A Threat to First Amendment Rights

Article excerpt

Editing. At first glance, it's such a simple thing. However, the U.S. Office of Foreign Assets Control's (OFAC) position on the importation and exportation of "information materials" has made editing a complicated, even illegal, act. In my December 2003 column, I outlined OFAC's rulings on the process of editing papers from such countries as Iran. Recent developments warrant an update on this particularly important matter for publishers.

OFAC has ruled that while publishing works from embargoed countries is legal, processing an editorial work, including peer review, is not. In response, the Association of American Publishers (AAP) said, "U.S. scholars and publishers ... are confronting a serious threat to their First Amendment rights to select, process, and publish information materials from all over the world." On Jan. 24, AAP released a legal analysis of OFAC activities in which Allan Adler and Marc Brodsky argue that the "world looks to the U.S. and its publishers as the chief facilitators and defenders of the free flow of information and ideas."

According to the AAP legal analysis, central to the debate are the interpretive rulings made by OFAC to implement trade embargoes that were ordered by President Bush pursuant to the International Emergency Economic Powers Act (IEEPA). These rulings specifically dealt with OFAC's regulations for Iran, but they are being applied to all embargoed countries, including Cuba and Sudan. AAP contends that OFAC is interpreting the clause "restricting the importation and exportation of informational materials" in ways that are contrary to the language and intent of the relevant Executive Orders and, more importantly, contrary to the legislation that authorizes and prescribes the permissible scope of such embargoes.

IEEE's Response

IEEE has been at the center of this storm for 2 years. For its compliance with OFAC, the organization has found itself under increasing scrutiny from its own membership and from other professional societies. Almost 3,000 IEEE members recently signed an online petition that says, "Your decision to ban any form of publication, participation, and contribution by Cuban, Iranian, Libyan, and Sudanese professors and students is a source of disrespect to all of those from these countries who contribute to your standards and publications as well as the whole academic community in general and all electrical and electronics engineers around the world."

IEEE responded to this petition in February, arguing that it was working with other professional societies on this matter and had initiated a meeting with OFAC and publishers to resolve these issues. IEEE president Arthur Winston urged the petition signers to redirect their efforts to regulators in the U.S. government who "as yet have shown us that they have a full appreciation of the unintended consequences of these rules and regulations on millions of technical professionals and businesses worldwide."

The invitation-only IEEE/OFAC meeting took place Feb. 9 in Washington, D.C. Sixty representatives from 30 not-for-profit and commercial scholarly publishers attended. In his opening remarks, Winston said: "Today, the OFAC restrictions raise many important issues about academic freedom. …