THE MAGAZINE

Sic Semper Technology

By David Hardin

Companies providing telecommunications services to these countries would have to complete an annual report disclosing their due diligence investigations. Such reports must make it clear that the countries receiving the technology have a demonstrated respect for human rights. The bill would also require that the U.S. government maintain a list of technologies that could be used for censorship or monitoring, and companies would be prohibited from exporting those technologies to any government on the “Internet-restricting countries” list.

In May 2012, the U.S. Senate passed an amended version of a House bill (H.R. 1905), which would require the U.S. government to impose sanctions on individuals and companies that transfer or facilitate the transfer of sensitive technologies to Iran or Syria, or provide services for such technologies. Potential penalties for these activities would include automatic denial of U.S. export licenses, ineligibility for U.S. government procurement contracts, and prohibitions on transfers of credit or payments through U.S. financial institutions. The House and Senate bills have differences that will have to be worked out in a conference committee. Once a single bill has been created, both houses will have a chance to vote the final bill up or down.

Meanwhile, an executive order signed by President Barack Obama in April 2012 achieves much of what the House and Senate bills aim to cover. The order, in part, blocks the U.S. property and interests in such property of any individual or group determined to have aided the Iranian or Syrian government in the acquisition or use of NSTs to commit human rights abuses. Although the order imposes a different type of sanction from those imposed by H.R.1905, the prohibitions are similar.

On the enforcement front, the U.S. government has been investigating and penalizing companies for unlawful exports of NSTs. For example, in December 2011, the Commerce Department’s Bureau of Industry and Security (BIS) took action against two parties, Waseem Jawad and Infotec, for allegedly selling NSTs to Syria in violation of U.S. sanction laws against that country. Relying on the NSTs’ serial numbers, the U.S. manufacturer, Blue Coat Systems, Inc., was able to confirm that its devices, allegedly exported by Jawad and Infotec, were being used by a telecommunications company located in Damascus, Syria. The parties are now subject to a license requirement—and thus rigorous U.S. government scrutiny—for the receipt of any export subject to U.S. jurisdiction.

The government is also conducting numerous probes into the sale of NSTs to repressive regimes by U.S. companies. For instance, BIS is investigating NetApp Inc.’s alleged sale of a multi-million dollar NST system to the Syrian government. According to reports, the government investigation was prompted by the company’s own discovery and internal investigation of the sale. The system, which was allegedly designed to intercept and catalog e-mails circulated through Syria, was purchased by Italian company Area SpA and, in turn, sold to the Syrian government. In addition, both BIS and the FBI are probing a major Chinese telecommunications firm, ZTE, and its U.S. subsidiary for selling $130.6 million worth of NST technology to Iran.

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