Comments on: It Wasn’t Me, I Swear

By: Clif Burns

Clif Burns — Wed, 03 Jun 2009 18:37:46 +0000

I also left a comment on that article on Computer World’s site.

And I sent an email to the reporter about the error, but I haven’t heard anything back.

By: Erich C. Ferrari

Erich C. Ferrari — Wed, 03 Jun 2009 18:34:33 +0000

I wrote on this same thing thing last night on my blog at http://www.sanctionlaw.com. I also left a comment on that article on Computer World’s site.

Exactly right. Services are certainly covered by the sanctions regulations. IM services, in particular, could materially assist in facilitating an unlicensed transaction.

I don’t know who the lawyer was, but I see why he chose to remain Anonymous. Just goes to show that there are still a lot of lawyers out there who are either not aware of what OFAC does and what the regulations cover or just don’t understand the regulations.

By: Clif Burns

Clif Burns — Wed, 03 Jun 2009 14:29:13 +0000

I agree that limitations on software exports to sanctioned countries can raise a variety of issues under the Berman Amendment and, possibly, the First Amendment. But as a compliance matter, I would still advise clients not to send software to embargoed countries or to allow it to be downloaded by users identified as coming from those countries, either by their IP address or their supplied address information.

By: Hillbilly

Hillbilly — Wed, 03 Jun 2009 14:19:13 +0000

If you look at Judge Wake’s opinion refusing Defendants motion to dismiss in US v. Alavi, he appears to accept the DoJ/OFAC position that all software is subject to the embargo, notwitstanding language in the ITR to the effect that software may qualify as information. I suggest that this position raises 1st Amendment issues in addition to questions of statutory construction, APA, and whatever remains of the delegation doctrine. Of course, there were other problems with how the district court and DoJ, OFAC, FBI and the US Attorney’s office in Phoenix handled Alavi, but given that poor Mr. Alavi was forced by finances to cop to a plea on the non-IEEPA counts after the jury deadlocked on the IEEPA charges, we’ll never have appellate review of that travesty.

By: Walter Lippmann

Walter Lippmann — Wed, 03 Jun 2009 02:50:16 +0000

Just a few weeks ago President Obama announced new initiatives under which US telecoms companies would be able to negotiate agreements with the Cuban phone company, ETECSA, to provide roaming services on the island. So this latest move by Microsoft would seem to run counter to the stated aims of US policy today. Alas, it’s not really surprising.

Washington is so very desperate to prevent Cuba from developing its high-tech, information-based economic efforts, that it will try almost anything. And blocking the US of IM isn’t the half of it.

As someone who travels to Cuba regularly as a journalist and researcher, I have observed this in any number of ways.

Here’s an English-language report on Google from a Cuban newspaper, JUVENTUD REBELDE, by its technology correspondent, Amaury E. Del Valle. I know him.

http://www.juventudrebelde.co.cu/cuba/2007-09-29/does-google-censor-cuba/

He has a report on this latest round with Microsoft IM, but it’s not out in English just yet:
http://www.juventudrebelde.cu/cuba/2009-05-29/cuba-la-red-cercada/