J Street Analysis of the "Israel Anti-Boycott Act":

As an organization opposed to the Global Boycott, Divestment and Sanctions (BDS) movement against
the State of Israel, J Street is deeply concerned by legislation that would, under the guise of combating
BDS, actually harm US and Israeli interests by extending US legal protections to illegal West Bank
settlements that undermine the prospects for a two-state solution to the Israeli-Palestinian conflict. We
therefore oppose S.720/H.R.1697 as written, as it raises a number of concerns:
 Green Line-blurring definition of Israel

The bill defines “actions to boycott, divest from, or sanction Israel” as having the meaning given
that phrase in the Trade Priorities and Accountability Act of 2015, which in turn defines such
actions as “intended to penalize or otherwise limit commercial relations specifically with Israel
or persons doing business in Israel or in Israeli-controlled territories” (emphasis added).
This definition - which the Congressional Research Service noted earlier this month has been included in
a number of recent bills - blurs the critical distinction in US law between the State of Israel and the
territories it has occupied since 1967, breaking with 50 years of US policy regarding Israeli settlements in
the West Bank. This definition's inclusion in the Trade Facilitation and Trade Enforcement Act (in the very
limited context of trade negotiating objectives) elicited an objection from President Obama in his signing
statement that "Certain provisions of this Act, by conflating Israel and 'Israeli-controlled territories,' are
contrary to longstanding bipartisan United States policy.”
By seeking to erase the legal distinction between Israel and the settlements and placing the settlements,
in effect, under US legal and diplomatic protection, proponents of this definition have used
purportedly anti-BDS measures as pro-settlement, anti-two-state solution vehicles. Such efforts are both
divisive and counterproductive. Instead of bringing opponents of the Global BDS Movement together into
a broad coalition, they divide us by making the issue about the settlements.
The bill's inclusion of a "rule of construction" regarding US policy toward Israeli-Palestinian negotiations
does not cure this problem, because the functional effect of the bill would still be to require the US
Government to treat Israel and the occupied territories as a single entity - and in this case, in a criminal
statute (see below). If, as its proponents argue, the expanded definition of Israel included in the bills is not meant to
change US law or policy, then the references to it could simply be stricken from the text. The adamant resistance of
the definition's proponents to doing so is conclusive evidence that this change in US law and policy is, in fact, the
entire point of the legislation.
 Criminalizing Measures Limited to the Settlements

Beyond undermining longstanding US policy toward the settlements, S.720/H.R.1697's massive
expansion in the definition of boycotts against Israel in the context of the existing US anti-boycott statute's
declaration of policy (50 USC §4602) creates a risk that individuals complying with or merely “furthering”
or “supporting” a foreign country’s or international governmental organization’s boycott targeted
exclusively at the settlements could be prosecuted for violating US anti-boycott laws (50 USC §4607) - a
criminal offense. The penalties associated with these offenses are serious, potentially including
substantial fines and prison time of up to 10 years (50 USC §4610).
While it would ultimately be up to the courts to decide whether someone was supporting a particular boycott by a
foreign country or international governmental organization in violation of the modified US anti-boycott statute, this
bill could give Attorney General Jeff Sessions the power to prosecute any American who chooses not to buy
settlement products for a felony offense. That kind of authority should not be given to any administration, let alone
one that has engaged in extreme rhetoric against political opponents, including threats to "lock [them] up."

  Possible Free Speech Concerns

Noting that we are not free speech experts, the bill's criminalizing of the mere requesting or furnishing of
information related to a boycott - whether directed against the settlements or otherwise - raises possible First
Amendment issues on which we'd recommend you consult with free speech experts. As the Congressional Research
Service noted in its excellent report examining the issue, "the degree to which a restriction on BDS activity would
implicate the First Amendment and whether, even if it did, it would nonetheless be permissible turns on a number of
unsettled questions." And contrary to the assertions of those who say there is legal precedent on-point, CRS found
that "No definitive precedent exists examining whether BDS activity is protected by the First Amendment."