Fixing the Coursera Problem

Nima Shirazi has an excellent piece on the Coursera debacle. For those who might have missed this story, MOOCs (massive open online courses) – including Coursera – have been prevented from offering their educational services to students in Iran, Cuba, and Sudan, thanks to U.S. sanctions. Students in Iran, for example, were greeted with a page that looked like this when they tried to access Coursera a couple of weeks ago.

News of this has been greeted with dismay from many corners. Denying Iranian students access to online education tools, like Coursera, evidences little but the sledge-hammer approach of U.S. sanctions. Nima does an excellent job of highlighting the most disturbing aspects of this.

But I wanted to add just a couple of things, primarily how easy it would be for the White House and the Treasury Department to fix this provided the will was there. Two options immediately come to mind – both of which are eminently doable and would help alleviate the problems that the U.S. sanctions are causing for Iranians.

What’s the Law?

In regards to Iran, the relevant law is located in CISADA (the Comprehensive Iran Sanctions and Divestment Act). Passed by Congress in 2010, CISADA enacted a de facto trade ban on Iran, barring the export to Iran of U.S.-origin goods, services, and technologies, and the import to the U.S. of Iranian-origin goods and services. (The former, of course, was applicable to Coursera.) Nonetheless, CISADA allowed for limited exceptions to the U.S. export ban, as well as provided to the President the authority to create regulatory exceptions to the wider trade ban.

Sec. 103(b)(2) of CISADA reads as such:

(A) IN GENERAL – Except as provided in subparagraph (B), no good, service, or technology of United States origin may be exported to Iran from the United States or by a United States person, wherever located.

Exceptions, however, include:

(B)(i) …The exceptions provided for in section 203(b) of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)), including the exception for information and informational materials, shall apply to the prohibition in subparagraph (A) of this paragraph to the same extent that such exceptions apply to the authority provided under section 203(a) of that Act.

If we turn to Section 203(b) of the IEEPA, we get a better idea of exactly what constitutes “information and informational materials” within the meaning of the exceptions to the U.S. export ban located at CISADA Sec. 103(b)(2):

50 U.S.C. §1702(b): Exceptions to grant of authority

The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly –

(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, or news wire feeds…

Obviously, thanks to the trouble Coursera and other MOOCs have run into, the Treasury Department has treated MOOCs as providing “services” not captured by the “information and information materials” exception. What is critical to remember is that this is a policy choice, not a legal mandate. The Treasury Department has a wide berth within which to interpret the relevant law in CISADA, and those who are familiar with U.S. administrative law will recall that U.S. courts generally defer to federal agencies when, in the absence of an “unambiguously expressed intent of Congress,” an agency’s reading of a particular statute is “based on a permissible construction of the statute.” Certainly, in this case, a “permissible construction” of CISADA would allow for the export to Iran of educational services not unlike that offered by Coursera. What would be needed is for the Treasury Department to interpret Coursera’s activities either as not “services” within the meaning of CISADA §103(b) or as “services” not captured by the export ban thanks to the “information and informational materials” exception.

In other words, nothing in the law would prevent the Treasury Department from permitting MOOCs to offer their services to students residing in Iran, so long as the Treasury read such educational services as fitting within the “information and informational materials” exception. Treasury is not obliged to make the “correct” reading of the statute, nor even adhere closely to what legislators intended when they drafted the law, but rather merely to render a “permissible construction of the statute” when implementing it. This is a very low bar that the Treasury Department would need to hurdle. This, however, it has chosen not to do.

But that is not the only way the Treasury Department could resolve this ongoing problem. It has, at least, one other option, and that is to create a regulatory exception to the export ban provided in CISADA Section 103(b). That means that even if the Treasury were to read Coursera’s activities as “services” not fitting within the “information and informational materials” exception, it still has the broad authority, by virtue of CISADA Section 103(d), to except certain activities that would otherwise be sanctioned.

(d) REGULATORY AUTHORITY. –

(1) IN GENERAL – The President shall prescribe regulations to carry out this section, which may include regulatory exceptions to the sanctions described in subsection (b).

It is this authority that allows OFAC to issue permissive licenses for what would otherwise be sanctioned activities. It is also this authority that would permit OFAC to issue a license for the kind of educational services that Coursera (and MOOCs more generally) provide to students residing in Iran. Thus far, however, the Treasury has made no moves to do such. This inactivity is, again, a matter of policy, not law. The White House can direct the Treasury Department to provide an exception to CISADA’s export ban on educational services, provided it has the will to do so.

I just wanted to clarify this, because pressure should be brought on the White House to ensure that students residing in Iran have access to Coursera’s materials. The United States has long tried to fit its policies towards Iran under the nomenclature of ‘targeted sanctions’, but it is totally unclear why Iranian students should be bearing the burden, as they are in this case. This disconnect between the U.S.’s actual policies and their rhetorical frame should be where activists jump in and exert significant pressure on the White House.

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