On January 30,
2020, the U.S. House of Representatives passed H.R.5543, known as the “No War
Against Iran Act.” The measure was introduced by Representative Ro Khanna of
California’s 17th congressional district, which covers the San Francisco Bay
area, and passed by a vote of 228-175. The legislation blocks funding for
military force in or against Iran without congressional approval, except in self-defense,
and as such, is designed to curtail President Trump’s ability to take military
action unilaterally. Congressional observers view the legislation as a rebuke
of Trump’s recent military actions in Iraq against Iran and Iran-linked
targets, which were carried out without congressional authorization.
However, the No
War Against Iran Act is largely symbolic. The Republican-led Senate is unlikely
to take up the legislation, and even if it did pass the Senate with a majority,
the White House has signaled that President Trump would veto the bill. Nevertheless,
the House measure is a welcome symbol for most Iranian-Americans, the vast
majority of whom have relatives in Iran.
In July 2017, the U.S. Department of Treasury Office
of Foreign Assets Control (OFAC), which oversees U.S. sanctions programs, imposed
a $2 million penalty on the oil giant Exxon Mobil Corporation (Exxon). The fine
was levied for violations of Ukraine-related sanctions on Russia, which were
imposed after Russia’s effective annexation of Ukraine’s Crimea region. The
imposition of the penalty related to contracts between Exxon and the Russian
oil company Rosneft. Rosneft was not on OFAC’s list of Specially Designated
Nationals and Blocked Persons (SDN List) at the time the contracts were signed.
However, Rosneft’s President was on the List, and it was he, Igor Sechin, who
had signed the contracts on behalf of Rosneft.
In a rare decision, Exxon challenged OFAC’s decision
in federal court in Texas. Even rarer was the court’s December 31, 2019
decision ruling in favor of Exxon’s motion for summary judgment and vacating
OFAC’s $2 million penalty. The U.S. District Court for the Northern District of
Texas found that the OFAC penalty violated the Due Process Clause of the Fifth
Amendment, because OFAC had not given Exxon fair notice that its conduct with
Rosneft would violate Ukraine-related sanctions. While OFAC had given informal guidance in the past
that dealing with SDN-listed persons acting in a representative capacity like
Sechin could run afoul of sanctions, this informal guidance related to a different sanctions program.
Legal observers speculate that this decision may encourage
OFAC to issue informal guidance more consistently across its various sanctions
programs in the future to avoid similar litigation outcomes.
is a joyous evening honoring and celebrating the winter solstice, the longest
night of the year. This special night was celebrated at the University of
Maryland College Park by the Iranian Students Foundation, known as ISF, to
bring the region’s Iranian-American community together for a night of
festivity. Organized completely by Iranian-American students at the University
of Maryland, the event hosts performances, dinner, and a night of dancing for
hundreds of guests coming from around the D.C., Maryland, and Virginia area.
Performances range from traditional Persian dances to renditions of classic
Googoosh songs to poetry about Yalda; a favorite of the night is a Game Show
where participants are chosen from the crowd to answer trivia questions on
topics such as Persian history and Iranian pop culture to win the prize of a
in 1984, was created to bring together the university’s Iranian-American
community as well as serve as a unifying Persian presence for the region.
Additionally, the organization prides itself on educating the university’s
community on Iranian-American affairs. Holding annual events for Yalda and
Nooruz, as well as celebrating holidays such as Chahar Shanbeh Soori and having
events such as Hokm tournaments, the organization helps bring all members of
the university and region together. Much of ISF’s continued presence is a
result of the university’s large focus on Persian language, culture, and
history. The University of Maryland not only has a prominent Persian Studies
department through the Roshan Institute for Persian Studies, but has the
nation’s only Persian language Flagship program. This program prides itself on
offering an extensive Persian curriculum with classes for all language levels.
Yalda’s guests come from all around Maryland and the DMV area, representing the region’s large Iranian-American community and presence. ISF’s blossoming relationship with the DMV is seen through their connections with other university groups, such as working with the Johns Hopkins University’s Iranian Cultural Society and holding an annual soccer tournament called the Iran Cup with the Iranian student groups of the Virginia Commonwealth University, George Washington University, American University, and George Mason University. Not only is ISF indicative of the prospering and prominent Iranian-American community in the DMV, but they show the growing Iranian-American college community that represents a new generation of ecstatic and proud Iranians.
contributions to art, film and architecture are world renowned and stem from an
ancient history. In the midst of severe economic sanctions, Iran’s domestic art
market continues to survive. However, broad economic sanctions have various impacts
on all industries and sectors, and Iran’s domestic art market is no exception.
The recent devaluation of the rial has contributed to a
spike in art sales. According to Hormoz Hematian, the founder of one of
Tehran’s leading contemporary art galleries, the equivalent of $10,000 can buy
“almost quadruple what it would have been able to 15 months ago.” As a result, Iran’s elites have flocked to
auction houses in Tehran, largely because they view purchasing such art as an
investment. According to art specialist Bibi Naz Zavieh, the economic pressures
in Iran have triggered and reaffirmed the age-old belief that art is “still one
of the safest places to invest and keep money value.”
some Iranians, economic difficulties and the looming threat of bankruptcy has
forced them to sell their art collections. While some look to sell, others look
to capitalize on such opportunities. Moreover, under Iran’s current tax code, art
is a tax-free commodity, and those investing in expensive works can claim
their purchases as business expenses in order to pay less taxes. The use
of art as a store of value provides the wealthy with a safety net during times
of economic duress. It also demonstrates one of the many ways that the ultimate
burden of broad economic sanctions is borne by the most socioeconomically
mechanisms provide little to no monetary gain for the producing artists in the
Iranian art industry, who often find that sanctions prevent them from
participating in global art events. Sanctions also have helped create monopolies in
Iran’s domestic art market. As the value of the rial has decreased and
international business has become next to impossible, some galleries no longer
do business outside of Iran and instead trade amongst themselves and domestic
art collectors exclusively. Auction houses
have also become exclusive, and many experts at the Tehran Auction are also the
sellers. These conflicts of interest can compromise the transparency and
credibility of the experts, and affect the selection of works and artists involved
in the auctions. As an indirect result of sanctions, emerging Iranian artists
have even less access to international opportunities, and auction houses have
even more power over artists’ visibility.
Broad economic sanctions have contributed to a redirection of resources throughout Iran’s economy, which has increased domestic investment in Iran’s art market. The recent upsurge in domestic art sales involves complex developments and changes in the buying and selling of Iranian art – changes that may become systemic over time, and which can distract the industry from foster long-term vision for the prosperity of Iran’s artists.
Messaging applications like Telegram and WhatsApp emerged as alternatives to SMS-based messaging, and significantly enhanced our ability to communicate with friends and family in other countries, irregardless of telecom networks and carriers. There are a range of concerns that may go into a user’s decision as to which messaging application to use to connect to their coworkers, friends and family. Privacy is often one of the main concerns. Privacy issues in this area are twofold: privacy related to the service provider and platform themselves, and privacy relating to outside third-party infiltration of the service.
With respect to the first privacy concern, some users may have legitimate concerns about the access granted to the very company that provides the service in the first place. It is understandably essential for users to have some level of confidence in the provider of the service that connects them to their loved ones and colleagues. This is why the sizable acquisition of WhatsApp by Facebook in 2014, after its earlier acquisition of Instagram in 2012, raised privacy concerns alongside competition issues in different jurisdictions around the world. These concerns centered around the newfound ability of the parent company to share users’ data across its three platforms.
To clear the deal, Facebook had to give assurances to U.S. Federal Trade Commission (“FTC”), among other authorities, that its use of WhatsApp data after the acquisition would not undermine the users’ privacy choices. Nevertheless, Facebook allegedly violated these promises. In July of this year, Facebook agreed to pay a $5 billion penalty to settle FTC charges, the largest fine ever imposed on any company for violating consumer privacy. The company also agreed to submit to new restrictions and a modified corporate structure that, according to the FTC, will hold the company accountable for the decisions it makes about its users’ privacy.
The company has faced similar issues in Europe, where privacy protections arguably are even stronger under EU’s General Data Protection Regulation (“GDPR”). These concerns came into the forefront again after reports earlier this year that Facebook planned to merge data from its three messaging services into a single platform in 2020. The UK Information Commissioner Office had ruled in March 2018 that an earlier plan to share user information between Facebook and WhatsApp would be illegal under GDPR.
The second privacy concern, noted above, concerns the ability of third-parties to infiltrate the otherwise secure systems and platforms provided by companies such as WhatsApp. A novel lawsuit filed this October by WhatsApp in federal court in the Northern District of California may become a precedent-setting case on this aspect of privacy (WhatsApp Inc. v. NSO Group Technologies Limited).
Starting in April 2019, a cybersurveillance firm named NSO allegedly used WhatsApp servers to send malware to approximately 1,400 mobile phones and devices. Their malware was designed to infect these “target devices” for the purpose of conducting surveillance of specific WhatsApp users. According to WhatsApp, NSO was unable to break WhatsApp’s end-to-end encryption. Instead, NSO developed its malware to access messages after they were decrypted on an infected target device, abusing in-app vulnerabilities and the operating systems that power our mobile phones. In May 2019, WhatsApp detected and stopped NSO’s unauthorized access and abuse of its service.
Cybersecurity attorney Scott Watnik of Wilk Auslander in New York has called WhatsApp’s lawsuit against NSO “entirely unprecedented,” explaining that service providers often avoid litigation for fear of compromising their digital security. WhatsApp says this is the first time that an encrypted messaging provider is taking legal action against a private entity that has carried out this type of attack against its users. But this might be because in other past similar incidents, the attacker was not a legally incorporated private entity that could be sued in court.
We have yet to see where these developments will lead. Important points to watch would be the result of the WhatsApp lawsuit, and also how Facebook will address the privacy concerns of its users and the relevant legal challenges it faces in different jurisdictions.
The Office of Foreign Assets Control (OFAC) is the financial intelligence and enforcement agency of the U.S. Treasury Department; more specifically, OFAC administers and enforces U.S. economic and trade sanctions. In the past, companies engaging in JCPOA-related, sanctions-exempt, or specifically licensed trade activities with Iran often sought, to little avail, detailed guidance from OFAC on what, in OFAC’s view, constituted sufficient due diligence and compliance programs. Until recently, interested parties relied on public releases of OFAC settlement agreements and financial penalty decisions for takeaways on best practices and mistakes to avoid, but this type of targeted analysis necessarily requires after-the-fact assessments and comparisons to complex, case-specific situations. OFAC’s May and October 2019 publications of additional guidance attempt to address these concerns in unprecedented detail.
OFAC’s May 2, 2019 General Guidance on Sanctions Compliance Programs
Earlier this year, OFAC took steps to clarify its expectations of compliance programs, by issuing its most comprehensive guidance to date. On May 2, 2019, OFAC issued, “A Framework for OFAC Compliance Commitments,” to encourage companies to “develop, implement, and routinely update” a risk-based sanctions compliance program (“SCP”). The guidance was intended for U.S. companies as well as non-U.S. companies, and laid out five “essential components” of an effective SCP: (i) management commitment; (ii) risk assessment; (iii) internal controls; (iv) testing and audit; and (v) training.
OFAC’s October 25, 2019 Iran-Specific Guidance on Humanitarian Trade, Due Diligence & Reporting Expectations
Most recently, on October 25, 2019, OFAC published a four-page document called “Financial Channels to Facilitate Humanitarian Trade with Iran and Related Due Diligence and Reporting Expectations” (the “Mechanism”), which purports to provide further guidance and set forth OFAC’s expectations concerning humanitarian trade with Iran. OFAC clarifies that the Mechanism is “designed solely for the purpose of commercial exports of agricultural commodities, food, medicine, and medical devices to Iran” (i.e., humanitarian, sanctions-exempt trade). According to OFAC, the Mechanism “will provide unprecedented transparency into humanitarian trade to Iran.” The Mechanism specifically applies to foreign governments and foreign financial institutions, the near-totality of which have withdrawn or abstained from humanitarian trade with Iran out of fear of reprisal from U.S. secondary sanctions.
The Mechanism was issued as part of the concurrent designation of Iran as a “jurisdiction of primary money laundering concern” under Section 311 of the USA PATRIOT ACT. This designation was not made by OFAC, but by a separate bureau of the U.S. Treasury Department, the Financial Crimes Enforcement Network (“FinCEN”), which collects and analyzes information about financial transactions in order to combat domestic and international money laundering, terrorist financing, and other financial crimes. The designation prohibits correspondent accounts in the U.S. on behalf of Iranian financial institutions, and prohibits foreign financial institutions from processing transactions involving Iranian banks.
Under the terms of the Mechanism, “participating governments and financial institutions must commit to conducting enhanced due diligence to mitigate the higher risks associated with transactions involving Iran.” It contains an “illustrative list” of comprehensive enhanced due diligence protocols that OFAC says it “may require” depending on the nature of the transaction. As OFAC explains: “this framework will enable foreign governments and foreign financial institutions to seek written confirmation from Treasury that the proposed financial channel will not be exposed to U.S. sanctions in exchange for foreign governments and financial institutions committing to provide to Treasury robust information on the use of this mechanism on a monthly basis.”
In short, by committing to develop and implement enhanced due diligence procedures, and provide to OFAC a copious volume of information on a monthly basis, foreign governments and foreign financial institutions may be able to obtain written confirmation from OFAC that their intended humanitarian trade activities will not be exposed to U.S. secondary sanctions.
Practical Considerations of OFAC’s “Enhanced Due Diligence and Reporting Expectations”
OFAC indicates that it has issued the Mechanism to bar against illegitimate trade under the guise of humanitarian trade, to ensure transparency, and to promote greater understanding of U.S. sanctions laws and regulations. The “illustrative list” contained at pages three and four of the Mechanism provides much greater clarity as to the depth of OFAC’s due diligence expectations. The list is profoundly comprehensive, and observes a wide range of due diligence and Know Your Customer principles. Sanctions compliance experts will recognize many familiar themes in the Mechanism, from identity verification to designated persons to transactional logistics.
For the most part, none of this material should be surprising, particularly for large, sophisticated entities that have due diligence experience, sanctions-specific software methodologies, strong compliance programs, and budgetary resources to expend on due diligence of this nature. This being said, one of the counterintuitive and unintended consequences of long-term, broad economic sanctions is the erosion of a legitimate economic engine; this is because over time, sanctions push market forces into the willing arms of the black market, which in turn, stifles the development of transparent, sound business record-keeping practices. Thus, participants in heavily sanctioned economies such as Iran may struggle to meet the level of detail outlined in the Mechanism’s “illustrative list.”
OFAC acknowledges that the Mechanism includes a “great deal of information” to convey on a monthly basis. As noted above, much of it is information that generally would – and should – result from comprehensive, well-effectuated due diligence. But updating this amount of information and certifying its continued appropriateness and accuracy on a monthly basis is extremely costly and time-consuming. Thus far, OFAC’s monthly reporting requirements are proving to be the greatest source of concern for foreign governments and foreign financial institutions. Additionally, the proximity between OFAC’s October release of the Mechanism and Europe’s official launch of INSTEX in June 2019 has led some observers to opine that the Mechanism may be more of a deterrent to INSTEX and humanitarian trade, rather than – as suggested in the document’s title – to “facilitate” humanitarian trade with Iran.
The Mechanism provides some much needed clarity as to OFAC’s due diligence expectations and reporting requirements for foreign governments and foreign financial institutions engaging in humanitarian trade with Iran. However, the Mechanism may be prohibitive in terms of its monthly reporting requirements. As foreign governments and foreign financial institutions consider and perhaps attempt to implement the Mechanism’s criteria, they should remain alert for additional guidance and clarifications from OFAC, or seek interpretive guidance from the agency. In the midst of procedures being developed in the wake of the U.S. withdrawal from the JCPOA, whether it be INSTEX or OFAC’s recent publications, one thing appears certain: the humanitarian crisis in Iran has no meaningful end in sight for ordinary Iranians.
The National Museum of
Iran received – and now displays – ancient clay tablets, which recently arrived
from the United States. The ancient Persian artifacts are part of the
“Persepolis Collection,” previously borrowed by the United States. Iran’s
Minister of Cultural Heritage, Handicrafts and Tourism Ali Asghar Mounesan
reported that hundreds of ancient tablets, dating back to the Achaemenid Empire
were returned on September 30, 2019. The Oriental Institute at the University
of Chicago last held the artifacts, where extensive research was conducted on
their origins and historical significance.
Mr. Christopher Woods, the head of the Oriental Institute,
stated that as a result of their historical research on the artifacts, the
world knows more about the organization and institutions in Achaemenid
societies of ancient Persia. These tablets were excavated from the site of
Persepolis, the capital of what was once a politically and culturally advanced
Achaemenid Empire approximately 2500 years ago. Iran loaned artifacts to the
University of Chicago’s Oriental Institute more than 80 years ago for research,
translation and cataloging, after university archaeologists uncovered them in
the 1930s at the site of the ancient city of Persepolis.
This collection was caught in the crossfires of a lengthy legal
dispute that lasted over 14 years, and went all the way to the U.S. Supreme
Court. A February 2018 decision came down in favor of a return of the
collection to Iran. Rubin v. Islamic Republic of Iran showcased
a stunning instance of legal consensus between the governments of the United
States and Iran. The unanimous decision by the U.S. Supreme Court ruled that
clay tablets are exempt from seizure under the Foreign Sovereign Immunities
Act. The U.S. administration at the time expressed that a ruling to seize the
artifacts could significantly disturb the observance of international
reciprocity for the exchange of historical antiques.
Mr. Woods and Mr. Mohammad Reza Kargar, a director of museums in Iran, both hope that the remainder of the collection still in the United States, which has been held up by bureaucratic delays due in part to the reimposition of U.S. sanctions, shall be returned to Iran in the near future. Another 17,000 artifacts from the initial loan remain in the United States. Tourists flock to Iran every year to visit both historical sites and museums to study and witness the stunning remnants of a once expansive and sophisticated Persian empire.
A central tenet of the Iranian-American Chamber of Commerce
is to engage with and recognize other Iranian-American organizations that serve
and support the Iranian-American community. To that end, this month the Chamber
is pleased to recognize this year’s recipients of the Iranian American Bar
Association Foundation Scholarship.
By way of background, the Iranian American Bar Association (IABA)
is a nationwide organization for Iranian Americans in the legal profession. The
IABA Foundation is an affiliated, but separate, non-profit organization that
oversees the scholarship process. The Chamber is pleased to recognize the 2019 Scholarship
recipients, Daniel Barlava and Fatemah Shahkolahi, and took a moment to chat
with both of them about their scholarship awards:
Daniel Barlava (pictured at left) is a third-year law
student at Columbia University Law School. He received a B.A. in History and
Economics from Northwestern University, and followed his graduation by working
for the U.S. Treasury Department. There, he supported law enforcement agencies’
efforts to conduct complex financial investigations. During his time at
Columbia University, Daniel has focused on immigration defense, criminal
convictions, and environmental litigation. Following law school, he will be
working as an associate at the Irell & Maniella law firm in Los Angeles,
focusing on public services. Daniel is excited about his involvement with the
IABA because he wants to become more involved with Iranian-American lawyers in
the community. He is interested in continuing his career by working with the
government. He said that this would give him “the opportunity in the role of
building bridges and taking down the barriers between Iranians in the U.S. and
Iranians in Iran.” Daniel is honored and very proud to accept the IABA
Fatemah Shahkolahi (picture on right) is a third-year law student at the George Washington University Law School. She earned a B.A. with honors in English from Notre Dame of Maryland University and an M.A. in International Communication from American University. After receiving her M.A., Fatemah worked at an international NGO on addressing the refugee crisis in Lebanon. Throughout her time at law school, she has worked as a judicial intern to Judge Robert McDonald in the Maryland Court of Appeals, the state’s highest court. On receiving the scholarship, Fatemah noted that she “felt very happy and very fortunate,” saying, “it’s definitely a privilege to be provided with resources to fund my legal education and so I feel very honored that I was provided this opportunity.” Overall, she is excited about her future in the legal profession, and plans to focus on helping underserved populations. She explained, “it is an honor to use my legal education and law degree to help serve Iranian-Americans…I want to use my legal skills to help serve Iranian-Americans and any other underserved communities in the U.S.”
On October 29, Human Rights Watch (HRW)
issued a new, 47-page report titled “‘Maximum Pressure’: US Economic Sanctions
Harm Iranians’ Right to Health.”
finds that the Trump Administration’s exceedingly broad sanctions on Iran have dramatically
impaired the country’s ability to finance humanitarian imports, such as medicines.
The report explains that this impediment is causing serious hardships for
ordinary Iranians and threatening their right to health. HRW encourages the
Trump Administration to take immediate steps to ensure that a viable channel
exists for trade in humanitarian goods with Iran.
the report outlines how the broad financial restrictions on Iran, coupled with increasingly
aggressive rhetoric from United States officials, have radically slashed the
ability of Iranian entities to finance humanitarian imports, including vital
medicines and medical equipment. Although there are exemptions for humanitarian
imports in the U.S. sanctions regime on Iran, HRW concluded that in reality, these
exemptions have failed to offset the strong reluctance of US and European
companies and banks to risk incurring sanctions and legal action. The result
has been to deny Iranians access to essential medicines and to impair their
right to health. HRW urges that under international law, the U.S. should
monitor the impact of its sanctions on Iranians’ rights and address any
violations sanctions cause.
Read HRW’s full article discussing the report. The report is available here.
This article examines one of the most
bold, controversial, and progressive policy proposals currently cycling through
the political corridors of Washington: the proposal to “break up” big technology
companies, chief among them Facebook, Google, and Amazon. This proposal has
stoked controversy in legal and economic policy circles since its introduction
in March. In leaked audio from an employee meeting, Mark Zuckerberg, CEO of
Facebook, said the company will fight any such measure.
One of the current
proposals is twofold. The first pillar of the proposal is to pass new
legislation requiring large tech platforms to be designated as “Platform
Utilities” and broken apart from participants on that platform. “Platform
Utilities” are defined as companies with annual global revenue of $25 billion
or more, and which offer to the public an online marketplace, an exchange, or a
platform for connecting third parties. Specifically, Amazon Marketplace,
Google’s ad exchange, and Google Search are mentioned as platforms that would fall
under its scope. In other words, Amazon Marketplace would be split apart from
Amazon Basics, which offers products for sale on the marketplace. Similarly,
Google’s ad exchange and businesses on the exchange would be split apart. The
idea behind this proposal is that it is fundamentally unfair for a company that
operates such a platform to also compete on its own platform with other
second pillar of this policy proposal involves blocking mergers, which would
lead to more consolidation of an already concentrated tech sector. Some
variations of this policy even call for unwinding previously consummated
transactions, which has the potential to impact the acquisitions of Whole Foods
and Zappos by Amazon, WhatsApp and Instagram by Facebook, and Waze, Nest and
DoubleClick by Google. Rather than legislation, effectuating this prong of the
proposal centers on the appointment of government officials in the relevant
agencies who are committed to this agenda.
Along the same vein, the Antitrust Division of the
Department of Justice in the Trump Administration, under the leadership of
Assistant Attorney General Makan Delrahim, an Iranian-American lawyer,
announced in July that it will launch a wide-ranging antitrust review of “Market-Leading
Online Platforms.” The announcement refers to “search, social media, and some
retail services online.” This is generally understood to apply to the same big
tech companies and also Apple, even though the Department’s announcement does
not call out any particular company by name. “Without the discipline of
meaningful market-based competition, digital platforms may act in ways that are
not responsive to consumer demands,” said Mr. Delrahim. Thus, the Division is
reviewing “whether and how market-leading online platforms have achieved market
power and are engaging in practices that have reduced competition, stifled
innovation, or otherwise harmed consumers.”
In sum, there seems to be a growing consensus that
there is a need for scrutiny into the competitive conditions of the online and
technology marketplace. The main concern among many policy experts is that
traditional antitrust frameworks and practices may not be adequate to address
the new issues arising in this area, especially since many of these services
are offered to customers free of charge. But this lack of price-competition
does not exclude the possibility that more competition would lead to better
outcomes for consumers on other fronts such as privacy, and also further
stimulate innovation. We will know soon what, if any, impact this debate will have
on major technology companies and their billions of customers.