OFAC Expands and Clarifies License for Exports of Personal Communications Items and Services to Iran

by Davis Wright Tremaine LLP

The Department of the Treasury, Office of Foreign Assets Control (OFAC), amended the Iran personal communications General License D-1 (GL D-1) on Feb. 7, 2014, expanding, clarifying and superseding the May 2013 General License D, and issued Frequently Asked Questions (FAQs) relating to the provisions of GL D-1. Personal communications General License D was issued to promote the availability of personal communications over the Internet to Iranian citizens, including instant messaging, chat and email, social networking, sharing of photos and movies, web browsing and blogging. However, U.S. trade sanctions against Iran have been so comprehensive and long-standing that, despite General License D, many U.S. businesses found it safer and easier to continue to avoid exports to Iran. The new GL D-1 attempts to overcome that reluctance by expanding and defining the services, software and hardware which may be exported to Iran, and by expanding the range of individuals and entities that may export, re-export, provision and receive those export items.

The OFAC economic and trade sanctions are enforced based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. The sanctions prohibit most forms of trade, including the direct or indirect import and export of virtually all goods and services, with Cuba, Iran, North Korea, Syria and Sudan. OFAC also maintains the Specially Designated Nationals (SDN) list - a list of individuals, companies, groups and entities with whom U.S. persons are generally prohibited from dealing.

Despite virtually total blanket sanctions against Iran dating back to 1995, one exception beginning in 2010 has been for personal communications over the Internet, in response to the Iranian government’s repression of dissidents. See 31 C.F.R. § 560.540. The intent of the rule was to foster the free flow of information to Iranian citizens. OFAC expanded and clarified the rule by issuing General License D in May 2013. GL D-1 now amends, clarifies and expands the license for personal communications over the Internet with persons in Iran.

What items may be exported to Iran?

  • Fee-based services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging (collectively “personal communications”). This includes Skype Credit. Also included are fee-based cloud computing services incident to the exchange of personal communications over the Internet, and software necessary for such services, as limited in the following paragraph.
  • Fee-based software necessary to enable services incident to the exchange of personal communications, provided the software is designated EAR99 or classified as Export Classification Control Number (ECCN) 5D992.c (mass market encryption software). This includes fee-based personal communications software not subject to the EAR because it is of foreign origin and is located outside the U.S., provided the software would be designated EAR99 in the U.S. or classified under ECCN 5D992.c if it were subject to the EAR.
  • No-cost, publicly available personal communications Internet services and software necessary to enable such services, including Skype, Yahoo Messenger and Google Hangouts. Note that these items may be exported to the Government of Iran, and for that purpose “publicly available” refers generally to software that is widely available to the public, and not to the definition of “publicly available” in the Department of Commerce Export Administration Regulations (15 C.F.R. § 734.3(b)(3)). This provision addresses concerns that U.S. persons could not provide such free services to Iran without inadvertently providing them to the Iranian Government because they may not know the end user.
  • Consumer-grade Internet connectivity services and the provision, sale or leasing of capacity on telecommunications transmission facilities (such as satellite or terrestrial network connectivity) incident to personal communications. This does not include commercial-grade Internet connectivity services or telecommunications transmission facilities (such as dedicated satellite links; dedicated lines that include quality of service guarantees; sale of capacity or services to Iranian telecommunications providers; or telecommunications infrastructure), or web-hosting services that are for commercial endeavors or of domain name registration services.

The OFAC General License Annex lists additional specific hardware, software and services authorized for export to Iran, including the authorized ECCNs for those items. Those items are summarized below; the Annex is reproduced at the end of this Advisory. Please consult the Annex to ensure that your item's ECCN is permitted for export. In general, each item includes related drivers, communication and connectivity software, and services necessary for the operation of such hardware and software. In addition, items listed in the Annex but not subject to the EAR because they are of foreign origin and are located outside the U.S. may be exported, reexported or provided, directly or indirectly, by a U.S. person, wherever located, provided that it would be designated EAR99 if it were located in the U.S. or would meet the criteria for classification under the relevant ECCN specified in the Annex if it were subject to the EAR.

  • Mobile phones (including smartphones), Personal Digital Assistants (PDAs), Subscriber Identity Module (SIM) cards, and related accessories (including but not limited to headsets, cases, holsters, mounts, chargers, docks, display protectors, cables, adapters and batteries).
  • Satellite phones and Broadband Global Area Network hardware.
  • Consumer modems, network interface cards, radio equipment (including antennae), routers, switches and WiFi access points, designed for 50 or fewer concurrent users.
  • Residential consumer satellite terminals and transceiver equipment (including but not limited to antennae, receivers, set-top boxes and video decoders).
  • Laptops, tablets and personal computing devices, and peripherals (including but not limited to consumer disk drives and other data storage devices) and accessories for such devices (including but not limited to keyboards and mice); and computer operating systems and software required for effective consumer use of such hardware, including software updates and patches. Note that components and replacement parts (for example, microprocessors) are not included in this authorization, and would require a license.
  • Anti-virus, anti-malware and anti-tracking software, and anti-censorship tools and related software.
  • Mobile operating systems, online application for mobile operating systems (app) stores, and related software, including apps designed to run on mobile operating systems. Note that this includes apps downloaded via online app stores (iTunes App Store, Google Play, etc.), provided they are designated as EAR99 or classified as ECCN 5D992.c . 
  • Virtual Private Network (VPN) client software, proxy tools and fee-based client personal communications tools including voice, text, video, voice-over-IP telephony, video chat and successor technologies; communications and connectivity software required for effective consumer use designated EAR99 or classified under ECCN 5D992.c; and services necessary for the operation of such software.
  • Provisioning and verification software for Secure Sockets Layers (SSL) certificates.

Note that none of the items authorized under GL-D1 may be exported with knowledge or reason to know that they are intended for the Government of Iran, except for the no-cost, publicly available personal communications describe above. In addition, the authorized items may not be exported to individuals and entities whose export privileges have been denied (i.e., persons and entities included in the SDN list and the various other U.S. prohibited lists).

Who may export to Iran?
GL-D1 authorizes the exportation, reexportation and provision, directly or indirectly, of covered goods and services to Iran from the U.S., by a U.S. person, wherever located, and by non-U.S. persons located outside the U.S. Non-U.S. persons were restricted under the prior GL-D license. “U.S. person” includes entities owned or controlled by a U.S. person and established or maintained outside the U.S. (U.S.-owned or -controlled foreign entities).

“Provision” may include an in-country transfer of covered software or hardware.

Hardware and software authorized under the General License may be exported, reexported or provisioned, directly or indirectly, to Iran by an individual leaving the U.S. for Iran, and may also be imported by an individual entering the U.S., directly or indirectly, from Iran. This allows, for example, an individual to carry an authorized mobile phone or laptop when traveling between the U.S. and Iran.

Who can process payments?
U.S. depository institutions, and U.S. registered brokers or dealers in securities, may process transfers of funds to or from Iran, or for the direct or indirect benefit of persons in Iran or the Government of Iran, if the transfer arises from, and is ordinarily incident and necessary to give effect to, an underlying transaction that has been authorized by GL-D1 and does not involve debiting or crediting an Iranian account.

The new personal communications license clarifies what personal communications items and services may be exported to Iran and reduces the risk of an inadvertent export violation. Exporters must still classify their items, or determine the classification of foreign origin items. Please contact us if you need assistance regarding classification of goods or services intended for export to persons in Iran, or have other questions concerning the new GL-D1 license.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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