March 03, 2018

Cardin, Portman Amend Israel Anti-Boycott Act

While still protecting U.S. businesses, this new version of the bill clarifies that nothing in the legislation restricts constitutionally-protected free speech or limits criticism of Israel or its policies

WASHINGTON – U.S. Senators Ben Cardin (D-Md.) and Rob Portman (R-Ohio) have released an updated version of their bill, the Israel Anti-Boycott Act, which includes language clarifying the rights of individual U.S. citizens to engage in personal boycott activity and affirming that nothing in the Act should be construed to diminish or infringe on any right protected under the First Amendment. After months of a healthy dialogue with the public and consultations with outside groups, lawmakers and other legal experts, Cardin and Portman have worked to address concerns that have arisen regarding the legislation, which protects U.S. business from being pressured into complying with unsanctioned foreign boycotts by extending provisions of the 40-year-old Export Administration Act to activity by international governmental organizations. They continue to work with Senate Banking Committee leadership, Chairman Mike Crapo (R-Idaho) and Ranking Member Sherrod Brown (D-Ohio), to find a timely vehicle for consideration of this legislation.

The text of the updated Israel Anti-Boycott Act (S. 720) can be found here.

Changes in the language include:

  • Legislative affirmation that nothing in the Act should be construed to diminish or infringe on any right protected under the First Amendment;
  • A clarification that a person’s noncommercial speech or other noncommercial expressive activity cannot be used as evidence to prove a violation under the Export Administration Act (EAA);
  • A statement of policy in support of the rights of U.S. citizens to engage in personal boycott activity;
  • For the new actions added to the EAA by the bill, limiting penalties to monetary penalties only;
  • A statutory definition of “covered person,” which makes clear that for individuals to be subject to EAA regulations, they must be acting in an official commercial capacity;
  • More specific legislative language to clarify that the bill is intended to reach certain data collection efforts by foreign countries and international governmental organizations, not requests for information from U.S. individuals.

“We have welcomed the public discussions that have been essential in focusing this bipartisan legislation in such a way that definitively upholds the rights of individual Americans while clarifying decades-old legislation,” said Senator Cardin.

“I am confident this bill strikes the right balance between protecting U.S. businesses and our Israeli allies from unfair targeting by international organization, while upholding America’s commitment to free speech and individual liberty,” said Senator Portman.

“I applaud the hard work of Senators Portman, Cardin and Brown in putting together this bipartisan bill to combat Boycott, Divestment and Sanctions (BDS) efforts targeting Israel,” said Senate Banking Committee Chairman Crapo. “The bill addresses inappropriate attempts to target U.S. companies with boycotts and other actions while engaged in the normal business activities in Israel and with entities in Israel-controlled territories.”

“I strongly support Israel and measures to combat BDS efforts directed against Israel. I commend Senators Cardin and Portman on this new version of their anti-BDS legislation, which signals progress in their efforts to ensure strong enforcement and clarify the activities covered by the bill. I’ll continue to work with my colleagues to move this legislation forward,” said Senate Banking Committee Ranking Member Brown.

The Israel Anti-Boycott Act continues its goal of protecting American companies from being used by foreign countries and international governmental entities to further or support unsanctioned foreign boycotts. The revised bill also reinforces the rights of U.S. companies and individuals to express their points of view, speak in favor of boycott, divestment, or sanctions (BDS) activities, and engage in boycott activity of their own accord. Individuals who actively avoid purchasing goods and services because of their own political viewpoint would not be subject to the bill. Similarly, the bill does not regulate civil society organizations who are critical of Israeli policies or prevent them from speaking in favor of BDS.

Per the text of the legislation, the Israel Anti-Boycott Act does not “alter the established policy of the United States or establish new United States policy concerning final status issues associated with the Arab-Israel conflict, including border delineation that can only be resolved through direct negotiations between the parties.” Consistent with U.S. policy, the Act does not make any statement about Israeli settlements. 

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