188. If I am a non-U.S. company that exports information and communications technology to Iran or Syria, will I be designated under the GHRAVITY E.O.?
The measures in this order are designed primarily to address the need to prevent entities located in whole or in part in Iran and Syria from facilitating or committing serious human rights abuses. These measures are not designed to prevent the provision of information and communications technology necessary to enable the Iranian and Syrian people to freely communicate with each other and the outside world. That said, those providing communications technology to Iran or Syria that has the potential to facilitate computer or network disruption, monitoring, or tracking should exercise great caution given Iran and Syria’s use of this technology to assist in the commission of serious human rights abuses. [04-23-2012]
1) Refer to Notes Common to the GHRAVITY EO FAQs (184-190), comments to FAQ 183.
2) It is uncommon for OFAC to raise the possibility of a non-U.S. person being designated under a what would ordinarily be characterized as a "primary sanctions" authority for what could be a lack of due diligence exercised in the course of an ordinary international commercial transaction. The FAQ has broader implications for other "tier 2" or "derivative designation" criteria. In this FAQ, OFAC is referring to the part of the EO that allows for the designation of persons determined:
"to have sold, leased, or otherwise provided, directly or indirectly, goods, services, or technology to Iran or Syria likely to be used to facilitate computer or network disruption, monitoring, or tracking that could assist in or enable serious human rights abuses by or on behalf of the Government of Iran or the Government of Syria."
Unlike the typical "secondary sanctions" designation provision, there is no knowledge threshold here, i.e. nothing that says a person must have "knowingly" acted in the manner described. In all likelihood, OFAC would apply the typical "reason to know" standard, at a minimum.
As of 12/2020, there have been no designations pursuant to EO 13606 that appear as though they could have resulted from ordinary, arm's-length commercial transactions. Refer generally to General Note on the terms "knowingly," "should have known" and "reason to know" in the Primary Sanctions, Secondary Sanctions and Derivative Designation Contexts (System Ed. Note).