But this new assault also reflects a dangerous creep in sanctions authorities over the past decade and highlights the need for Congress to substantially amend the International Emergency Economic Powers Act (IEEPA), the primary law that the executive branch uses to impose and enforce sanctions.
Sanctions have long been designed to cut off adversaries’ access to economic resources. In the 1950s and 1960s, however, the U.S. also used sanctions and other regulations to limit the importation of magazines and other textual material from mainland China and Vietnam. Although a federal appeals court upheld these actions in 1968, that decision predated much of the Supreme Court’s jurisprudence that has dramatically expanded the scope of First Amendment protections since the 1960s. In recent decades, U.S. courts—and most U.S. political leaders—have strongly defended the rights of publishers and publishing platforms to print the views of even individuals and organizations whose views are odious or contrary to U.S. interests.
In keeping with this approach, Congress amended IEEPA in the 1980s to ensure that sanctions would not prevent the flow of information to and from targeted countries. The so-called “Berman Amendment” stipulates that the law does not provide the authority to “regulate or prohibit, directly or indirectly” “any postal, telegraphic, telephonic, or other personal communication,” so long as there is no exchange of value. The law also cannot be used to prohibit or regulate the import or export of “any information or informational materials.” While the Berman Amendment was adopted before the modern internet, Congress passed the Free Trade in Ideas Amendment in 1994 to clarify that the IEEPA exceptions covered all information and informational materials “regardless of format or medium of transmission.”
The Trump administration already has taken an expansive view of its authority to use sanctions to regulate speech. In November 2019, the Department of Justice announced criminal charges against a U.S. citizen who allegedly violated sanctions when he traveled to North Korea to speak at a conference on cryptocurrency and blockchain technology. The Justice Department claimed that the defendant, by virtue of his presentation, had “provided highly technical information to North Korea.” Depending on the circumstances—for instance, if someone were to provide a sanctioned nation with detailed specifications for weapons construction—such conduct could go beyond mere provision of information and constitute a sanctions violation. The defendant, however, maintained that he merely presented “basic concepts accessible on the Internet” at the conference, and has entered a plea of “not guilty.” The case is ongoing.
Cruz now argues that hosting the Twitter accounts of Iranian Supreme Leader Ayatollah Ali Khamenei and Iranian Foreign Minister Mohammad Javad Zarif violates IEEPA sanctions against Iran. According to Cruz, Khamenei and Zarif use Twitter to post “anti-American disinformation” and “conspiracy theories,” and to “threaten and taunt their enemies.” Twitter has noted, however, that it gives political and military leaders in all countries broad berth because of “the public interest in learning about” their positions. It also argues that shutting down government officials’ accounts could hamper the transition of vital information during the Covid-19 pandemic.
The real question, though, is not whether Twitter is making the right choice in hosting these officials’ platforms, but whether the company violated economic sanctions by doing so. Imagine the consequences if the Department of Justice and the Treasury Department were to successfully contend that Twitter broke the law by allowing Iran’s foreign minister to use its platform to express Iranian government views. Could the Justice Department then investigate a U.S. activist organization for distributing pamphlets prepared by Iranians? Could it punish the New York Times or Washington Post for printing op-eds by a sanctioned foreign official? Could it investigate a TV news program for interviewing one?
One would hope that the courts would step in well before U.S. authorities went down this path. But outside of the area of information, the U.S has steadily expanded the reach of its sanctions powers in recent years, using them against entities with no connection to foreign powers and even against American citizens. President Trump has expanded their use even further, imposing sanctions against International Criminal Court personnel based on their efforts to investigate allegations of U.S. war crimes in Afghanistan. He also had threatened to use IEEPA to force U.S. companies to withdraw from China, and to impose tariffs on Mexico if Mexico failed to address migration at the border. These developments have led to calls from lawmakers and advocates to reform IEEPA to make it easier for Congress to shut down misuse and overreach.
Disinformation is rife across social medial platforms—this is beyond debate. Companies have the right to label posts and to shut down the accounts of individuals who violate their terms of service, and they must step up their efforts to ensure that hostile foreign nations—including those subject to sanctions—cannot spread lies and propaganda to unwitting American audiences. But a private company cracking down on covert disinformation campaigns where a foreign government is concealing its hand to influence Americans is very different from the U.S. government punishing an American company for allowing a recognized foreign official to state his government’s official views. Congress should amend IEEPA to strengthen its protections for free speech rights and to limit the potential for other types of abuse, not try to weaponize it against U.S. companies that have angered the administration.
This post was created with our nice and easy submission form. Create your post!