US Government Backs Off From Imposing Restrictions on Publishers

It was an inquiry from the Institute of Electrical and Electronics Engineers more than two years ago that initiated the government’s foray into regulating scholarly publishing. IEEE had attempted to transfer money to pay for a conference venue in Tehran and discovered that such a transfer would violate the International Emergency Economic Powers Act of 1977 (IEEPA). After that, says IEEE President Arthur Winston, the institute “started to inquire. You want to know if you are doing something wrong.”

In the meantime, IEEE continued to send manuscripts from embargoed countries out for peer review but did not edit them; the 30 or so papers from Iran published by the institute over the past year were accepted as is. (Libya and Sudan, along with Iran, are subject to IEEPA, and Cuba is embargoed under the Trading With the Enemy Act of 1917.) IEEE puts out nearly 100 journals.

Although a few other US publishers implemented similar restrictions, most have maintained that editing and publishing fall outside the scope of government regulation. They point to the 1988 Berman Amendment, which exempts from government regulation “information or informational materials.” In March, the amendment’s author, Representative Howard Berman (D-CA), wrote OFAC that its restrictions were “patently absurd” and “clearly inconsistent with both the letter and spirit of the law.”

On the surface, OFAC’s April ruling appears to be a reversal in the government’s position. A senior OFAC official said that peer review and copy- and style editing are covered in the “Berman carve-out” and as such are not under the government’s auspices. Although the ruling was addressed to IEEE, the official said “it is general. It would apply to other similarly situated parties and other parties in the industry.” Says Winston, “We are very happy. It came through the way we wanted. The whole peer-review process can be done without worrying. Effective immediately, IEEE is returning to its normal publishing process for all authors.”

Other publishers, however, are reaching different conclusions. The ruling “leaves many questions unanswered and many First Amendment problems unresolved,” according to a statement issued on 5 April by three nonprofit organizations—the Association of American Publishers (AAP), the Association of American University Presses, and PEN American Center. (The ruling may be downloaded from the Web at http://www.treasury.gov/offices/eotffc/ofac/actions/20040405.html.)

Allan Adler, AAP’s vice president for legal and government affairs, takes issue with, among other things, OFAC’s exclusion from Berman Amendment protection of “informational materials not fully created and in existence at the date of the transaction” and “substantive or artistic alteration or enhancement of the information or informational materials.” What’s more, he says, the ruling “does not in any way protect other publishers whose editing and peer-review processes may be significantly different [from IEEE’s].” Says Marc Brodsky, executive director of the American Institute of Physics and chair of AAP’s division for professional and scholarly publishers, “I would like to think that publishers do enhance what they receive from authors.”

Publishers were also upset that the ruling prohibits collaborations between scientists in the US and embargoed countries. “This is a worry for individual scientists and the scientific community,” says Brodsky.

In effect, says Adler, the ruling asserts the government’s authority over publishing activities—“authority that we believe is denied to it by the Berman Amendment and by the First Amendment’s protection of freedom of the press.” In the coming weeks, he says, AAP and other publishers and professional societies will consider whether to take legal action against the government.

IEEE, too, is left with loose ends. In addition to restricting editing, the institute suspended most benefits to members in sanctioned countries. For example, it discontinued IEEE-issued e-mail addresses, Web access to IEEE’s database, and discounts for attending IEEE conferences. These and other benefits have not been reinstated. IEEE has 360 000 members worldwide. Most of the roughly 1800 in Iran have dropped their memberships.

The measures have angered IEEE members. By the time of the April ruling, more than 5300 IEEE members had signed a petition demanding that the institute “cease discrimination against IEEE members from countries that are embargoed by the US Government.” Michel Gevers of Belgium’s Catholic University of Louvain, who launched the petition, says the ruling is “welcome news,” but adds that he will continue to fight for the restoration of member benefits. “In my view, you cannot be an international organization if you discriminate against members in some countries.”

The ruling is “half a victory,” adds Fredun Hojabri, a former chemistry professor and president of the California-based international alumni association of Iran’s Sharif University of Technology. “I am happy that the specific problem of IEEE publishing has been solved. But instead of admitting a mistake, OFAC has been very specific [in granting permission]. Can other publishers in the US print papers from sanctioned countries? And I am worried that IEEE will use the scary, magic word ‘service’ to continue restricting member benefits.”

“We wanted to get one battle over at a time,” says IEEE President Winston. Member benefits are next, he adds. “If the ball is in our court, we don’t let too much grass grow under it.”