UPDATE 16- Nizar Zakka, Two Years Unlawfully Detained in Iran

Statement on the Continued Unlawful Detention of Internet Freedom Advocate & Hostage Nizar Zakka

On September 19, 2017, at the 72nd Session of the United Nations General Assembly, President Donald Trump said “[i]t is time for the [Iranian] regime to free all Americans and citizens of other nations that they have unjustly detained.”

Mr. Zakka’s U.S. Attorney Jason Poblete issued the following statement on behalf of his client:

“This week marks two years that Mr. Zakka was unlawfully detained in Iran. Unlike the Obama administration that hid the new Iran hostage crisis from the American people and other nations, unjustly detained persons such as Nizar Zakka finally have a strong voice for liberty in President Trump and his administration.”

Nizar was kidnapped by the Iranian regime on September 18, 2015. Nizar was in Iran because he was invited to speak by Shahindokht Molaverdi at a women’s Internet conference. Molaverdi is a member of Hassan Rouhani’s cabinet and serves as the vice president of Iran for Women and Family Affairs.

More information on Nizar Zakka’s case can be found below.

President Trump’s remarks can be found here.

Prior Statements and Releases

September 12, 2017September 12, 2017

Free Speech and The Knowledge Economy

Gab’s app is similar to Twitter. It has a policy that is committed to free speech. That free speech policy was developed primarily in reaction to Twitter’s actions, such as occasionally blocking privileges of individuals deemed to be “hateful.” Their commitment to free speech has not only allowed “alt-right” individuals to join, but also dissidents in foreign countries where freedom of speech is severely restricted.

Letting tech companies handle any type of censorship regarding the alt-right and/or white supremacists is a mixed bag as it opens the doors to general censorship of any viewpoint deemed inappropriate. A positive argument for such sanitization of publicly used language is that we are seeing the marketplace regulate this issue versus having the Congress or State legislatures getting involved. Allowing industries to try and create a resolution to resolve this problem is laudable. It is laudable because the marketplace (i.e. the internet community) is working out a problem of hate speech without waiting for the Congress or a federal agency, such as the Federal Communication Commission, step in through regulation.

Notwithstanding their efforts of trying to resolve this problem, the issue of malevolent language, there are two pitfalls with regulating speech of any kind from a policy perspective.

The first pitfall is that there are no universal standards that define “hate speech.” Hate speech is very subjective, the affects of which are in the eye of the beholder, which, results from this lack of definition. As Supreme Court Justice, Anthony Kennedy wrote in the case of Matal v. Tam,

… A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.^[2]

Matal v. Tam was a trademark case where an Asian rock band, known as the Slants were barred from trademarking their name. The US Patent and Trademark Office refused to trademark their name because the word “Slants” has been used derogatively against Asians.^[3]

As Justice Kennedy explained, any regulation dealing with ”hate speech” can invariably be used against “minorities or those with dissenting views.” Another example involves a pending case before the U.S. Supreme Court who will listen to the matter of Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission.^[4] In that case, the Supreme Court will determine whether or not the Colorado Civil Rights Commission was correct in ruling against Mr. Jack Phillips for violating Colorado’s Human Rights Statute after refusing to bake a wedding cake for a same sex couple because of his religious beliefs regarding marriage. The Colorado Civil Rights Commission determined that Mr. Phillips was guilty of discrimination for his refusal to bake the cake. Additionally, his religious beliefs were considered irrelevant by the commission.

The second dilemma that comes with companies regulating speech involves the matter of access. The Internet is a predominant source of where the majority of the population gets news and information. We live in a Twitter, Google, Instagram, and Facebook world as theologian Leonard Sweet once said. Television and print news publications are struggling to adapt. Additionally, it is very expensive for someone to break into the technology industry with a platform that is just as original as Google or Twitter. To do so requires a commitment of at least a million dollars. Because of this limited access for companies and their competitors to provide platforms for news, there is the fear that corporations, and not the government, will be enforcers of censorship. At this time, there are a select group of corporations that would maintain a stronghold on control in making decisions regarding what is and is not considered hate speech. For so few to have so much power over deciding the parameters for which language can be censored has the potential for abuse of that power.

The challenge facing the tech community is to develop standards as to what the grounds will be to either suspend or expel an individual or entity based on the type of language they use. These standards need to be stringent and well defined. This process cannot be done at the whim of special interests groups^[5] and will require honest discussion. Unfortunately, Silicon Valley has a tendency to go autocratic.^[6] If you think this is political posturing, go ask Brendan Eich, the former CEO of Mozilla who had to resign because he donated money to a political action committee dedicated to the passage of Proposition 8, which would have amended the state constitution of California by defining marriage as between a man and woman. Eich was pressured to resign after a website discovered that he had donated $1,000 to an organization that was supporting Proposition 8.

If the tech community fails to navigate this matter slowly and thoroughly, expect the Federal government, through its power to break up monopolies, and exert its political muscle. Although doing this in the name of free speech is potentially beneficial, in the end, it will more likely than not be bad for businesses because it would allow the government an opportunity to intervene and regulate more.

CITATIONS:

[1] To read more about Gab’s situation see “First Amendment in Peril?” at https://www.city-journal.org/html/first-amendment-peril-15401.html

[2] See Justice Kennedy’s full opinion at https://supreme.justia.com/cases/federal/us/582/15-1293/opinion4.html

[3] See The Supreme Court of the United States decision on MATAL v. TAM, June 2017, https://scholar.google.com/scholar_case?case=8669821076053045429&hl=en&as_sdt=20000006

[4] See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

Also see “Baker who refused to make wedding cake for gay couple is backed by Justice Department in SCOTUS case” http://www.abajournal.com/news/article/baker_who_refused_to_make_wedding_cake_for_gay_couple_is_backed_by_justice_#When:22:18:00Z

[5] Consider this example of what happens when censorship is applied on a whim based on politics – Following the events in Charlottesville, Cloudfare’s CEO made the decision to remove The Daily Stormer from their web hosting services. In a letter to his team Matthew Prince, Co-Founder & CEO of Cloudfare wrote, “Let me be clear: this was an arbitrary decision. It was different than what I’d talked talked with our senior team about yesterday. I woke up this morning in a bad mood and decided to kick them off the Internet. I called our legal team and told them what we were going to do. I called our Trust & Safety team and had them stop the service. It was a decision I could make because I’m the CEO of a major Internet infrastructure company.” See “Cloudflare CEO on Terminating Service to Neo-Nazi Site” https://gizmodo.com/cloudflare-ceo-on-terminating-service-to-neo-nazi-site-1797915295

[6] http://www.smh.com.au/world/technolibertarians-a-weak-link-in-democracys-defence-against-authoritarians-20170804-gxp8er.html.

August 28, 2017July 3, 2019

UPDATE 15a- Iran Renders Another Opinion in Zakka’s Case Affirming Prior Judgement

Statement on the Continued Unlawful Detention of Internet Freedom Advocate & Hostage Nizar Zakka

Mr. Nizar Zakka issued the following statement upon the continuation of his detention:

“If you’re traveling to Iran on business or pleasure, let my case be a lesson and a warning to others considering visits to Iran. I’m not the only one. If you value your freedom and are a foreigner, Iran is not safe for you. Don’t come here. I was invited to speak at an Internet ICT conference by Vice President Shahindokht Molaverdi. On my way to the airport I was kidnapped, locked up in Evin Prison, and was falsely charged with espionage. I am innocent and the Iranians know it. There is no rule of law in Iran, and I am a victim of this, especially if you’re a foreigner. I will continue to speak out for freedom and justice.”

Mr Zakka’s lawyer in the United States, Mr. Jason I. Poblete, added:

“As we have said in prior instances of alleged judicial action, Mr. Zakka was subjected to a Star Chamber-like proceeding by certain people in the Iranian government who are more interested in using him, and others, as political pawns in international politics. It’s wrong and inhumane.

In 1979, Iran held Americans hostages to exact political concessions from the United States. The Iranians are doing it again, but this time Iran is using a different twisted method for what amounts to hostage-taking so that Iran can, among other things, circumvent U.S. and E.U. sanctions or use innocent civilians, such as Nizar, as leverage to negotiate flawed agreements such as the JCPOA.

In summary, Nizar was invited and given a visa, Nizar was kidnapped, and then Nizar was falsely accused of espionage. It appears that he was targeted for capture so that it coincided during a critical time of the JCPOA negotiations. For these and other reasons, Iran remains a state sponsor of terrorism under U.S. law. We shall continue to press all governments that can and should help to demand that Iran unconditionally release of Mr. Zakka.

More information on Nizar Zakka’s case can be found below.

Prior Statements and Releases

August 10, 2017August 10, 2017

Cyber Laws To Keep An Eye On

The Small Business Cyber Training Act of 2017

Senator James Risch (R-ID) introduced “The Small Business Cyber Training Act of 2017” at the end of June when it was referred to the Senate Committee on Small Business and Entrepreneurship.^[i] The bill would amend a section of the Small Business Act to “require cyber certification for small business development center counselors.” If passed, the Small Business Administration would be required to establish a program to assist small businesses by developing a cyber counseling program. Small businesses tend to be easy targets for hackers because they serve as vendors for larger companies, which provide entry into those companies systems. For example, the Target breach that occurred a few years ago involved hackers accessing systems via an HVAC vendor, whose customer was a local Target store. When hackers got inside the vendor’s system, they were able to gain access to the vendor’s network and subsequently had access to Target’s network. Once they entered Target’s network, the rest was history.^[ii]

The challenge facing legislation tailored to small businesses is the common perception that cybersecurity is a very expensive proposition. Because of this perception, many small businesses are faced with deciding between investing in a potentially costly proactive plan or waiting for a data breach to occur and cleaning up the mess after the fact. In most cases, it appears that small businesses prefer to do nothing, because why invest in something that may or may not happen? Unfortunately, businesses that believe proactive cybersecurity planning is too expensive are the ones typically targeted and ultimately lose not only data, but also customers, and their reputation.

The International Communications Privacy Act

“The International Communications Privacy Act,”^[iii] originally introduced by Senator Orrin Hatch (R-UT) in 2016, and reintroduced July 2017, would amend the Electronic Communications Privacy Act (18 U.S.C. 2510-22)^[iv] to include measures to safeguard data stored abroad. The proposal calls for the U.S. Department of Justice to obtain a warrant in order to access any information that is stored on servers outside the United States. The legislation requires that the Department of Justice follow the normal protocol of notifying a foreign government of its intent to file a warrant only if the foreign government has no objection to the warrant. If the foreign government objects, the matter will be taken before a judge and the judge will get to decide if the US’ interest in the data that is the subject of the warrant, outweighs the foreign government’s refusal.

This legislation is relevant because of a pending matter involving the US Department of Justice and Microsoft over the use of a warrant in order to retrieve data that is stored in Ireland.^[v] As the legislation begins the review process through designated committees, we will be keeping an eye on potential changes to the text as the international policy implications behind such a bill could very well change. Additionally, there has been a common trend amongst International Trade communities that treat customers’ information as a commodity. Several nations have begun passing laws requiring the storage of their nationals’ data to be located within their country and not abroad, unless the foreign company or country meets their data privacy standards.

The Internet of Things (IoT) Cybersecurity Improvement Act of 2017

The third and final bill involves the inter-networking of electronic devices and products connected to the Internet that are capable of collecting and exchanging data (such as “Wearables” like Apple Watches or Fitbits, “Smart Home” products like Nest or Amazon’s Echo, and even connected cars)^[vi] otherwise known as the Internet of Things (“IoT”).^[vii] Introduced by Senator Mark Warner (D-VA) on August 1, and referred to the Committee on Homeland Security & Governmental Affairs, “The Internet of Things (IoT) Cybersecurity Improvement Act of 2017” calls for the Federal government to develop cybersecurity standards that vendors would agree to comply with if they wish to sell their products to the Federal government.^[viii] (The official text of the proposed bill should be updated by the Government Publishing Office after the August recess.)^[ix] As more products are becoming dependent on the Internet, and allow for more extensive collection and exchange of personal data, they create more opportunities for hackers to gain access to private information. Requiring vendors to either comply with the Government’s cybersecurity standard or the industry’s standard will benefit us all because that standard will be used when these same products are introduced to the commercial market. This requirement for cybersecurity compliance for vendors is especially important following the massive data breach experienced by the Office of Personnel Management in June 2015. The Office of Personnel Management experienced a loss of millions of active and retired government employees’ personnel file. The breach was an embarrassment to the agency because the files that were hacked included spies and the breach exposed how badly protected the agency’s network was against hacking.^[x]

In closing, these three bills are examples of the attempts by the Congress to become proactive in addressing cybersecurity issues. With constantly evolving technology comes new and improved ways to utilize these tools. Each one of the proposed bills discussed above address three different aspects of cybersecurity and the impact it has on the global community; The importance of enabling small businesses to assess their data privacy needs; The global impact and aspects involved in cybersecurity; and the potential uses and abuses provided by new technology.

As these bills progress through the Senate, it is important to diligently assess the parameters of current technology while at the same time ensuring that regulations do not hinder innovation. Following the August Recess, the Senate will begin reviewing these bills during which we will continue to provide updates and insight into the potential changes to come.

[i] The Small Business Cyber Training Act of 2017, S. 1428, 115^th Cong. (2017).

[ii] For more information on the Target data breach see “Learning from the Target Data Breach”

[iii] The International Communications Privacy Act, S. 1671, 115^th Cong. (2017).

[iv] (18 U.S.C. 2510-22) Full Text

[v] For more information on the case between the DOJ and Microsoft, see “Microsoft vs. DOJ Round 2”

[vi] For examples of products capable of connecting to the IoT, see “Internet of Things Devices, Applications & Examples”

[vii] More information on the Internet of Things see “Simple Explanation of the Internet of Things That Anyone Can Understand”

[viii] The Internet of Things (IoT) Cybersecurity Improvement Act of 2017, S. 1691, 115^th Cong. (2017).

[ix]The text of S. 1691, as introduced by Sen. Warner can be viewed here.

[x] To learn more about the OPM breach see “Congressional Report Slams OPM on Data Breach“

July 28, 2017July 3, 2019

UPDATE 14- After Learning of Son’s Testimony, Congressional Resolution, Zakka Breaks Hunger Strike After 33 Days

Statement on the Continued Unlawful Detention of Internet Freedom Advocate Nizar Zakka

After Learning of Son’s Congressional Testimony, Congressional Resolution, Nizar Zakka Breaks His Hunger Strike on 33rd Day

US Legal Permanent Resident, Nizar Zakka, concluded his 33-day hunger strike after learning of his son’s testimony before the House Committee on Foreign Affairs Subcommittee on Middle East and North Africa on hostages held by Iran, as well as the passage of H.Res. 317, a House Resolution calling for the unconditional release of all U.S. citizens and Legal Permanent Residents held hostage by Iran.

Through his attorney, Jason I. Poblete, Mr. Zakka issued the following statement:

“At the request of my sons, and because of the support of the American Congress, I’ve decided to stop my hunger strike. 33 days of hunger strike, and the support of family, friends, and even strangers, has helped me find protection, help, and guidance that I did not have before. I want to thank again the Congress, the American people, for not forgetting about me and other fellow hostages held captive in Iran. I also thank fellow hostages and prisoners in Evin prison, for showing solidarity with my cause, for treating me as brother, this has truly been a gift, a huge difference in how the Iranian government has treated me. I am innocent of the charges against me. I just want to go home and be reunited with my family and friends.”

For more information on the House Foreign Affairs Subcommittee on Middle East and North Africa hearing, “Held for Ransom: The Families of Iran’s Hostages Speak Out” go here.

The House Resolution, H.Res. 317 – Calling for the unconditional release of United States citizens and legal permanent resident aliens being held for political purposes by the Government of Iran, which was passed unanimously on July 26, can be read here.

Prior Statements and Releases