad news is that the Commerce Department continues to prohibit the export of certain tools and services. EFF is stepping up and offering to help willing companies get licenses or advisory opinions to make their tools available.
Underneath all of this is an important issue: under several amendments to the President’s export regulation powers, these executive agencies arguably do not have the power to control exports of digital speech tools in the first place. The Berman Amendment — and later the Free Trade in Ideas Amendment — prohibit the President from regulating the export or import of “information or informational materials.” The President may not regulate information either directly or indirectly.
A couple of weeks ago, the William and Mary Law Review approved my proposal to write my student note on this very argument. I will study cases from the past decades that have interpreted those amendments in the context of other media — such as book publishing, live sport broadcasting, and paintings — and then go through both a statutory analysis and policy argument that will show that it is not only illegal for the President to regulate the export of digital speech tools, but also in our best foreign policy interests.
More to come as I develop my research, but kudos to EFF for keeping the pressure up and offering to help out here. It’s an important issue and will likely continue to be so as the “Arab Spring” and related movements persist.