One recurring comment I’ve seen in defense of Linus Torvalds’ decision to remove several Russian maintainers is that because the Linux Foundation is an organization based on USA, they have to comply with USA regulations regarding sanctions, so they had no choice on the matter.
On the surface this seems like an ironclad argument and therefore the case should be closed. But when you actually analyze the claim, it falls apart very quickly.
First of all, you can’t punch a Russian on the face and then say “sanctions” as if it were a magical word justifying any action against Russians. Sanctions are enforced by laws and regulations that have precise legal terminology and limited scope. The USA sanctions against Russia have an objective, and they don’t prohibit all interactions with Russian entities, only those that would hinder the achievement of that objective.
The USA government isn’t going to come after you if you have a beer with a Russian national. So let’s consider what it would actually do.
Timing
The government does not necessarily prosecute every transgression every time. It picks its battles, but more importantly in this case: it picks the time.
Prosecuting an individual that donated money to a Russian charity would be politically unwise, but it would be even more so right before elections.
An incumbent candidate trying to maximize his chances of being reelected would not risk potentially unpopular moves, especially so close to the elections. And for those not paying attention: the USA presidential election will take place in a couple of weeks.
There is no chance the Biden administration would prosecute the Linux Foundation for “violating” sanctions at this time.
And in a couple of weeks Donald Trump might be elected president, and if so he will likely dismantle these Russian sanctions.
So the Linux Foundation could have very easily just waited a couple of weeks to see what happened. The issue could be resolved very soon on its own.
Letter
Assuming that the government investigates the LF (not everyone is investigated), and in addition it finds that it did violate the regulations put in place to enforce the sanctions, they would not swat every member of the organization and send them to prison overnight. There’s a process.
The agency that enforces such regulations is the Office of Foreign Assets Control, and it doesn’t treat all violations the same way: some are considered non-egregious. Even if the OFAC considered that the LF violated the regulations, they would likely send a Cautionary Letter or a Cease and Desist Order.
Did the Linux Foundation receive any letter from the government? No.
The Linux Foundation chose on their own volition to preemptively shield themselves from any potential action that the government could take, just to be safe.
That’s the opposite of having “no choice”.
The LF decided to throw overboard the Russian maintainers rather than risk receiving a letter from the government. That’s their choice.
If they had waited to receive a letter from the government, then they could argue their decision was for “compliance”, but that’s not what happened. Nobody asked them to be compliant with anything.
People are assuming the USA government is some totalitarian regime that is going to send you to the Gulag in your first minor offence. But if that was the case the LF should seriously consider moving outside of USA.
No deal
The LF would have never received a letter from the government, because the LF doesn’t make deals with Russian individuals or companies.
All Linux maintainers do is approve patches, that’s it. How is saying “I approve this patch” considered in any way a “deal”? There’s no money involved, there’s no good or services exchanged: it’s not a transaction.
Preventing Serge Semin from approving patches is not going to hurt the Russian economy nor is it going to hurt Vladimir Putin politically.
The Office of Foreign Assets Control has absolutely no interest in the status of Serge Semin as maintainer because the Linux Foundation is not paying him to do that job. There are no assets to control.
There’s simply no regulation that says you can’t exchange words with Russian nationals. That has nothing to do with sanctions in any way.
So when people say “the LF has to comply with USA sanctions”, that completely glosses over what sanctions actually are. Even if true, that’s irrelevant here, because sanctions don’t prohibit commenting on patches.
The MAINTAINERS file has absolutely nothing to do with sanctions.
Lawyers
The other magic word that is being used to justify the LF’s actions is “lawyers”: the LF has to remove these maintainers because the lawyers said so. Not true.
First of all, we don’t know what the lawyers actually told the Linux leadership, and that’s by design. Secondly, the LF doesn’t work for the lawyers, the lawyers work for the LF: their job is to do what the LF says. If the LF says “we are going to fight the government”, then that’s what the lawyers should do, or they’ll be replaced by other lawyers who will.
In 2016 the USA government ordered Apple to write software to unlock a particular iPhone, and Apple refused (Apple–FBI encryption dispute).
It is possible to push back against the government, and it is possible to win a case against the government in federal court, even against the lawyers’ advice. If you have the courage, which the LF clearly doesn’t.
To be fair, even it’s possible to fight the government, we can say that the reasonable thing to do is to follow the lawyers’ advice.
Fine, that is the case, but it’s still a choice. It’s simply false to say the LF had no choice.
And let’s not forget that lawyers are human, and therefore not infallible. Even if it’s reasonable to follow your doctor’s advice, your doctor can be wrong, which is why when making an important medical decision (which is your choice), you should consult more than one doctor, not just blindly follow one doctor’s advice.
Permission
Assuming that the lawyers were correct and accepting approvals from Russian nationals could potentially violate the regulations regarding sanctions, there’s still another pathway: ask for permission.
The USA government is not an entirely unreasonable, intractable monolith; it can listen to reason, and mechanisms are in place to request exceptions: Are there exceptions to sanctions prohibitions? Are exceptions the same across sanctions programs?
Yes. There may be exceptions to sanctions prohibitions. Exceptions may take the form of authorizations, such as general licenses and specific licenses, or exemptions.
…
OFAC may also issue specific licenses on a case-by-case basis. In contrast to general licenses, which authorize certain transactions for all persons who meet the conditions described in the license, specific licenses only authorize the licensee(s) to engage in certain transactions that would otherwise be prohibited. For guidance on how to request and apply for a specific license, please see 31 CFR § 501.801 and the License Application page on OFAC’s website.
Office of Foreign Assets Control
Did they request such specific license? If they did, they could have easily explained so already, but they didn’t.
Facts
If you personally believe the Linux Foundation made the right choice, that’s fine, everyone is entitled to their own opinion, but don’t pretend they had no choice because of “sanctions” or “lawyers”. That’s simply not true.
These are the facts:
- They could have waited a couple of weeks
- They could have waited for a government request
- They could have asked for a permission
- They could have made their legal rationale public
- They could have defended their case in court
They chose to not do any of those things.
The Linux Foundation had choices. Period.