What has been at issue since Sept. 30, 2003 has been the OFAC's interpretation of the International Emergency Economic Powers Act and the Trading with the Enemy Act, which is referred to by OFAC as the Berman Amendment. The OFAC ruling essentially made illegal any type of editorial work being performed on works produced by individuals from embargoed countries. The penalties for violating this ruling could result in a 10-year prison sentence or a $50,000 fine. OFAC sought to require the IEEE to procure a license from OFAC that would allow them to engage in these activities. IEEE suspended editing such works while it actively negotiated with OFAC, only publishing articles that could be accepted "as is" without editing. (See my "Focus on Publishing" columns in the December 2003 and April 2004 issues of Information Today for more information.)

Congressman Howard Berman, author of the Berman Amendment, wrote a letter on March 3 to Richard Newcomb, director of OFAC, calling the September 30 interpretation "patently absurd" and that the "the guidance issued by OFAC…are clearly inconsistent with both the letter and the spirit of the law."

"The reality is reflected in the fact that American publishers of scholarly journals derive a substantial portion from foreign authors," argues Berman. And, the "government should not place publishers in the untenable position" of having to choose between publishing "manuscripts ‘as is' without appropriate peer review or not publishing them at all, even if they have great merit."

For its part, the IEEE declared that it scored a First Amendment victory for freedom of the press and the scholarly publishing community with the ruling. According to the IEEE, the April 2 ruling gives the IEEE full freedom to engage in its peer review and editorial processes without OFAC regulation or licensing.

"Effectively immediately, IEEE is returning to its normal publishing processes for all authors, which has always been the IEEE's goal," said IEEE president Arthur Winston. "This issue has been very difficult for IEEE members worldwide and of great concern to all the engineering, science, and publishing communities, and we believe OFAC's new ruling will be a relief to nearly everyone."

Remaining Unresolved Issues
However, the OFAC letter to the IEEE is clearly directed to the practices of the society, not to scholarly publishing as a whole. At issue are comments such as: "In the peer review process as described, peer reviewers may spot problems in a submitted paper and may advise the paper's author of the nature and extent of those problems, but neither the publisher nor its reviewers substantively rewrite or revise the manuscript for the author." Or, "Based upon our understanding of the peer review process as set forth (in the letter), we conclude that the IEEE's publication of articles does not entail the prohibited exportation of services."

Many do not believe that the debate with OFAC over publishing practices in embargoed countries is over. According to a press release representing the Association of American Publishers (AAP), The Association of American University Presses (AAUP), and PEN American Center issued on April 5 (http://aaupnet.org/news/press/ofac.pdf), the organizations "appreciate the affirmation that "IEEE's peer review and style- and copy-editorial processes are exempt." However, the OFAC letter sent to the IEEE on April 2 "leaves many questions unanswered and many First Amendment problems unresolved."

Of particular concern to these publishers is that, "OFAC continues to insist that statutes passed by Congress explicitly exempting 'informational materials' from the reach of U.S. trade embargoes do not apply to 'information materials not fully created and in existence at the date of the transaction' or to the 'substantive or artistic alteration or enhancement of the information or informational materials.'" And, they argue, that there is nothing in the language of the statues that supports the OFAC interpretation.

According to Allan Adler, vice president for legal and governmental affairs for the AAP, the OFAC rulings do not satisfy the needs and concerns of other AAP members (http://www.publishers.org/hpdocs/Interested_Parties.doc). "While they may address IEEE's concerns for its publications of scientific journals," said Adler, "it is clear that they will not necessarily apply to other publishers—whether of scientific journals or other kinds of 'informational materials'—whose peer review and editorial practices may differ significantly from those explicitly described by IEEE and cited by OFAC as approved."

Adler argues that there are a number of statements in the April 2 OFAC letter to the IEEE that, "clearly imply that OFAC would reach different legal conclusions if confronted with peer review and editing practices that differ from those of IEEE."

AAP, AAUP, and PEN plan to review the matter to determine what further action may be necessary to insure that "OFAC's regulatory programs remained confined … and that publishers are not constrained by fear of prosecution."