Houston CEO Indicted For Not Having an Export License That He Didn’t Need
Posted by Clif Burns at 7:23 pm on April 22, 2015
Category: BIS • Criminal Penalties • Iran Sanctions • OFAC
Houston-based Smart Power Systems and its CEO Bahram Mechanic (as well as various other individuals) were indicted last week on charges that they exported certain export-controlled items to Iran without a license. The indictment alleges that certain uninterruptible power supplies, microcontrollers and digital signal processing chips, all allegedly classified as ECCNs 3A991, were transshipped through third countries to a company in Tehran, allegedly controlled by Mechanic.
Not surprisingly, the indictment tries to make the case that these run-of-the-mill electronic items are critical military goods that Iran can use to launch missiles and build nuclear bombs. Of course, the government’s credibility in its assessment of the alleged capabilities of these items is rather diminished by its claim that these items are classified as ECCN 3A991, one of the least stringent export controls under the Export Administration Regulations. At best, however, the microcontrollers are 3A991.a, which covers microprocessors meeting certain computational benchmarks. The uninterruptible power supplies are not covered at all by 3A991 and are almost certainly EAR99.
Worse, for the government, if the uninterruptible power supplies are EAR99, then the government’s theory of what laws were broken by their exports to Iran completely collapses. The indictment alleges that the defendants violated the International Emergency Economic Powers Act because no license was obtained from the Bureau of Industry and Security (“BIS”). Apparently, no one at the DOJ looked at EAR Section 746.7, which indicates that a BIS license is required only for certain items. EAR99 items are not among them.
Of course, a license from the Office of Foreign Assets Control (“OFAC”) is required to export EAR99 items from the United States to Iran. But the government is not alleging Mechanic and Smart Power needed an OFAC license; instead, it is saying they didn’t have a BIS license even though they did not need that license. If the government can’t get the law it is enforcing right, it should not try to send people to jail for violating it.
Thursday Grab Bag
Posted by Clif Burns at 8:05 am on April 16, 2015
Category: Crimea Sanctions • Criminal Penalties • Cuba Sanctions • Iran Sanctions • OFAC • Sudan • Syria
Here are a few recent developments that you may have missed:
- Last month we criticized the Department of Justice for conspiring with foreign luxury car makers to jail U.S. citizens who exported luxury cars to China to arbitrage the difference between U.S. and Chinese prices for these vehicles. Apparently, the DoJ now is having second thoughts about wasting taxpayer money and its resources on this nonsense. According to the New York Times, settlements have recently been reached in nine states where prosecutors have agreed to return seized cars to, and drop charges against, luxury car exporters. Good.
- On Monday we reported that Obama was going to drop Cuba from the list of state sponsors of terrorism, a move we thought was largely symbolic. Yesterday he did just that, and provided the 45-day notice required under the three acts that provide the basis for the list: § 6(j)(4)(A)(i)-(iii) of the Export Administration Act of 1979; § 40(f)(1)(A)(i)-(iii) of the Arms Export Control Act; and § 620A(c)(1)(A)-(C) of the Foreign Assistance Act of 1961. The linked New York Times article wrongly states that Congress can block this action with a joint resolution. Only the Arms Export Control Act provides for this blocking mechanism, and, as we noted, there’s no way that the White House will remove Cuba from the current arms embargo. So a joint resolution under the AECA would be, like the removal itself, largely symbolic
- The Office of Foreign Assets Control (“OFAC”) revised its rules on Monday to amend the Syrian Sanctions Regulations to permit certain activities with respect to written publications, including the ability to pay advances and royalties, to substantively edit manuscripts and to create marketing campaigns. These activities have been permitted for Cuba, Sudan and Iran since 2004. Don’t try this yet in Crimea which remains, bizarrely and incomprehensibly, the most heavily sanctioned place on the face of the planet
Airbnb, Man, in Havana (Apologies to Graham Greene)
Posted by Clif Burns at 3:11 pm on April 3, 2015
Category: Cuba Sanctions • OFAC
The revised Cuba sanctions created a general license for those providing travel services to authorized U.S. travelers to Cuba. The ink on the Federal Register notice was scarcely dry before room sharing service Airbnb had listings in Cuba up and running.
Of course, the remaining sanctions impose some unusual restrictions on Airbnb’s activities in Cuba. First, U.S. travelers still cannot go to Cuba for fun and mojitos; they must qualify for one of the existing general licenses, e.g., to visit family or do professional research in Cuba. Airbnb needs to get from each of its customers booking a stay in Cuba a certification of the particular section of the OFAC rules which authorizes them to travel to Cuba. These records must be maintained by Airbnb for five years.
Second, Airbnb may only provide these services to U.S. persons because the general license covers travel services for travel authorized by the Cuba sanctions. Those sanctions only authorize travel by U.S. persons, so Airbnb cannot book rooms for Canadians or Italians. (There’s an argument that “authorized” might also mean “not forbidden” which would allow Airbnb to serve non-U.S. customers, but, for the moment, Airbnb is taking the conservative position.)
Third, the new sanctions do not permit Airbnb to provide non-travel related services in connection with these bookings. So, Airbnb cannot help the Cuban “hosts” design their listing or edit their photographs. Even so, many of the listings look like interesting places to stay, even though hot water, Internet, and other ordinary amenities may well be missing. I could, for one, happily stay in the Havana apartment shown in the picture to the right — particularly at its listed price of $56 per night. And sometimes I think that not having access to the Internet on vacation might actually be a good thing!
White House Fires First Salvo at Chinese Government Hacking Activities
Posted by Clif Burns at 12:47 pm on April 2, 2015
Category: China • Cyber Weapons • Economic Sanctions • OFAC
Yesterday the Office of Foreign Assets Control published an executive order and accompanying FAQs under which the White House establishes the circumstances under which it will add certain persons and entities engaged in hacking computers and networks in the United States to the Specially Designated Nationals and Blocked Persons list. U.S. persons would be prohibited from engaging in any transactions with any of the designated cyberviolaters and all property of the cyberviolaters that comes into the United States or under the control of U.S. persons would required to be blocked.
Unlike most executive orders of this type, no parties have been designated yet under its authority; it is purely prospective in nature. This suggests that the order is, for the moment, mostly a diplomatic salvo and that its likely target is China. The numerous cyber attacks on the United States by China, including the recent Anthem breach, have been well documented and just as vociferously denied (in a clear methinks the lady doth protest too much” fashion) by the Chinese government.
Whether this will be effective in deterring China remains to be seen. One response by China to any future designation might be to double down and engage in cyber retaliation. Given the asymmetric nature of cyber warfare between the U.S. and China, due to the fact that the U.S. is more connected and more vulnerable than China, such retaliation cannot be discounted.
An additional point should be made on these new sanctions. I have seen some popular tech media and bloggers suggest that the sanctions might be applied to domestic hackers, even relatively benign ones doing things similar to what got Aaron Schwartz in trouble. It is important to remember, however, that the International Emergency Economic Powers Act, under which the executive order was issued, restricts the scope of the order to blocking “any property in which any foreign country or a national thereof has any interest,” thereby preventing purely domestic application of these sanctions. A domestic hacker would have to be working on behalf of a foreign country or foreign national to be designated under the new cyber sanctions.
PayPal Has No Pals at OFAC
Posted by Clif Burns at 8:04 am on March 27, 2015
Category: OFAC • SDN List
Internet payment facilitator PayPal recently agreed to pay to the Office of Foreign Assets Control $7,658,300 in fines and penalties to settle charges that it processed 486 financial transactions involving embargoed countries and blocked parties on OFAC’s Specially Designated Nationals and Blocked Persons List (the “SDN List”). The magnitude of this penalty becomes apparent when you consider that the 486 transactions amounted to a total of $43934.02 in transactions averaging $90.40 each.
Oh, and in case you were thinking, well that’s what they get for getting caught, you should realize that these violations were, according to the Settlement Agreement, voluntarily disclosed. Worse yet, this huge fine was imposed even though PayPal cooperated with the investigation, tolled the Statute of Limitations, and sacrificed on the altar of OFAC’s wrath its compliance division’s entire management, all of whom are now looking for new employment.
What seems to have gotten OFAC’s dander up, and led to the agency calling this an “egregious” case, pretty much the ne plus ultra of regulatory misdeeds, involved PayPal’s dealings with Kursad Zafer Cire, an A.Q. Khan crony designated by OFAC under its WMD sanctions program. Although these were only 136 transactions, totalling $7091.77 and averaging $52.15 each, PayPal processed six of these transactions after its interdiction software flagged this guy. On the sixth occasion, PayPal asked Cire to fax them his passport, which he dutifully did, and even though the passport conclusively matched the information on the SDN List, the PayPal risk officer let the transaction go through.