OFAC reverses embargo ruling

Decision allows US publishers to edit manuscripts from Cuba, Iran, and Sudan

Dec 16, 2004
John Dudley Miller(johnmiller@nasw.org)

In a reversal of almost all of the controversial prohibitions enacted in September 2003 that led to a lawsuit against it by a coalition of US publishers 3 months ago, the Treasury Department reauthorized American authors and publishers to collaborate with and edit the scientific and other manuscripts of citizens in trade-embargoed countries yesterday (December 15).

The Treasury Department said it acted "to further promote the free flow of information around the world and to ensure the voices of dissidents and others living in Cuba, Iran, and Sudan are heard," according to an anonymous Treasury official speaking through a spokesperson.

But Edward Davis, one of the publishers' attorneys, said yesterday that the publishers are not yet ready to drop their lawsuit, filed September 27, because the Office of Foreign Assets Control (OFAC), by granting a general license, continues to assert that it can regulate informational materials. The plaintiffs argue that OFAC has no such authority.

"I think it's nice that the government has recognized the validity of our position for freedom of speech and freedom of the press," said Marc Brodsky, president of the American Institute of Physics and executive council chair of the American Association of Publishers Professional and Scholarly Publishers Division, one of the plaintiffs. "It's just a shame that we had to spend so much effort and time and money to go to court to get their attention, despite the fact we went to them ahead of time."

In January 2002, the Institute of Electrical and Electronic Engineers (IEEE) stopped publishing manuscripts from embargoed-country scientists after officials at Treasury's Office of Foreign Assets Control (OFAC) told the organization informally that publishing and providing other services to members in embargoed nations might be illegal. In September 2003, it formally banned all editing of IEEE manuscripts, even correcting spelling and punctuation errors.

Last April, OFAC reauthorized IEEE—but not American publishers in general—to edit manuscripts from embargoed nations and to provide some services to them. Cecelia Jankowski, IEEE's managing director of regional activities, welcomed yesterday's ruling, saying, "It further confirms our interpretation of the April ruling that enabled IEEE to resume all publishing activity."

Rep. Howard Berman (D-Calif.), the author of the 1988 congressional "Berman amendment" prohibiting the government from embargoing "any information or informational materials," including publishing, told The Scientist last night from his Van Nuys office that he hasn't yet advised the publishers what do to with their lawsuit because he hasn't seen the new ruling.

"I think it's a significant step forward," Berman said. "The OFAC interpretation of the Berman amendment was both stupid and obnoxious. This makes it a lot less stupid, but at least conceptually, there's something obnoxious about claiming that you have to be licensed. That which they allow by regulation they can take away by regulation."

A treasury spokesperson said yesterday that the new ruling was not a response to the lawsuits. "The Treasury has been considering the issuance of a general license since it was first asked for specific guidance on how its regulations applied to publishing activities," spokesperson Molly Millerwise wrote in an E-mail. But Davis disagreed, telling The Scientist yesterday that the government had asked him for a 1-month delay in the trial so that the department could take action that might make the trial unnecessary. In a November 18 letter to the judge in the case, government lawyer David Jones wrote that the publishers "have consented to this limited extension solely because of the possibility that it could result in a rapid resolution of the matter."

The new ruling is not a complete reversal of OFAC's former policies. It bans Americans from developing and marketing software from embargoed countries, and it forbids Americans to collaborate on manuscripts with embargoed governments.

"What if one of the true reformers in the Iranian Parliament wants to write a book and have it disseminated about the evils of the Mullah rule?" Berman asked. "This person and the American publisher have to go for a specific license for this dissident to write a book, because he happens to hold an elected position in the government? In other words, there are still some flaws here."