Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations
Citation: Jarred O. Taylor III (2012) Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations.
Argues that the Berman Amendment and Free Trade in Ideas Act prohibit the President from regulating foreign access to American social media under the U.S. sanctions regime. Analyzes legislation and caselaw relevance to hypothetical social media service Blabber, notes 3 strategies for Blabber:
1. Allow worldwide access. No known enforcement by OFAC against Twiter, but it is unclear whether other services that have blocked access in sanctioned countries have done so under pressure from OFAC. 2. Request an interpretive letter from OFAC. 3. Sue OFAC for improperly administering Berman and FTIA: request declaratory judgement that authorize Blabber to provide service in sanctioned countries, declares null and void OFAC regulations to the extent they regulate access to social media, and prohibits OFAC proceedings that would prohibit such access. Using Chevron, Blabber could argue congressional intent to protect all information that the first amendment protects, including online speech, and information creation.
Blabber would not need to act if Congress further amended TWEA and IEEPA or the President directed OFAC to amend its regulations.
Theoretical and practical relevance:
"Capturing Congress’s attention would likely require lobbying by the social media companies who presently block their services either out of an abundance of caution or under quiet pressure from OFAC. It is unclear whether companies would be willing to spend their own political capital on this issue."