ExportLawBlog

Archive for the ‘OFAC’ Category

May

25

More Border Search Shenanigans by Customs in Sanctions Case

Posted by Clif Burns at 8:51 pm on May 25, 2016

Los Angeles International Airport by Daniel Betts [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/redlegsfan21/13789084574 [cropped] Here we go again. Another case has surfaced where U.S. Customs seized computers and other electronic media from a U.S. traveler at the border, shipped them off to be imaged, rifled through the imaged contents looking for evidence and then weeks later, based on emails they found while going through the computer images, finally sought a search warrant arguing that there is probable cause that the Iran sanctions had been violated.

This almost identical scenario recently led a federal district court in Washington, DC, to toss out evidence gathered in this fashion. And neither of these cases is particularly tough: if you have the time to haul the computer from the airport after the passenger has departed, you have time to get a warrant before snooping through the computer. This is not like the typical border search where Customs looks at a suitcase before the traveler takes it with him to a foreign country.

The latest case involves a search of Idin Rafiee, a San Diego resident and U.S. citizen, who, on October 5, 2012, was traveling to London through LAX. He had a computer, an external hard drive, a smart phone and a tablet with him. A Customs agent told Mr. Rafiee that Customs was detaining his electronic media on the ground that there was reason to believe that there was child pornography on it. The media was imaged on October 9 and returned to Rafiee on Â October 13. The government did not seek a search warrant until November 1, 2012, and based the warrant on emails that it obtained from the seized media before it had obtained a warrant. Subsequently, Rafiee was charged with violating the U.S. sanctions on Iran.

The child pornography claim was a complete fabrication. There was never any evidence supporting such a belief and no such pornography, or any pornography for that matter, was alleged by the government to have been found. Instead, the only evidence the government had before it searched Rafiee’s devices was an alleged statement by a disgruntled employee that the defendant was doing business in Iran, even though the notes of the conversation with the employee produced by the GovernmentÂ did not mention Iran.

Of course, even if the Government had some valid reason to grab Rafiee’s stuff, there was no exigency once they had it to justify searching it before getting a warrant. They had all the time in the world, as their one month delay in applying for a warrant amply demonstrates. Beyond that, the notion that you can bootstrap a warrant request with evidence from the same computer you are asking to be permitted to search is, at best, ludicrous.

Not surprisingly, the Government finally dropped all charges against Rafiee on May 13, 2016, before the Court even had an opportunity to rule on Rafiee’s motion to suppress.

Photo Credit: Los Angeles International Airport by Daniel Betts [CC-BY-SA-2.0 (http://creativecommons.org/ licenses/by-sa/2.0)], via Flickr https://flic.kr/p/n1uEru [cropped]. Copyright 2014 Daniel Betts

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May

18

Burma Sanctions Continue to Sunset

Posted by Clif Burns at 5:56 pm on May 18, 2016

Category: Burma Sanctions • OFAC

Bagan by Staffan Scherz [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/aAeXsZ [cropped and processed]

Yesterday the Office of Foreign Assets ControlÂ (“OFAC”)Â amended the Burmese Sanctions Regulations to broaden the scope of permissible trade with Burma. The Burma regulations, which have been amended piecemealÂ rather than simply re-issued, remain a complex and confusing messÂ with prohibitions in one section repealed in a later section. (Why not just remove the first provision, you ask? Don’t be silly, I answer. Do you want lawyers to starve?)

So, for example, section 537.202 prohibits the “exportation â€¦ to Burma of any financial services,” which effectively eliminates all trade with Burma because transferring money to Burma is considered an “export of financial services” in OFAC-ese. But if you keep reading the regulations, then you’ll find all the way at the end of the Burma regulations another provision, section 537.529, which says the exact opposite and says that exports of financial services to Burma are authorized. Of course, as is always the case, you still can’t transfer money, er, export financial services, to any blocked party.

Of course, that was all well and good until OFAC discovered that the best port in Burma, and the one through which almost all goods went to and from Burma, was owned by Asia World, a blocked party, effectively foreclosing U.S. trade with Burma. So on December 7, 2015, issued General License No. 20 which allowed all transactions “ordinarily incident to an exportation to or from” Burma as long as it did not involve an exportation of goods to a blocked party.

Although it’s not entirely clear that shipping goods through a blocked port isn’t an export to or from a blocked party, the intent, if not the language, was clear and the port at Yangon was back in business, at least until June 7, 2016, when General License 20 was set to expire. Yesterday’s amendment moved General License No. 20 to a new section 537.532, effectively eliminating the expiration date for dealing with Yangon Port or other blocked individuals while moving goods to and from Burma.

Yesterday’s amendment also dealt with a similar problem confronting U.S. persons residing in Burma, although there was no comparable General License and this issue is now being addressed for the first time by OFAC. Blocked parties have pervasive ownership interests in Burma. Â Asia World, for example, owns toll roads, airports, hotels, electric companies and supermarkets. The new section 537.525 allows all transactions by U.S. persons “ordinarily incident to the routine and necessary maintenance within Burma,” other than transactions related to employment of a U.S. person by a blocked party. With this amendment, U.S. persons living inÂ Burma will not have to worry that they’ll have to pay OFAC a $250,000 fine on top ofÂ a $1 highway toll, a $2 bread loaf purchase or a $30 electricity bill.

Finally, the amendment is intended to permit transactions with and through almost all banks in Burma. In addition to a number of other entities, the amendmentÂ removed three blocked banks from the SDN List and from the general license in section 537.531 since it would no longer be necessary for those banks. It also added two blocked banks to that general license. Of course, this still leaves the issue that we’ve talked about before. Nothing in the SDN listings for these five banks covered by the general license references the general license. So screening software will stillÂ showÂ these banks as hits, and funds will be needlessly blocked.

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May

17

Unintended Consequences of Sanctions Intensify Syrian Refugee Crisis

Posted by Clif Burns at 8:25 am on May 17, 2016

Category: OFAC • Syria

Syrian Refugees by OÄŸuzhan Ali [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/xj5B1W [color processed]

Last week I wrote about one of the unintended consequences of OFAC’s “scorched earth” enforcement policy against banks and payment processors, namely, the blocking of funds transfers where the memo or the transferee name contains a naughty word like “Cuba” or “Isis” (you know, the name of Count Grantham’s dog on Dontown Abbey). But this excellent article published by Bloomberg News suggests that there are more serious unintended consequences, namely, the potential exacerbation of the Syrian refugee crisis.

According to the article, banks are refusing to permit transfers of funds for humanitarian relief to Syria even where such transfers may be completely legal. The article cites an effort by Christian Aid, a UK charity, to transfer funds to Syria to feed people displaced by the continuing fighting. Its bank declined to transfer the funds. Such refusals, according to sources cited by the article, are a result of banks making a “rational decision” to avoid any risk of penalties, particularly where the profits to be made from a particular funds transfer might be negligible.

“The unintended consequence here is that aid is being denied to people in desperate need of assistance,â€ said Guy [head of Christian Aid and] a former U.K. ambassador to Yemen and Lebanon. â€œIf this continues, it is possible to see a situation where those people who are often in most need of humanitarian aid are least able to access it.” â€¦ But such de-risking threatens to undermine the Westâ€™s push to stem the flow of migrants heading toward Europe from the embattled Middle East, according to Christian Aidâ€™s Guy

Of course, this situation is further complicated by OFAC’s refusal to permit humanitarian funds transfers to Syria except those made, pursuant to section 542.513, by United Nations organizations or its contractors, unlike say the broader provisions relating to humanitarian activities in Sudan. Even then, the general license prohibits any blocked entity from touching the funds, setting up the compliance nightmare for the banks involved and their understandable refusal to risk yet another mega-fine from OFAC.

Photo Credit: Syrian Refugees by OÄŸuzhan Ali [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/xj5B1W [color processed]

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May

10

OFAC in Wonderland

Posted by Clif Burns at 10:04 am on May 10, 2016

Category: Narcotics Sanctions • OFAC

Soho Mall, Panama via Soho Facebook Page http://bit.ly/1rPCNCJ [Fair Use]

Late last week, the Office of Foreign Assets Control (“OFAC”) designated the Soho Mall in Panama City, Panama, as a Specially Designated Narcotics Trafficker under the Foreign Narcotics Kingpin Sanctions Regulations. The action was taken based on OFAC allegations that the Mall was engaged in money laundering on behalf of Waked Hatum whom OFAC also designated based on its belief that heÂ and his organization wereÂ engaged in drug trafficking and money laundering.

The effect of that designation is set forth in section 598.202 of the Foreign Narcotics Kingpin Sanctions Regulations, which we cite in full because of its curiously fractured English (apparently translated from Middle English into Sanskrit before being rendered into a Modern English of sorts):

Except to the extent provided in regulations, orders, instructions, licenses, or directives issued pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to the effective date, there are blocked as of the effective date, and any date thereafter, all such property and interests in property within the United States, or within the possession or control of any United States person, which are owned or controlled by a specially designated narcotics trafficker.

“There are blocked”? Seriously?? Section 598.203 contains the normal provision prohibiting “any transaction or dealing” by a U.S. party in any “property or interest in property” of any specially designated narcotics trafficker.

With that background, General License No. 4, which permits certain transactions pertaining to the Soho Mall, comes as something of a surprise. The General License permits shipments of goods by U.S. persons to “non-designated” stores and other tenants in the mall provided the goods were ordered before May 5 and the delivery is completed prior to July 6. Yes, you read that right. The general license does relate to “non-designated” stores in the mall.

While it’s easy to understand the need for some license to wind-down operations by U.S. persons with the designated mall (a license, by the way, that was not issued), it is hard to understand the need for such a license for the non-designated stores in the mall itself. This license would only be necessary if OFAC thinks that somehow the designated mall has an “interest in” the inventory of the non-designated stores in the mall, a rather surprising idea at best. I can’t imagine what kind of interest this is other thanÂ perhaps the mall’s interest that the stores will sell their inventory so that they can pay their rent. By that logic, the mall also has an interest in all the inventory that the stores may have at other locations. So, if there is a MacDonald’s in the food court, no U.S. person can make any deliveries to any other MacDonald’s owned by the same franchisee anywhere else in the world.

It is difficult at this point to see what meaning, if any, is left for the phrase “interest in property.” Of course, OFAC, like Humpty-Dumpty in Alice in Wonderland, has little concerns for the niceties of logic and meaning

When I use a word,â€ Humpty Dumpty said in rather a scornful tone, â€œit means just what I choose it to mean â€” neither more nor less.â€
â€œThe question is,â€ said Alice, â€œwhether you can make words mean so many different things.â€

Apparently OFAC thinks that it can.

Photo Credit: Soho Mall, Panama via Soho Facebook Page http://bit.ly/1rPCNCJ [Fair Use]

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May

4

Banks Caught Between Scylla (OFAC) and Charybdis (Customer Wrath)

Posted by Clif Burns at 2:38 am on May 4, 2016

Category: Cuba Sanctions • OFAC

By now, we’ve all seen these stories. A slightly dimwitted, possibly drunk, prankster writes “I â¤ ISIS” in the memo line of a check or in the description field of an online payment service and then is shocked, shocked to learn his check or payment has not been processed. The prankster immediately takes to Twitter, swears on a stack of Marvel comic books that he’s not a terrorist, laments the utter stupidity of hisÂ bank or payment provider and then waits for a horde or reporters to gather on his steps. Within hours, reporters, bloggers and TV news crews have breathlessly reported the injustice of it all, with almost all of them saying (erroneously) that OFAC (rather than the bank) had seized the funds and with the prankster now lamenting that, as a result of this seizure, his third cousin in Venezuela will not be able to pay for the drug she needed to cure a rare river parasite infestation and would likely die in a matter of days, if not hours. Reddit then stirs up its gang of Internet trolls who vow revenge the minute they can take a break from playing Halo LVII.

It’s about time to step back from this wave of mass hysteria and take stock of what is going on here and how we got where we are. This excellent article in the Tampa Bay Tribune, besides quoting my friend Peter Quinter, sheds some light on what is going on. It starts with the story of a merchant who sells fedoras, guayaberas and other Cuban-style articles made wholly outside Cuba but sold through a site called MyCubanStore.com. Even though none of the merchandise sold is Cuban, customer payments, the merchant claims, are regularly seized or held up. The article notes that once OFAC whomped one payment service with a massive fine, the payment services and banks did what any sane business would do: they started erring on the other side, holding up, questioning or blocking anything vaguely suspicious.

Frankly, if you were in the bank or payment provider’s shoes, with OFAC standing behind you wielding an enormous hatchet and threatening mayhem if you clear as much as a nickel in error, wouldn’t you do the same thing? You want to call your store Havana Hats or Tehran Trinkets, then get used to some cash flow issues or pick another name. No one is going to risk a massive fine to clear a 50 cent fee on a $10 order from one of your customers. The answer here is not to shame the banks and the payment providers. Rather it is to insist that OFAC settle down and take a more measured approach to this issue, perhaps even issue some reassuring guidance assuring banks and others involved in clearing payments. Even that might not settle down a shell-shocked industry.

In the meantime, people, please find some other way to amuse yourselves besides seeing whether you can slip references to hardened terrorists past your local bank. Take a walk, read a poem, tutor a school kid, learn to speak Chinese, or listen to all the Shostakovich symphonies in order. If you want to play a prank, call up CVS and ask them if they have Prince Albert in a can.

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