On May 30, 2013, the US Treasury Department, Office of Foreign Assets Control (OFAC) issued General License D under the Iranian Transactions and Sanctions Regulations (ITSR), 31 C.F.R. Part 560.  The general license authorizes the export to Iran of certain services, software, and hardware incident to the exchange of personal communications.  It expands upon previous OFAC authorization by allowing the export of fee-based (as opposed to free) services and software, and further permits the export of personal communications-related hardware for the first time.

Background

The ITSR establish broad restrictions on trade with Iran.  This sanctions regime applies to “US persons,” defined to include US citizens, lawful permanent residents of the United States, entities organized under the laws of the United States and their foreign branches, and any person located in the United States.  The ITSR also apply to entities owned or controlled by US persons.  Under 31 C.F.R. 560.204, US persons are prohibited from exporting or reexporting goods, services, or technology to Iran.

As we have previously advised, in 2010 OFAC issued a rule authorizing the export to Iran of services incident to personal, internet-based communications, as well as free, publicly available software necessary to enable such services.  See 31 C.F.R. 560.540.  The rule (for which OFAC provided interpretative guidance in 2012) provided that covered communications included instant messaging, chat, email, social networking, sharing of photos and movies, web browsing, and blogging.  The rule did not authorize the export of fee-based services or software, goods subject to the US Export Administration Regulations (EAR) other than mass-market software controlled under ECCN 5D992, or internet connectivity services.  Furthermore, the rule did not authorize the provision of telecommunication transmission facilities, such as satellite links or dedicated lines.

New General License

General License D expands upon the authorization set forth in 31 C.F.R. 560.540 to authorize the export of:

  • fee-based services incident to personal, internet-based communications;
  • fee-based software subject to the EAR that is necessary to enable such services, provided such software has been designated as EAR99 or classified under ECCN 5D992.c;
  • certain other software and hardware specified in the Annex to the General License, including mobile phones and smartphones, SIM cards, modems, routers, satellite phones, laptops, tablets, and anti-virus software;[1] and
  • consumer-grade internet connectivity services.

General License D also authorizes the provision, sale, or leasing of capacity on telecommunications transmission facilities incident to personal communication.

The general license introduces several new authorizations.  First, it authorizes the export of fee-based services and software, which previously had only benefitted from a favorable licensing policy.  Second, the general license provides for the export of many common hardware and software items, such as mobile phones (including smartphones), SIM cards, satellite phones, modems, routers, personal computers, and tablets.  Third, the general license authorizes the export of consumer-grade internet connectivity services, which had been specifically excluded from the previous authorization.  Overall, General License D represents a significant expansion.

The general license makes clear that, to the extent that it authorizes US persons to export or reexport covered items, entities owned or controlled by US persons are authorized as well.  See 31 C.F.R. §560.556.  Furthermore, the general license authorizes US financial institutions to process transfers of funds from Iran in furtherance of authorized activities.

General License D does not authorize the export of:

  • services, software, or hardware to the Government of Iran or any person who has been designated as a Specially Designated National;
  • commercial-grade internet connectivity services or telecommunications transmission facilities;
  • web-hosting services that are for purposes other than personal communications, such as for commercial endeavors; or
  • domain name registration services.

Finally, General License D provides that OFAC may issue specific licenses on a case-by-case basis for the export and reexport of services, software, and hardware not authorized under the general license.

Conclusion

General License D represents a significant expansion of the previously existing authorization set forth in 31 C.F.R. 560.540.  The general license marks a continuing effort by the US Government to promote freedom of expression in Iran through export and sanctions policy.  This effort intensified in the wake of the 2009 Iranian presidential election and the subsequent repression of Iranian dissidents.  Since then, the US Government has authorized the export of personal communications-related services and software as described above, and further has imposed sanctions on persons that export to Iran technology used for internal repression.  The issuance of General License D coincides with the upcoming Iranian presidential election, which will be held on June 14, 2013.  Overall, it seems likely that the US Government will continue to be active in using export and sanctions policy to promote free expression in Iran.