I read and commented on an interesting Op-Ed by Richard Cohen of the New York Times today. The Op-Ed discussed how the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”), has still not released any guidance on whether or not they will allow for a computer software program known as Haystack to be exported to Iran. This software was developed to allow Iranian dissidents to circumvent the Iranian government’s cenorship measures. This software has found its way into Iran by being smuggled into the country despite the prohibitions on U.S. persons involved in the exportation of technology to Iran. I had previously written on this issue before here.

Apparently, the attorneys working on behalf of the developer of Haystack are trying to apply for specific licenses so that the exportation of this software can be done in compliance with the Iranian Transactions Regulations. While it’s great that they are trying to comply, I’m not sure how they will address the end user question. Generally in a license application for the exportation of a good or service, the applicant for the specific license will need to identify the end user(s), or who will ultimately be using or recieving the good or service. However, in regards to Haystack, it is unclear to me: 1) how these applications can clearly set out who the end users are; and 2) if the political dissidents who are receiving this software are really willing to share their identities and locations (i.e., addresses) with a U.S. government agency. If the end user information can not be provided I’m uncertain as to whether not OFAC will be willing to issues the specific licenses needed for the lawful exportation of this technology.

What would be beneficial to Haystack’s cause is if OFAC were to issue a general license for a specified purpose and period of time. In this case the purpose would be for the exportation of technologies to Iran which would facilitate the circumvention of internet based Iranian censorship measures. This would be akin to what OFAC has done previously in regards to some transactions that would otherwise be prohibited under the Belarus Sanctions Regulations.

With the Department of State recently recommending that the U.S. allow for the export of certain technology to to circumvent the the Iranian government’s internet censorship measures, it will be interesting to see how OFAC reacts in the coming days.

Mr. Cohen’s entire Op-Ed can be read by clicking here.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC litigation. If you have any questions please contact him at 202-280-6370 at 202-351-6161 or ferrari@ferrari-legal.com.