More on Syria from EFF

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.

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