There was an interesting article in The Daily Beast this week written by renown Georgetown Law Professor David Cole. Professor Cole, in addition to being one of the nation’s foremost constitutional law and national security experts, was also counsel for Humanitarian Law Project, whose case ended in the Supreme Court’s determination that coordinating advocacy with a group designated as a Foreign Terrorist Organization (FTO) was a criminal violation of 18 U.S.C 2339B, providing material support or resources to designated foreign terrorist organizations, and did not fall under the protections of the First Amendment. The Court’s interpretation of the material support statute was so broad that it seemingly criminalizes nearly every imaginable activity between U.S. persons and FTOs no matter how attenuated the circumstances.

Well apparently Christians United For Israel (CUFI) picked up on the Court’s ruling and has decided to call attention to what they believe to be a federal crime in Twitter’s provision of services to Hamas. The provision of services in this case is the maintenance of a Twitter account through which Hamas can tweet messages. CUFI is now calling for its members and supporters to email Twitter demanding it to ban Hamas from Twitter accounts, and to copy the U.S. Attorney’s office in San Francisco on the emails as well, suggesting that they believe a criminal investigation should be initiated.

So does CUFI have a valid point? Well let’s consider the following. Hamas is designated as a Specially Designated Terrorist (SDT) under Executive Order 12957, Specially Designated Global Terrorist (SDGT) under Executive Order 13224, and as an FTO. The SDT Designation is regulated by 31 C.F.R. Part 595, the SDGT regulated is government by 31 C.F.R. Part 594, and the FTO designation is regulated by 31 C.F.R. Part 597. The first two designations, those governed by Parts 594 and 595, were imposed pursuant to the International Emergency Economic Powers Act (IEEPA). The FTO designation and its corresponding regulations are imposed pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).

For the IEEPA designations there is an exemption contained in the underlying statute which exempts from the President’s authority to sanction the ability to prohibit personal communications transactions as long as the transaction doesn’t involve a transfer of anything of value. This is also codified in 31 C.F.R. 594.508 which authorizes transactions ordinary and incidental to the receipt and transmission of telecommunications with parties blocked pursuant to Part 594. There is no similar regulation in Part 595, however, there is a regulation addressing a personal communications exemption at 31 C.F.R. 595.206. Therefore, it seems that Twitter is in the clear as far as any potential IEEPA based sanctions violations are concerned.

However, neither AEDPA nor Part 597 contain any exemptions or license authorizations concerning the provision of telecommunications or personal communications to parties designated pursuant to those authorities. But then again, the exportation of services by U.S. persons to FTOs is not per se prohibited. What is prohibited is the provision of material support by U.S. persons to FTOs. Material support is defined as currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. As noted above, the Supreme Court has included coordinated advocacy within this definition.

The question here is whether or not Twitter’s service can be deemed as the provision of “communication equipment”, as it seems Twitter’s services wouldn’t fall into any of the other categories of material support. That of course would have go be determined by a court. However, I think that the larger point Professor Cole is making in his article is that the broad interpretation of material support is neither practical nor just. On the flip side, CUFI may have a point that Twitter is in violation of providing material support under AEDPA if it can be successfully argued that Twitter’s communications platform constitutes communication equipment.

It will be interesting to see whether or not anything comes out of CUFI’s efforts. At the least it should call more attention to the dangers of providing any services whatsoever to sanctioned parties, the broad interpretation of material support, and the Court’s decision in Humanitarian Law Project.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrariassociatespc.com.