An “America First” Electronics Ban?

March 28, 2017

Getting to “America First”

Recent Administration Actions Suggest That U.S. Laws Might Be Blurred and Leveraged to Advance “Nationalist” Trade Objectives

(excerpted from a recent MassPoint publication)

Related: #ElectronicsBan Timeline 


Two Trump Administration actions taken this month suggest that U.S. laws and legal authority might be leveraged in unconventional ways to advance trade policies that are protectionist, “nationalist” or that otherwise put “America First” in accordance with President Trump’s mantra. The actions—the Middle East airports electronics ban and the record-setting sanctions and export controls enforcement action against China’s ZTE[1]—are factually and legally unrelated. But each have attributes that can reasonably be interpreted to indicate that protectionist trade goals may have been at play in both actions (in the ZTE case, protectionist or “America First” themes were evident in official descriptions of the enforcement action). In this publication, the Middle East airports electronics ban is discussed. ZTE will be discussed in an upcoming installment of MassPoint post-Election 2016 and transition updates.

Middle East Airlines Electronics Ban

On March 20 Royal Jordanian Airlines broke news with a now-deleted tweet informing passengers that, pursuant to instructions from “concerned U.S. departments,” electronic devices other than cellular phones and medical devices would be barred from airplane cabins.[2] As details of the electronics ban materialized, some observers and experts raised doubts about the government’s stated security purposes for the ban, which applies to non-stop flights departing from ten Middle East airports and, effectively, only to the Middle Eastern carriers that operate non-stop flights from the affected airports.[3]

Some skeptics of the government’s explanation posited that the electronics ban was a “Muslim Ban” lite, or a “Muslim Ban by a thousand cuts.”[4] Others questioned whether the electronics ban was designed to achieve or appear to advance protectionist objectives, specifically by disadvantaging three Middle Eastern airlines—Emirates (Dubai), Etihad (Abu Dhabi), and Qatar Airways—that for years have been accused by the “Big 3” U.S. airlines (United, Delta, and American) (the US3) of enjoying government subsidy-fueled unfair competitive advantage in violation of bilateral “Open Skies” agreements with the United States.

If it is the case that the electronics ban was largely or entirely driven by non-security reasons—and again, this is one reasonable interpretation only—it would be an instance in which U.S. laws and legal authority have been blurred and leveraged to advance “nationalist” or protectionist, “America First” trade objectives.

NOTES

[1] Jacob Pramuk, Commerce Sec Ross: ‘We are putting the world on notice’ with ZTE settlement, CNBC, March 7, 2017.

[2] Royal Jordanian informed passengers arriving from and departing to U.S. destinations. It is not clear if the airline was then under the impression that the electronics ban would be applied to flights departing the United States.

[3] In a March 21, 2017 Q&A, the Department of Homeland Security (DHS) indicated that the Electronics Ban was adopted for security reasons. Rather, the DHS described the security reasons for and timing of the Electronics Ban in terms of continuing threats, stating, inter alia, that: “We have reason to be concerned about attempts by terrorist groups to circumvent aviation security and terrorist groups continue to target aviation interests.”  DHS, Q&A: Aviation Security Enhancements for Select Last Point of Departure Airports with Commercial Flights to the United States, March 21, 2017.  See also DHS, Fact Sheet: Aviation Security Enhancements for Select Last Point of Departure Airports with Commercial Flights to the United States, March 21, 2017. The airports are Queen Alia International Airport (AMM), Cairo International Airport (CAI), Ataturk International Airport (IST), King Abdul-Aziz International Airport (JED), King Khalid International Airport (RUH), Kuwait International Airport (KWI), Mohammed V Airport (CMN), Hamad International Airport (DOH), Dubai International Airport (DXB), and Abu Dhabi International Airport (AUH). Only Middle Eastern carriers operate non-stop flights from those airports to the United States.

[4] The background here being that the Administration was attempting a “Muslim Ban” after the two Presidential Executive Orders of January 27 and March 6, 2017 identically titled “Protecting The Nation From Foreign Terrorist Entry Into The United States” were substantially blocked by the courts. Harriet Agerholm, Donald Trump administration’s restriction on electronic devices on flights ‘a Muslim ban by 1,000 cuts’, The Independent, March 21, 2017 (quoting an anonymous “former administration official who was familiar with aviation security procedures”).

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