Should WHY you’re not buying a SodaStream cost you a job?

Dear Joel,

Thirty-seven Republicans and 13 Democrats have co-sponsored S.720, the Israel Anti-Boycott Act, which is part of a larger trend of hostility toward those who support using their power as consumers to be peacemakers.

The bill seeks to amend the Export Administration Act of 1979. THAT act was a response to the Arab League’s decades-long boycott of Israel (It began as a targeted boycott of the Jewish community in Palestine before Israel was a state.) and of the Organization of Arab Petroleum Exporting Countries’ (OPEC) oil embargo against the US–an embargo that itself was retaliation for the US supplying Israel with weapons during the Yom Kippur/Ramadan War.

The Export Administration Act and some related laws (the Ribicoff Amendment to the 1976 Tax Reform Act), according to the Office of Antiboycott Compliance (OAC), “were adopted to encourage, and in specified cases, require U.S. firms to refuse to participate in foreign boycotts that the United States does not sanction.” The larger aim is to prevent US firms “from being used to implement foreign policies of other nations which run counter to U.S. policy.” The antiboycott laws are, in effect, about Israel, but they apply to “all boycotts imposed by foreign countries” that the US does not agree to.

This takes a rather specific shape: Since the Arab League states were boycotting Israel, they required US businesses doing business with them to provide evidence that those businesses were also boycotting Israel (a secondary boycott). US law prohibits US businesses from supplying that information and requires that, if boycotting nations where US businesses want to engage in commerce request it from a company, the company report the request for information to the OAC. US lawmakers very cleverly tied this to discrimination against people based on race or religion, arguing that US companies cannot provide foreign states with information about the race or religion of employees as a condition of participating in trade in nations where people of particular races or religions are despised. In this way, pro-Israel groups can call those who support BDS racists and religious bigots, even though no BDS supporters argue for that international trading partners should get to decide whether US companies get to hire or fire people based on their faith or skin color.

So, for the last 40 years, we’ve had a law that says that corporations cannot boycott nations that the US likes (which usually means that we see them as an economic or security partner) when those boycotts are “foreign” and, if asked to participate in such a boycott as a condition of doing trade in a foreign nation, US companies report it.

The current revision of that act–the one in the Senate right now–adds that US companies also can’t participate in boycotts “fostered by international governmental organizations” (The law specifies the UN and the EU but does not limit who is an “international government organization” to just these two groups.) when those boycotts target Israel. Additionally, it directs the Export-Import Bank of the US, a government agency that, depending on your perspective, either provides credit for international trade that is too risky for the open market to support or is the worst kind of crony capitalism, to oppose boycotts of Israel. S. 720 also says that it is revising the 1979 Act “for other purposes,” a vagueness that ought to make us all a little uneasy.


There is also a bit of confusion as to WHO this law applies to (and here is why Sixoh6 readers should pay attention). Though defenders of the law seem to suggest that only corporations are targeted here, the message from the OAC is a bit murkier:

“The antiboycott provisions of the Export Administration Regulations (EAR) apply to the activities of U.S. persons in the interstate or foreign commerce of the United States. The term ‘U.S. person’ includes all individuals, corporations and unincorporated associations resident in the United States…”

The italics are mine there.

Even if this only applies to “corporations,” what a “corporation” is is a bit unclear. Hobby Lobby is a corporation, but as a “closely-held” one, it gets to claim the “religious freedom” not to provide insurance coverage that includes some kinds of contraception. The conservative propaganda outfit Citizens United gave us “free speech” for corporations. In a time when corporations have the right of “free speech” to dump unlimited money into political races, how do they not have the right to boycott other nations?

That, to me, is the lesser worry. The greater worry is that individuals within the US, it appears, can be punished for participating in a “foreign-led” boycott of Israel.

We already have a number of states that are punishing people for exercising their right to participate in boycotts businesses that operate in beyond the green line, the border of Israel in 1949, after the Arab-Israeli War.  Of course, no one knows if your choice not to buy a SodaStream, a Stanley Black and Decker drill, or a tub of Sabra hummus is personal or political. But US companies are already being punished by individual states where they operate for their refusal to do business with companies that they see as contributing to continued strife in the West Bank. (Again, it is unclear to me how corporation can be punished for acting on its conscience in regards to peace in the Middle East but not for its refusal to provide contraceptive insurance coverage to employees.)

And we have states denying individuals operating as independent contractors the ability to work for those state governments unless they promise under oath not to boycott Israel, which is defined in Kansas, where Esther Koontz’s case is heading to court, as “the refusal to engage in commercial relations with persons and entities engaged in business with Israel and Israeli controlled territories.” Esther is an independent contractor with the state, which is why she was asked to sign this oath. But under guidance from the OAC, it’s not clear that the law only applies to independent contractors.


Did you not buy a product that you believe contributes to human suffering in contested areas of Israel as an independent contractor or as a private citizen? Did you not buy it for your office at work, your office at home, or your kitchen counter? Did you not buy it because you are trying to influence Israeli policy or because you just don’t drink carbonated beverages or because you are too cramped for kitchen space? If for a combination of reasons, how much of them have to be “I want Israel to find peace” to count as a boycott?

Since the state can’t really know if your failure to own a product made in the Gaza Strip, West Bank, or East Jerusalem is due to a “refusal to engage in commercial relations” out of political motivation or just because you’re broke or don’t want or need those things, states are requiring a pre-emptive pledge that your reasons won’t be political.

This is an absolute burden on individual conscience. For those of us who have made a reasoned, principled decision on the matter of BDS, it’s insulting.

But for those who don’t follow the politics of US-Israel relation, it’s abusive.

Take Dickinson, Texas, where residents seeking help in the face of Hurricane Harvey last month were required to sign such an oath. Imagine it: a poor, bedraggled person has just survived one of the nation’s worst natural disasters and before they can get help, they are supposed to think through whether they should sign away their right to boycott in exchange for food?

Lie–that’s what you do when you are being asked to choose between your conscience and a meal. And it’s perfectly okay, because the state of Texas was asking people for information it has no right to have, in a situation that is coercive, and you have no obligation to provide them with accurate information. In cases in which people cannot have an informed opinion because they have not done the necessary thinking to do so, they are signing the oath without their consent–and the blame for that is not on them but on those who would withhold shelter and food. While officials backed off after public outcry and state legislators said that the application this was was a “misunderstanding,” it’s also clear that we are facing a large-scale effort to intimidate people from exercising their right to boycott.



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