Unfriended: Should Facebook be Required to Enforce US Sanctions Against its Users?

Late last year, Facebook abruptly shut down the accounts of Ramzan Kadyrov, the despotic leader of the Chechen Republic. The social media giant claimed that it had a “legal obligation” to disable Kadyrov’s Facebook and Instagram accounts because of new sanctions imposed by the United States government under the Magnitsky Act. Among other things, Kadyrov has been accused of ordering the assassination of a political opponent, personally torturing another, and leading a violent purge of gay men. He’s also an active social media user: four million people followed his Facebook and Instagram profiles, and 400,000 continue to follow him on Twitter. Kadyrov had become famous for posting videos of himself wrestling a crocodile, praising Russian President Vladmir Putin, and—perhaps ironically—mocking what he saw as the ineffectiveness of American sanctions.

As many journalists noticed, Facebook hasn’t disabled the accounts of other sanctioned individuals, including Venezuelan President Nicolas Maduro, Russian Deputy Prime Minister Dmitry Rogozin, and Israeli billionaire Dan Gertler. Facebook explained this seeming inconsistency with an unhelpful truism that it “operate[s] under the constraints of US laws, which vary by circumstance.” Its statements have led observers to speculate that Facebook is using the sanctions as a pretextual reason to cut off a user it already disliked, or that it’s “picking and choosing compliance” in an attempt to please the government. Although those explanations seem plausible at first glance, a careful look at the relevant laws suggests an even simpler (albeit more mundane) one: Facebook may actually be correct that it had a legal obligation to suspend Kadyrov’s accounts but not those of others targeted by American sanctions.

First, a bit of background: In 2012, Congress passed the Magnitsky Act, named in honor of Russian accountant Sergei Magnitsky, who heroically exposed a nearly quarter-billion dollar tax fraud perpetrated by Russian government officials. In retaliation for his whistleblowing, Magnitsky was arrested, tortured, and left to die in a Moscow jail cell. The Magnitsky Act banned the officials suspected of involvement in his death from entering the United States or using its financial system. A second statute, the Global Magnitsky Act, was signed into law by President Obama in December 2016; it built on the original legislation by authorizing the President to impose sanctions (including travel restrictions, property seizures, and financial system bans) on foreign persons or organizations complicit in human rights abuses or “acts of significant corruption.” Despite general skepticism (including on this blog) about the Trump Administration’s commitment to policing human rights and corruption around the globe, the administration took a number of significant steps during the closing days of 2017 to implement these laws. First, on December 20, the Treasury Department designated five new individuals (including Kadyrov) under the original 2012 Magnitsky Act, bringing the cumulative number of people sanctioned to 49. Second, that same day, President Trump signed an executive order sanctioning 15 people and 37 entities under the newer Global Magnitsky Act. Lastly, on December 21, the Treasury Department issued new regulations implementing the original Magnitsky Act.

The key difference between Kadyrov and the other sanctioned Facebook users is that Kadyrov was sanctioned under the original 2012 Magnitsky Act, while all of the other active Facebook users were sanctioned pursuant to the 2016 Global Magnitsky Act or to executive orders dealing with Ukraine or Venezuela. As noted above, the Treasury Department promulgated new regulations implementing the original Magnitsky Act on December 21, 2017—only one day after the administration announced the first individuals to be sanctioned under the Global Magnitsky Act, as well as new individuals (including Kadyrov) to be sanctioned under the original Magnitsky Act. Those new regulations—which, again, apply only to those sanctioned under the original Magnitsky Act—declare that “U.S. persons may not…provide legal, accounting, financial, brokering, freight forwarding, transportation, public relations, or other services to a person whose property and interests in property are blocked.” Facebook is a U.S. person and Kadyrov was using its services for public relations, meaning that under these regulations, Facebook was legally obligated to suspend Kadyrov’s accounts. As of now, however, the Global Magnitsky Act does not similarly extend U.S. sanctions to “public relations” services—explaining why Facebook was not compelled to block those other sanctioned users.

Extending the reach of U.S. sanctions is a positive development for anticorruption and human rights efforts. Through both of the Magnitsky Acts, the U.S. government has shown its desire to be a global leader in combatting corruption and despotism. To that end, it harnessed the worldwide reach of the American financial system, and the attractiveness of traveling or investing in the United States, to deter and punish abuses of power. But those mechanisms only go so far. Kadyrov himself made that shortcoming clear when, after he was sanctioned but before his account was terminated, he taunted on Instagram, “so I was banned from entering America…I would not have gone to the USA even if all the currency reserves in the country were promised to me as prizes.” The reality is that many dictators can live happily, and luxuriously, without access to U.S. banks or condos in Miami or New York. But depriving them of channels to communicate with their (repressed) populations could have real impact—as Kadyrov’s frustrations, voiced via his still-active Twitter, illustrate. In today’s era of constant social media interaction, broadening sanctions to cover these platforms might prove more effective and painful than banking or travel restrictions ever could.

To be sure, social media companies are unlikely to be keen about the costs of compliance or, more significantly, about being enlisted as partisans in the fight against corruption and human rights abuses. But that’s a fair cost of being American companies. Along with access to a vast user base, deep pools of capital, and a talented labor supply comes a corresponding obligation to, at the very minimum, comply with U.S. law—and, ideally, to help promote the values that made their company’s success possible. And while free speech advocates have sounded alarms about censorship, it seems misplaced to be concerned about the speech rights of a person who is literally accused of murdering those who speak out against him. Free expression can best be protected by ensuring that despots cannot use American companies as tools of repression.

By blocking Kadyrov, Facebook is likely just following the law as written—but it’s also doing a valuable public service by impeding Kadyrov from continuing his reign of terror. Twitter should follow suit. And if it doesn’t do so voluntarily, the U.S. government should show that it’s serious about forcing tyrants to choose between either plundering and repressing or having access to American resources.

5 thoughts on “Unfriended: Should Facebook be Required to Enforce US Sanctions Against its Users?

  1. I understand that Facebook also needs to obey the laws of the countries it operates in. While completely shutting an account down because of some non-U.S. law might be far-fetched, limiting access to certain accounts within a territory to fulfill “legal obligations” thereof seems feasible. How would Facebook strike a balance between preserving its values and complying with all the laws around the world (except of course for the few countries that it does not have any presence).

  2. Jacob—
    Thank you for addressing this interesting issue. The Tamkin article you cited mentions that the Berman Amendment might not apply to the Magnitsky Act, which means that the U.S. government can sue Twitter to force Kadyrov’s removal from the site. Do you think that Facebook banned his page as a preventative measure to avoid legal costs, or is there another reason? And do you think the U.S. government will pursue litigation against social media platforms that refuse to silence users implicated under the Act?

    Additionally, your post raises questions about ways in which individuals might continue to propagate their messages on platforms that banned them. If Kadyrov appears in a large number of his allies’ social media posts—showing the same content that would have otherwise been on Kadyrov’s page—will sites like Facebook need to block those posts, even though their “authors” are not sanctioned by the Magnitsky Act?

  3. Pingback: Unfriended: Should Facebook be Required to Enforce US Sanctions Against its Users? | Matthews' Blog

  4. Thanks Jacob for the very interesting post. My understanding towards Facebook shutting down accounts violating the law is that it is more of a symbolic action than aiming to produce real-life impact, in that – as pointed out by Victoriya – allies of the accounts can always post similar content or the accounts themselves could easily register another account under a different name/ IP address. The significance, from what I see, is the “naming-and-shaming”, and the message sent to all users of Facebook that it does not tolerate human rights violation or grand corruption. Nevertheless I do perceive it as a good measure for public education.

  5. Jacob—thanks for clarifying what appeared to be the inconsistency in Facebook’s behavior, as well as for highlighting the Trump Administration’s welcome activity on this front. I was wondering, however, about the latter part of your post, when you note that the potentially high cost of compliance for companies or their uneasiness with enlistment in international power struggles is “a fair cost of being American companies.” But what if it isn’t? I wonder if in the future social media companies may decide that being an “American” company threatens their (perceived) independence too much. If so, might we see companies moving overseas – not to tax havens but perhaps to compliance havens? Of course, as John mentioned above, Facebook and other such companies will have to still comply with the rules of the countries within which they operate. But, over time, the “costs” of actual incorporation in aggressively anti-corruption nations like the United States might prove too much.

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