New Export Rules Promote Internet Freedom

By James Vasile | March 12, 2010

Earlier this week, the Office of Foreign Assets Control announced the relaxation of rules prohibiting export of software to Iran and Sudan. The new exemptions build on a recent easing of some rules governing exporting telecommunications technology to Cuba. These moves are surely an attempt to capitalize on the Iranian election demonstrations last summer that some called the “Twitter Revolution”. They are also a sign that the Obama Administration is carrying out its plans to make internet freedom a pillar of US diplomacy.

I hope the revised OFAC rules are the beginning of a broad and nuanced re-examination of US technology export policy. They are certainly good news for Free Software developers who are currently prohibited from distributing their software in embargoed countries.

Generally speaking, US companies have been prohibited from trading with Iran and Sudan, despite some exemptions for humanitarian and medical reasons. To my knowledge, those exemptions have never been applied to Free Software. Against that backdrop of general prohibition, OFAC promulgated new exceptions allowing the exportation of “certain services and software incident to the exchange of personal communications over the Internet.” As examples, OFAC lists “instant messaging, chat and e-mail, social networking, sharing of photos and movies, web browsing and blogging.”

That list, however, is not exhaustive. The exemption is broad and applies to a wide range of technology. I asked an OFAC representative how broadly to interpret “incident to,” and he confirmed that the exemption includes such software as web servers, content management systems or operating systems on which one could run an IM client. If those are incident to personal communication, presumably much other Free Software is too.

Though the decision to loosen export regulations is a step in the right direction, it falls far short of what the Free Software world really needs: permission to publicly distribute Free Software everywhere on the planet without jumping through invisible and innumerable hoops. First, the new rules are limited to Iran and Sudan. Other embargoed countries are still off limits. Second, while “incident to personal communication” applies to a lot of software, it does not describe everything, and its limits are unclear. Third, the exception is limited to software that is publicly available at no cost to the user.

This last point deserves some extra attention. If you charge for Free Software, the exemption does not apply. Also, other export controls are still in effect. This is true no matter how you structure it. A download fee to recoup the cost of distribution would be a problem. A paid service agreement to support the software would be a problem. Accepting donations from embargoed countries could be problematic. In other words, if your project gives away software but raises money by accepting money for ancillary goods or services, those ancillary charges can run afoul of the embargo rules.

Other caveats exist (especially regarding software that does encryption), and this post isn’t meant to be legal advice on how to comply. My objective is to shed light on a decision that could signal the beginning of a gradual shift in US technology policy and a shift in the Free Software development landscape. If your project is trying to comply with export regulation, you should seek legal advice.

Export regulation is a patchwork quilt of mystifying rules. Most projects are wholly unaware that putting their code on the web might put them at risk of violating export laws they’ve never heard of. Those that try to comply face many difficulties. It’s heartening to see inter-agency cooperation aimed at simplifying the legal environment for Free Software developers. By broadening exemptions to include certain communication technologies, the government acknowledges that internet access is a fundamental human right. These are welcome signs for the SFLC and the free software community overall. I hope the Commerce Department joins in and extends the personal communication technology exemption to include trade with Cuba and Syria as well.

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