Did Twitter Violate U.S. Sanctions Law?

Is Twitter breaking the law by allowing Iranian officials to post on its platform?

A group of conservative senators says yes. In February, Sen. Ted Cruz—along with Sens. Tom Cotton, Marsha Blackburn and Marco Rubio—wrote to Twitter’s CEO, Jack Dorsey, formally asking him to remove the Twitter accounts registered to Iran’s Supreme Leader Ali Khamanei, Iran’s Foreign Minister Javad Zarif, as well as “any other designated Iranian entity” subject to U.S. sanctions. The senators cited Executive Order 13876, pursuant to which President Trump designated the supreme leader in June 2019 and authorized the secretary of the treasury to designate other leaders supporting Khamanei. After Twitter declined to take down the accounts, Cruz wrote again in May, individually urging Attorney General William Barr and Treasury Secretary Steven Mnuchin to investigate Twitter for U.S. sanctions violations and to “enforce any violation through sanctions and by seeking civil and criminal penalties.”

Conservatives routinely criticize Twitter’s content moderation decisions. But Cruz’s argument breaks new ground in suggesting that the platform has breached the law. Most arguments from Republican members of Congress and the Trump administration concern Twitter’s policies: For example, Federal Communications Commission Chairman Ajit Pai has argued that because tweets by Iran’s top leader Khamenei glorify violence, in contravention of Twitter’s rules, his posts should be removed. While Pai and others have pushed for more transparency from Twitter about how it makes content decisions, they’ve stopped short of suggesting that Twitter has a legal obligation to remove certain content. Cruz, by contrast, not only believes that Twitter has violated U.S. sanctions law—he argues that the platform itself should face sanctions as well.

U.S. sanctions law is a matryoshka doll of exceptions layered within exceptions. While Cruz provides a fair reading of Treasury’s current regulations, he ignores crucial speech protections etched into U.S. sanctions law.

The Cruz Letter

In his February letter, Cruz starts with a general proposition: “American citizens and entities are prohibited from providing goods and services to the Government of Iran, pursuant to the President’s use of the International Emergency Economic Powers Act (IEEPA) … and as described in the Iranian Transactions and Sanctions Regulations.” After acknowledging that a 2014 Office of Foreign Assets Control (OFAC) general license—a document that authorizes actors to engage in activities that would otherwise be prohibited under U.S. sanctions law—excludes certain social media activities such as “social networking” from the U.S. Iran sanctions, Cruz points to an exclusion at the end of the license to explain why it doesn’t apply to Twitter’s provision of accounts to Khamenei and Zarif. (The general license in question is known as GL-D1; unlike a specific license, another type of authorization issued by OFAC, it is self-executing.) The license says that it prohibits the “exportation, re-exportation, or provision, directly or indirectly, of the services, software, or hardware … to any person whose property and interests in property are blocked pursuant to any part of 31 C.F.R. chapter V,” which includes a broad range of Iran sanctions programs, “unless their property interests are blocked solely under [Executive Order] 13599.” Because Trump blocked the property of Iran’s supreme leader and foreign minister under Executive Order 13876 last summer, their property interests are not blocked “solely pursuant to [Executive Order] 13599” as is required for the license to apply. Thus, Cruz concludes, Twitter cannot legally provide services to either Khamanei or Zarif.

But it gets worse. Because Executive Order 13876 authorizes the treasury secretary to sanction anyone found “to have materially assisted, sponsored, or provided … technological support” to a sanctioned person pursuant to that executive order, Cruz asserts that the Treasury Department has the authority to sanction Twitter for its provision of services to both men and “to the extent appropriate,” it should do so.

These sanctions could cut Twitter off from the global financial system and render it inoperable as a social media platform. But so far, Twitter has held its ground.

Not every social media company has adopted the same posture, though. As Isobel Cockrell at Coda reported in early February, a number of Iranian public figures—including journalists and sports stars—have had their posts removed and accounts suspended by Facebook-owned Instagram, possibly because of worry at Facebook over sanctions. While Instagram later restored some of these posts, the debacle underscores how powerful the specter of sanctions can be.

The Berman Amendment

So is Cruz’s legal argument correct? Not so fast.

The senator is right when he says that American citizens and entities are prohibited from providing a broad range of goods and services to Iran. Acting pursuant to the International Emergency Economic Powers Act, the premier peacetime U.S. sanctions authority, the president has authorized a range of sanctions targeting Iranian industries and leaders. (Congress has furthermore instructed the president to enhance sanctions on Iranian persons under a variety of statutes, including the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010; Countering America's Adversaries Through Sanctions Act; and Iran Threat Reduction and Human Rights Act. Most direct the president to use his authority under IEEPA.)

However, Cruz fails to mention the most important carve-out in IEEPA, which limits the president’s authority to regulate informational materials: the Berman Amendment.

Introduced by Rep. Howard Berman in the 1988 Omnibus Trade and Competitiveness Act, the Berman Amendment or “informational materials exception,” 50 U.S.C. § 1702(b)(3), limits the president’s authority to regulate informational materials under IEEPA. A reaction to several seizures of magazines and books from embargoed countries in the 1980s, the Berman Amendment is designed to promote the free exchange of ideas across borders and has been incorporated into most, but not all, U.S. sanctions authorities besides IEEPA.

Initially, OFAC narrowly interpreted the informational materials exception to exclude “intangible items,” such as telecommunications transmissions, from the definition of informational materials. Most famously, in Capital Cities/ABC, Inc. v. Brady, the U.S. District Court for the Southern District of New York rejected assertions by the ABC Television Networks that the Berman Amendment authorized it to host the 1991 Pan American Games, scheduled to take place in Cuba (then under U.S. sanctions), without special permission from OFAC. Acknowledging that “materials” was an ambiguous term encompassing both physical materials like books and intangible items, such as “ideas” “perceptions” or “data that may be worked into a more finished form,” the court nonetheless deferred to the agency’s narrow reading “since neither the Berman Amendment nor its legislative history is so clear as to make judicial deference inappropriate.” In another case, Cernuda v. Heavey, a Florida district court endorsed a more expansive view of informational materials in dicta, stating that the Berman Amendment “totally exempts from prohibition or regulation the import of ideas and information protected by the First Amendment.”

Clearly dissatisfied with the Treasury Department’s narrow reading, Congress amended the law in 1994 to clarify its intention for broad First Amendment protection. With the passage of the 1994 Free Trade and Ideas Amendment (which appeared in Section 525 of the Foreign Relations Authorization Act), Congress modified the informational materials exceptions to include the phrase “regardless of format or medium of transmission,” and to add more examples to the list of enumerated media. This made clear that whether informational communications were tangible, like a book, or intangible, like a tweet, they would fall under the Berman Amendment exception. As the 1994 House conference report explained: “[T]hese amendments … facilitate transactions and activities incident to the flow of information and informational materials without regard to the type of information, its format, or means of transmission[.]” Likewise, in United States v. Amirnazmi, the U.S. Court of Appeals for the Third Circuit acknowledged that in 1994 “Congress overrode OFAC’s interpretation to the extent that it excluded intangible materials from the definition of informational materials.”

In its current form, the Berman Amendment—codified at 50 U.S.C. § 1702(b)(3) and incorporated into the Iran Transactions and Sanctions Regulations at 31 CFR § 560.210 —says:

the authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly…the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. (Emphasis added.)

Returning to Cruz’s argument, it seems indisputable that a tweet by Khamanei or Zarif would fall squarely within the informational materials exception. While the Berman Amendment doesn’t explicitly include tweets, it says that it applies “regardless of format or medium of transmission,” suggesting that a tweet by Zarif should be regarded no differently under U.S. sanctions law than an op-ed by him in the Financial Times. Indeed, by emphasizing that its list is “not limited to” things like publications and news wire feeds, the amendment recognizes the changing nature of communications technology.

That said, the president can avoid the Berman Amendment protections by issuing sanctions pursuant to additional sanctions authorities that don’t incorporate its protections. The United Nations Participation Act, for example, expands the president’s power to apply such measures “to the extent necessary” to implement U.N. sanctions, “notwithstanding the provisions of any other law,” such as IEEPA. Along these lines, the Treasury Department issued interpretive guidance in 2017 stating that parties designated pursuant to Executive Order 13224, which was issued under the U.N. Participation Act, would not enjoy Berman Amendment protections. However, there is no additional sanctions authority at issue in Executive Order 13876, as there was in Executive Order 13224, even though both executive orders concern Iran. Further, even if there were, there are arguably no U.N. sanctions on the parties in question so as to empower the president to circumvent Berman Amendment protections.

Exceptions Within Exceptions

Assuming that tweets fall within the Berman Amendment, a legal skeptic might question why OFAC would have bothered to issue GL-D1, the general license that exempts certain social media activities, in the first place. After all, a license permits activities otherwise restricted—but the Berman Amendment would presumably cover all social media communications anyway. (Compounding the confusion is the fact that Treasury Department regulations incorporate the Berman Amendment to apply “regardless of format or medium of transmission.”)

The most benign explanation is that OFAC wants to maintain maximal flexibility in its interpretation of the Berman Amendment. Different administrations have different policy priorities and there’s likely some concern that future technologies could pose an unexpected national security risk—even if tweets currently don’t. One former OFAC official suggested that by authorizing a lot of activities that might otherwise be sanctionable under a narrow interpretation of the Berman Amendment, the agency might have been trying to retain future policy options. Issuing a general license would give OFAC the ability to alter policy in the future by simply changing the license, without necessarily addressing or changing its underlying legal interpretation of what the Berman Amendment encompasses. The alternative would be to issue an interpretive guidance document reading the Berman Amendment broadly so as to clarify that certain activities were not sanctionable—which would make narrowing that interpretation in the future a heavier lift. There may also be concerns that an inconsistent definition of the statute over time could undercut the judiciary’s inclination to defer to OFAC’s reasoning.

Another explanation is that OFAC might actually view individual tweets as fundamentally different from Twitter accounts as a whole—in which case, Cruz may be right that Khamenei’s and Zarif’s Twitter accounts do not fall within an exception to U.S. sanctions law, even though their tweets do.

This might sound confusing. But the argument goes something like this: The Berman Amendment protects the transfer of informational materials—be it letters, tweets or data. However, it doesn’t protect the storage of informational materials—whether that be a mailbox, a Twitter account or a computer server. It also doesn’t protect services—such as the other capabilities provided to Twitter users when they create an account, such as the informational analytics that Twitter makes available about a user’s tweets. So, while Khamanei’s tweets might be protected, his account and the corresponding “services” he receives from Twitter are not.

As Cruz writes in his February letter, “A Twitter account is a service. Neither GL-D1 or any other authority exempts Twitter from American sanctions.” While it’s possible that OFAC holds this view, it’s unclear whether courts would agree. After all, the amendment says that the president lacks authority to regulate “directly or indirectly”— suggesting that efforts to regulate Twitter accounts, but not tweets, would be an impermissible roundabout. And it’s hard to imagine how prohibiting Khamanei’s access to a Twitter account isn’t, when it comes to free expression, functionally the same as prohibiting his tweets.

For now, Twitter doesn’t seem immediately concerned about Cruz’s finger-wagging. In its April response letter, it said that “[m]aking the Twitter platform available for use ... as a tool of communication[] is broadly exempted from OFAC prohibitions.” Nor has it responded to Cruz’s most recent efforts.

Though Twitter may be right to ignore Cruz in this instance as a legal matter, the relevant law is not exactly clear-cut. When it comes to resolving these ambiguities, the relevant actor is Congress. Just as Congress clarified the scope of the Berman Amendment in 1994 to broaden OFAC’s narrow reading with respect to intangible informational materials, Congress could amend the law again to specify whether the incidental services involved in hosting a Twitter or Facebook account are necessarily protected.