While looking for background on the recent action of the Office of Foreign Assets Control (“OFAC”) extending a General License permitting transactions with two sanctioned Belarusian companies, I stumbled across this post at Bielar.us. That site is a DC-based blog run by dissident Belarusians opposed to the current dictatorial regime of Alexander Lukashenko. Apparently, the web hosting provider for Bielar.us blocked the anti-Lukashenko site based on — of all things — the U.S. sanctions against Lukashenko and related individuals and entities. The website was migrated to another hosting company and is now up and running again.

Of course, those familiar with the targeted, regime-based sanctions against Belarus’s dictator and his cronies might be more than a little surprised by the web hosting provider’s action and its more than slightly ironic outcome. Those sanctions target specified individuals and companies related to the Lukashenko regime only and do not target all Belarusians wherever located.

However, the web hosting provider’s terms of service used to terminate services to the dissident bloggers state:

Each individual which is a National or Citizen of a Sanctioned Country is hereby prohibited from registering or signing up with, subscribing to, or using any service of [this webhosting service], regardless of where said individual is located.

Those terms also define Belarus as a “sanctioned country,” along with Balkans, Burma, Côte d’Ivoire, Cuba, Democratic Republic of the Congo, Iran, Iraq, former Liberian Regime of Charles Taylor, North Korea, Sudan, Syria, and Zimbabwe. The terms of service’s provision that denies services to all “nationals” of Belarus clearly goes beyond the sanctions themselves.

The problem here, among other things, is that if the Internet is a public accommodation (an unsettled question at the moment), this provision in the terms of service and its application to a blogger because of his national origin might raise issues under state and federal anti-discrimination laws. This is one good reason why companies need to be careful in applying OFAC sanctions with too broad a brush.

The same hosting provider has used this provision to shut down other websites that oppose the regimes in sanctioned countries. Iranian dissident bloggers in Iran have been shut down by this hosting provider, as have anti-government bloggers in Zimbabwe.

The issue with respect to the Iranian bloggers is more difficult because the Iranian sanctions are comprehensive, unlike the targeted regime-based sanctions against Belarus and Zimbabwe. In this case, the sanctions are properly applied by the provider against the Iranian-based bloggers unless the information exception applies. And it seems to me that the information exception does apply here. Section 560.538 of the Iranian Transactions Regulations permits a U.S. company to engage in all transactions “necessary and ordinarily incident to the publishing and marketing of manuscripts, books, journals, and newspapers … in paper or electronic format.” Here, the web hosting provider is merely a publisher of the electronic content and provides no other services, including some that would be allowed under section 560.538 such as editing and formatting. Indeed, the web hosting provider’s activities would seem to have been allowed even under the old, and much-maligned, “camera-ready copy” rule.

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