Last month, the White House announced a change in its policy toward overseas hostage-takings of U.S. citizens. The new policy, accompanied by an Executive Order, aims to effect policy changes at home and overseas, including a focus on increased and continuous collaboration with a hostage victim’s family. The new policy also reaffirms the government’s longstanding policy of making no concession to hostage-takers, and “will focus on exploring all appropriate options to ensure the safe recovery of [the families’] loved ones.” The policy report also references a statement issued by the Department of Justice, noting that the DOJ “does not intend to add to families’ pain in such cases by suggesting that they could face criminal prosecution.” The DOJ statement acknowledges that some families have expressed concerns that their efforts to retrieve their loved ones from terrorist hostage-takers could lead to prosecution for providing material support to designated foreign terrorist groups. The DOJ points to the fact that it has never used the material support statute to prosecute a hostage’s family or friends for paying a ransom. This pronouncement appears to have been intended to ease concerns that a victim’s family members could be prosecuted for providing material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B.

While the new policy may reduce a victim’s family’s anxiety over paying ransom to a terrorist hostage-taker, when all factors are taken into consideration, there are still substantial legal questions that will be confronted in connection with payment of ransom. While the policy appears to protect a victim’s family and friends from prosecution by the DOJ, it does not mention abstaining from prosecuting any other individual or entity involved in the hostage recovery process. For example, the policy does not seem to protect unrelated donors. Most victims’ families would need to borrow or raise funds from third parties to meet a hostage-taker’s ransom demand, which can reach millions of dollars. Individuals and corporations with the means to donate money to secure the recovery of a hostage will certainly take note that the new policy appears limited to the family and friends of a hostage. The same concerns would hold true for any intermediary who would deliver the ransom payment to the hostage-taker, whether that intermediary was an individual who physically delivered the payment or a bank or other financial institution transferring the funds electronically.

In addition, while the White House’s new policy suggests that the Department of Justice will not prosecute a hostage victim’s family members or friends who make ransom payments, it says nothing about how the U.S. Treasury Department Office of Foreign Assets Control (OFAC) will react. OFAC has authority to enforce civil violations of its regulations barring transactions with specially designated nationals by way of substantial penalties. Donors, intermediaries, or even a victim’s family and friends will have to assess the risk that OFAC will pursue charges.

The new White House policy takes several positive steps toward creating a better working relationship among hostage victims, their families and the U.S. government. And, while the policy alleviates the threat of prosecution for families and friends attempting to pay a ransom to a hostage-taker, actually raising funds and delivering payment remains a risky proposition for individuals and entities subject to U.S. law.