Next message: Declan McCullagh: "[Politech] Peter Suber's list of references of Fed pressure on publishers [fs]"
-------- Original Message --------
Subject: RE: [Politech] Feds warn IEEE editors of criminal prosecution re: Iran
articles [fs]
Date: Tue, 2 Mar 2004 10:20:08 -0500
From: Tom Lipscomb <tomlipscomb@private>
Reply-To: <tomlipscomb@private>
To: 'Declan McCullagh' <declan@private>
Declan--
The way to deal with this kind of insanity is to put an alliance together
between organizations of right and left, from the AAAS, IEEE, and the
American Library Association, to the American Association of Publishers;
University Presses, and even PEN, the writer's organization which does such
great work in translation, informing DOJ that they were going to ignore this
unconstitutional attempt at regulation under the guise of "trading with the
enemy," and giving an easy address to accept the government suit.
Administrations of both parties have been expanding police powers to the
extent that every incorporated village in the country has a SWAT team and is
shopping for its own tank.
If we don't embarrass Government bureaucrats with a headlong attack with
maximum publicity, it will take 20 years to unwind the tangles of regulatory
stupidity we will be caught in... and the country will be no more secure and
might well suffer from the lack of what might be some interesting
intellectual offerings.
Thomas H. Lipscomb
Founder of Times Books
-------- Original Message --------
Subject: Re: [Politech] Feds warn IEEE editors of criminal prosecution re: Iran
articles [fs]
Date: Tue, 2 Mar 2004 10:55:05 -0500
From: Howard C. Berkowitz <hcb@private>
To: Declan McCullagh <declan@private>
References: <40448FEA.6060106@private>
This is especially ironic, when one considers the key insight into
Stealth technology came from a Soviet theoretical journal received in
the US. There have been reports of Soviet physicists deliberately
leaking details of their thermonuclear weapons by describing a
certain set of stellar conditions, which in reality would only exist
in the early stages of an H-bomb.
-------- Original Message --------
Subject: Re: [Politech] Feds warn IEEE editors of criminal prosecution re: Iran
articles [fs]
Date: Tue, 2 Mar 2004 10:46:15 -0500 (EST)
From: Stormwalker <bruen@private>
Reply-To: bruen@private
To: Declan McCullagh <declan@private>
Hi Declan,
I was in Washington DC's Dulles International Airport on Sunday where
there was an AirIran airplane at a gate. Whys is it okay for an
Iran airline to land in our nation's capital if there is a trade embargo
in place? Seems a bit worse than editing an journal article.
cheers,
bob bruen
attached mail follows:
-------- Original Message --------
Subject: Treasury Department Is Warning Publishers of the Perils of Criminal
Editing of the Enemy
Date: Sat, 28 Feb 2004 07:49:36 -0500
From: Chuck Mauthe <cmauthe@private>
To: 'Politech' <declan@private>
http://www.nytimes.com/2004/02/28/national/28PUBL.html?th=&pagewanted=print&
position=
February 28, 2004
Treasury Department Is Warning Publishers of the Perils of Criminal Editing
of the Enemy
By ADAM LIPTAK
Writers often grumble about the criminal things editors do to their prose.
The federal government has recently weighed in on the same issue —
literally.
It has warned publishers they may face grave legal consequences for editing
manuscripts from Iran and other disfavored nations, on the ground that such
tinkering amounts to trading with the enemy.
Anyone who publishes material from a country under a trade embargo is
forbidden to reorder paragraphs or sentences, correct syntax or grammar, or
replace "inappropriate words," according to several advisory letters from
the Treasury Department in recent months.
[...]
---
Subject: [Fwd: Gov't Enforced Rules Harm IEEE Editing Practices]
Date: Mon, 01 Mar 2004 02:47:23 -0800
From: Robert Schlesinger <mathtech@private>
To: Declan McCullagh <Declan@private>
Dear Declan,
This may interest you and your readers.
Besr regards,
Robert Schlesinger
---
Date: Mon, 01 Mar 2004 02:29:09 -0800
From: Robert Schlesinger <mathtech@private>
To: Econophysics Research Group <mathtech@private>
Subject: Gov't Enforced Rules Harm IEEE Editing Practices
Dear Friends,
Attached find a set of recent articles from the IEEE, regarding a
frightening form of scholarly censorship enforced by the U.S.
government, that should concern us all. I have served as an editor of
a couple of scholarly periodicals, and have served as a referee to some
scholarly periodicals. Many outsiders don't realize how much pure and
applied science originates from Iran. One prominent mathematics
periodical that I refereed for, FUZZY SETS AND SYSTEMS, was founded by
Iranian mathematician/electrical engineer Lofti Zadeh, now of UCB and
the discoverer of fuzzy mathematics. Many of the submissions for FSS,
supra, were from foreign mathematicians and their manuscripts required
editing prior to publication in English. As I recall, a couple of
years ago, a winner of the International Physics Olympiads was an
Iranian student, and this wasn't their first time winning. Well, this
government rule is petty and short-sighted, and only promotes ill will
between two countries that should be mending their fences rather than
further isolating themselves.
Best regards,
Robert Schlesinger
Will U.S. Sanctions Have Chilling Effect on Scholarly Publishing?
By Jean Kumagai
Treasury Department ruling puts IEEE on the spot, but could affect
other
groups, too
15 October 2003—On 30 September, the U.S. Treasury Department
(Washington, D.C.) informed the Institute of Electrical and Electronics
Engineers (IEEE) that it must continue to limit members’ rights in four
countries embargoed by the United States: Cuba, Iran, Libya, and Sudan.
The ruling means, among other things, that the IEEE, the world’s largest
engineering association (and the publisher of this magazine), cannot
edit articles submitted by authors in those countries, making it
effectively impossible for most such work to appear in IEEE
publications.
If IEEE wishes to edit and publish the work, the Treasury
Department informed IEEE, it will need to apply for a special license.
That ruling could in turn have far-reaching consequences for hundreds of
other U.S.-based scholarly publishers and professional organizations.
For nearly two years, IEEE has been negotiating with the Treasury
Department’s Office of Foreign Assets Control (OFAC), a powerful
division charged with enforcing U.S. sanctions on embargoed countries.
The trouble began in summer 2001, when a bank flagged an attempted
transaction between IEEE and an institution in Iran; this prompted IEEE
to investigate the OFAC regulations. When it determined that members in
Iran and other embargoed countries were indeed subject to sanctions, the
organization’s leadership decided it had no choice but to
comply—feeling, indeed, that failure to comply would be unethical. But
that course of action has exposed IEEE to protests from IEEE members
concerned about fairness and free speech, the indignation of members in
sanctioned countries, and adverse press coverage.
In an open letter published in the October issue of IEEE Spectrum,
IEEE President Michael S. Adler addressed those concerns [see "On
Serving Members in Embargoed Countries," p. 7]. Now, referring to the
OFAC ruling of 30 September, Adler says he’s encouraged because it opens
the door for IEEE to obtain licenses to be exempted from the normal
rules.
In the meantime, however, IEEE members in the four affected
countries are prohibited from being elevated to a higher-grade
membership; using IEEE e-mail alias and Web accounts; accessing online
job listings; and conducting conferences under the IEEE name [see
"Services in Dispute," p. 15]. They still receive printed journals and
other publications. In January 2002, when the IEEE first imposed its
restrictions, it had over 1700 members in the embargoed countries,
nearly all of them in Iran; only about 200 are still members. IEEE has
about 380 000 members worldwide.
"Everyone at IEEE, top to bottom, is unhappy about the situation,"
says Adler. "We’ll do whatever it takes, for as long as it takes, to get
these issues resolved."
IEEE’s situation
Although the IEEE is drawing heat for observing the sanctions, in
fact the rules would apply to any professional society having exchanges
with embargoed countries. An informal survey of a half-dozen other
science and engineering organizations found wide variation in their
compliance, and familiarity, with the sanctions. For example, one group
refused to send any publications to embargoed countries but did allow
researchers living there to publish in its journals. Another group said
it placed no restrictions on members living in embargoed countries, but
its online membership form did not allow Libya or Cuba to be selected as
one’s country of residence.
"OFAC’s authority is extraordinary, because it is grounded in
presidential authority and
national security…they’ve got remarkably broad discretion." — Wynn H.
Segall
At the moment, though, IEEE is having to negotiate a tricky course
with the Treasury
Department, and it finds itself dealing with a formidable interlocutor.
Created during the Korean War to freeze Chinese and North Korean assets,
OFAC now has an annual budget of US $22 million and a staff of about
130. Sanctions imposed by OFAC are extremely broad and can be
difficult to interpret, according toWynn H. Segall, a partner with Akin
Gump Strauss Hauer & Feld LLP (Washington, D.C.) and an expert on
international trade. In general, exports of "goods, technology, and
services" to embargoed countries are severely restricted, although the
particulars differ from country to country. "There is a complete and
universal ban on engaging in any kind of activity with an embargoed
party or country, unless some exception has been provided," Segall says.
OFAC issues exemptions in the form of a license, on a case-by-case
basis; presidential or legislative actions can also create exemptions.
For example, the so-called Berman Amendment of 1994 provided for the
export of "information and informational material," which is why the
IEEE can still send journals to Iran and other embargoed countries.
Running afoul of the sanctions can bring fines of up to $10 million
and even prison terms. "If you get it wrong, even if you think you acted
in good faith, you can be found liable," Segall says. OFAC can and
does penalize not just organizations but individuals within those
organizations, and private citizens. "OFAC’s authority is extraordinary,
because it is grounded in presidential authority and national security,"
Segall says. "Compared to other police agencies in the federal
government, they’ve got remarkably broad discretion and authority."
Although some of the sanctions, like those against Cuba, are
long-standing, concerns about national security after 9/11 raised their
profile anew. "The USA Patriot Act and subsequent regulations placed a
greater burden for compliance on the private sector," Segall says.
Where the trouble began
Ironically, IEEE became aware of OFAC just before 9/11. IEEE staff
were first alerted when the organization tried to pay for expenses
related to the International Symposium on
Telecommunications, a meeting that IEEE cosponsored in Tehran in the
summer of 2001. "Our bank notified us—‘Do you realize this isn’t
allowed?’—and we started looking at the regulations carefully," Adler
recalls.
IEEE rejected a court challenge as too time-consuming and costly,
according to Adler. Members affected by the new restrictions were
informed of them in a letter sent in early 2002. At the same time, the
editors in chief of IEEE’s technical journals were told that manuscripts
having at least one author from an embargoed country could no longer be
edited; if reviewers deemed a manuscript publishable in its original
form, though, it could be formatted before appearing in print.
"We’ve been working with OFAC to better understand what services we
can still provide," Adler says. "But [OFAC] drew the line very
explicitly on editing." In his letter to IEEE, OFAC director R. Richard
Newcomb stated that "U.S. persons may not provide the Iranian author
substantive or artistic alterations or enhancement of the manuscript,
and IEEE may not facilitate the provision of such alterations or
enhancements." Such enhancements include "reordering of paragraphs or
sentences, correction of syntax or grammar, and replacement of
inappropriate words."
Not surprisingly, journal editors have been "nearly unanimously
opposed" to the new rules, says Douglas Verret, editor in chief of IEEE
Transactions on Electron Devices. "It’s a serious damper on intellectual
enterprise," says Verret. "And it doesn’t achieve the purpose for which
it’s intended—to make the U.S. more secure against terrorism. Logically,
it should be the other way around. We should publish everything they
know, and not publish what we know." Nevertheless, says Verret, he has
complied with the rules. His journal carried two papers by Iranian
researchers this year, only because "the manuscripts came in in pretty
good shape."
IEEE members, particularly those in or from Iran, also expressed
outrage. A petition circulated by a U.S.-based alumni group called the
Sharif University of Technology Association garnered over 1200
signatures. Noting that a large number of the Sharif association also
are members, senior members, and fellows of the IEEE and hold key
positions in industry and academia, the petition complained that IEEE’s
actions were "in direct violation of its code of ethics, vision,
mission, and constitution."
"From the Iranian point of view, the notion of being a restricted
member flies in the face of their pride in being an IEEE member," says
one person familiar with the controversy. "Membership is a symbol of
status. And then suddenly they’re told they’re no longer part of the
IEEE family. I can sympathize."
The fundamental question, says Verret, is how the IEEE can remain
an international organization when it has to exclude or single out for
special treatment certain nationalities. "Will we be forced to relocate
overseas? Become a U.S.-only organization? It could force major changes
in the charter of IEEE," he says.
What’s ahead for IEEE, others?
In September 2002, IEEE leaders met with OFAC representatives to
lay out how the sanctions were affecting its services to members. Three
months later, IEEE sent a request seeking guidance from OFAC as to
whether or not its publishing activities complied with existing
sanctions. The recent ruling responds in part to that request, and it
suggested that IEEE apply for a license to exempt manuscript editing. At
press time, IEEE had just submitted its application but had not yet
received a verdict. The fact that OFAC took 10 months to respond is
not surprising, says attorney Segall. "When you ask them for
interpretative guidance, that often raises fundamental questions of
policy that fall beyond OFAC’s mandate. As a practical matter, when the
sanctions regulations are ambiguous, it is generally better to apply for
a specific license. Then they can just say yes or no or ssue a ‘no
action’ letter, indicating that the activity in question fits into an
existing exemption."
If IEEE does get the nod from OFAC that manuscript editing is
permitted, it won’t necessarily mean that other organizations are free
to do the same, Segall added. One of his firm’s clients, whom he
declined to name, was told by OFAC that academic institutions in Iran
were allowed Internet access to publicly available scientific databases
under certain circumstances. But, he warns, such rulings carry no
"precedential authority"—they are specific to an organization and a
particular set of facts. "Those who proceed on the basis of their own
interpretation of the rules, without OFAC guidance, do so at their own
risk," Segall says.
In other words, other U.S. scholarly organizations that plan to
publish papers by researchers in Iran, Cuba, and the like will need to
seek their own OFAC exemption.
Services in Dispute
Access to editorial services related to publishing in
journals
Access to Web and e-mail alias accounts, online job listings
Discounts on meeting registration fees
Eligibility for awards and elevation of membership
Use of IEEE logo and name to promote meetings and other
activities
http://www.spectrum.ieee.org/WEBONLY/wonews/oct03/1003ofac.html
*********************************
IEEE Posts Policy for Handling of Manuscripts from Authors in Embargoed
Countries
Recently, some articles on OFAC restrictions on
publishing have contained inaccuracies about IEEE’s publishing policy.
Here is IEEE’s policy for handling of manuscripts from authors in
embargoed countries. This policy is based on the ruling IEEE received
from OFAC on 30 Sept 2003.
The following activities MAY be done:
Authors residing in Iran may submit their
manuscripts to the IEEE.
IEEE may send manuscripts written by authors
residing in Iran to our member volunteers for peer review and comments
or questions (no matter where they are located).
IEEE editors may collect the peer reviewer comments
and communicate those comments or questions on those manuscripts to
authors residing in Iran.
IEEE is free to publish such papers, once they pass
peer-review, but no editing may been done on these papers. (Editors may
consider adding a footnote to those papers noting that they were not
edited.)
Until further notice, the following is still NOT
allowed:
IEEE reviewers and IEEE editors (both volunteer and
staff) may NOT do any editing or otherwise revise manuscripts written by
authors residing in Iran. Editing of manuscripts submitted by persons in
Iran or another embargoed country includes activities such as the
reordering of paragraph or sentences, correction of syntax, grammar and
the replacement of inappropriate words prior to publication. OFAC says
this is prohibited unless specifically licensed. IEEE has provided
additional information and requested that OFAC reconsider this ruling
and declare our copy and style editing exempt. We have also
requested a license if the activity is not ruled exempt.
In working with these papers it is important to note
that it doesn't matter where the reviewers or editors are located when
applying these rules. OFAC says that since they are acting on behalf of
an entity located in the US, they are all subject to OFAC restrictions.
IEEE continues to work to remove the remaining
restrictions on our scholarly publishing process.
**********************
Another set of articles from the IEEE web site:
IEEE & OFAC - Information Update
Here is information on the IEEE compliance with the
regulations of the United States Department of the Treasury’s Office of
Foreign Assets Control (OFAC).
In January 2002, IEEE informed members residing in
Cuba, Iran, Libya and Sudan -- countries sanctioned by OFAC -- that,
because of OFAC regulations, those members would not be able to take
advantage of member benefits and services except for print subscriptions
to IEEE publications. Certain aspects of editing of papers and
manuscripts submitted to IEEE publicatins (please see Q&A below) also
were affected by these regulations. After many months of discussions and
providing information to OFAC, on 30 Sept. 2003, OFAC informed IEEE that
some of the activities are entirely "exempt" from the Iranian embargo
rules. On 6 Oct. 2003, IEEE applied to OFAC for a license to resume the
normal paper submission process, which allows anyone an opportunity to
submit articles
to IEEE publications and have those papers go through the normal editing
process. As of Dec. 22, IEEE has not yet received a ruling on its
license request.
IEEE Posts Policy for Handling of Manuscripts from
Authors in Embargoed Countries
Recently, some articles on OFAC restrictions on
publishing have contained inaccuracies about IEEE’s publishing policy.
Here is IEEE’s policy for handling of manuscripts from authors in
embargoed countries. This policy is based on the ruling IEEE received
from OFAC on 30 Sept 2003. (more)
News Update:
OFAC Licensing Chief Addresses IEEE Summit of
Scholarly Publishers
Washington, D.C., 11 Feb – In a meeting initiated by
the IEEE, scholarly publishing leaders discussed critical issues about
restrictions on articles submitted by authors in embargoed countries
with a representative from the U.S. Department of Treasury’s Office of
Foreign Assets Control. The meeting was held on Monday, 9 February in
Washington D.C. (more)
Members' Petition on OFAC Prompts Response from
President Winston
3 Feb. 2004 -- Members of the IEEE Control System
Society initiated a petition in December 2003 in reaction to the IEEE
Board of Directors' response to the OFAC regulations. The email
summarized the motivation for the group's actions as being that "many
IEEE members are deeply concerned about preserving the international
nature of the IEEE." The IEEE Board members also are deeply concerned
with the impact of the OFAC regulations on its members and the
engineering and scientific community at large. Here is a PDF copy of the
response sent to the originator of the petition by 2004 IEEE President
Arthur Winston.
IEEE to Hold OFAC Regulations Summit
23 Dec. 2003 -- IEEE is taking a leading role to
help other scholarly publishers understand its experience with OFAC
regulations at a special summit of scientific, technical and medical
publishing organizations that will be held on 9 February in Washington,
D. C. IEEE also hopes this event will help determine if there is a
natural coalition of such organizations that could collectively address
with the U.S. government the impact of the
restrictions on the scientific community in the United States and
abroad. This meeting is by invitation only.
In the News
15 Oct. 2003 -- IEEE Spectrum Magazine Reports: Will
U.S. Sanctions Have a Chilling Effect on Scholarly Publishing?
3 Oct. 2003 -- OFAC Rules IEEE Needs License for
Editing Papers from Authors in Embargoed Countries
1 Oct. 2003 -- Letter from 2003 IEEE Pres. Mike
Adler in IEEE Spectrum Magazine
1 May 2002 -- 2002 Pres. Findlay Responds to Member
Inquiries about OFAC in The Institute
Some recent questions and answers:
--What is the purpose of the OFAC license for
editing?
--How did "editing" qualify as a "service" under
the OFAC restrictions?
--Why isn't providing Iranian members with print
subscriptions considered a service if providing them electronic access
is?
--Why is the OFAC ruling on 30 Sept. such a big step
forward in resolving the difficult issues imposed by the OFAC
regulations?
Q:
What is the purpose of the OFAC license for
editing?
A:
To understand the license being sought by
IEEE, it is first necessary to understand that IEEE has just persuaded
the Office of Foreign Assets Control (OFAC) that most of IEEE's
editorial process for submission and processing of manuscripts is
actually "exempt" from any regulation by OFAC under its embargo rules
and thus does not require any license whatsoever. In its September 30
letter to IEEE, OFAC confirmed that all of the following activities are
entirely "exempt" from the Iranian embargo rules, exactly as IEEE has
argued for several months:
authors residing in Iran are free to submit their
manuscripts to the IEEE;
IEEE is free to send Iranian-origin manuscripts to our
member volunteers for peer review and comments or questions;
our IEEE member volunteers, as peer reviewers, are free
to communicate their
comments or questions on those manuscripts directly to authors residing
in Iran;
IEEE is free to facilitate this dialog between peer
reviewers and authors residing in Iran, as long as these communications
are not of the type prohibited by OFAC; and
IEEE is free to publish such Iranian-origin papers
(including any author-incorporated comments from the peer reviewers), as
long as IEEE does not itself edit or revise the manuscripts for the
authors residing in Iran or direct their editing or revision.
In light of these OFAC rulings, IEEE is applying for a
license solely to deal with the
editing and revision of submitted manuscripts from authors who reside in
Iran (and,
presumably, in other embargoed countries), which OFAC still deems a
"service" to such persons. The editing and revision process is a vital
step in peer reviewed journals, and IEEE wants to handle manuscripts
submitted from authors residing in Iran (or any other embargoed
countries) in exactly the same manner that it treats manuscripts from
authors in any other jurisdictions. For that reason -- that is, to
ensure uniform and non-discriminatory treatment of all authors -- IEEE
is seeking OFAC permission to edit and revise manuscripts from such
authors in exactly the same way it would treat papers received from
authors in any other countries.
IEEE is seeking a kind of license that would
grant a blanket permission to handle specific situations in a generic
way, and, if such a license is granted to IEEE, IEEE expects there will
NOT be any individual specific notice to or permission from OFAC (which
is in the Treasury Department) before any particular article is to be
accepted and published. As noted above in the activities that OFAC has
declared "exempt," OFAC has ruled that it has no legal power to bar the
submission of manuscripts to IEEE from authors residing in Iran or to
block their publication by IEEE.
Q:
How did "editing" qualify as a service under
the OFAC restrictions?
A:
This position comes from repeated statements
by OFAC in its discussions with IEEE, and it has just been reiterated by
OFAC in its September 30 ruling sent to IEEE. However, IEEE has argued
AGAINST this position very strenuously for more than a year and, at
present, is still discussing that aspect of the ruling with OFAC staff.
Why isn't providing Iranian members with print subscriptions considered
a service if providing them electronic access is?
Q:
Why isn't providing Iranian members with
print subscriptions considered a service if providing them electronic
access is?
A:
To understand "electronic access" within the
IEEE information technology system, one has to understand that, at
present, IEEE members receive ALL services available on-line from IEEE
by means of a "web account." IEEE has no means to separate out
"publications services" from all the other services offered through a
member's web account, such as discounts on conference fees, job search
services, and support for organizing conferences.
The OFAC rules bar U.S. persons from providing
"services" to persons residing in Iran, but they do not bar providing
publications, either in print or electronically. In fact, the OFAC
rules make clear that "publications" are a form of "information" and, as
such, are "exempt" from regulation by OFAC under its embargo rules. To
illustrate this point, IEEE sends CDs and DVDs of its publications to
persons residing in Iran, just as it sends printed materials topersons
residing in Iran.
Thus, it is not electronic access to or
provision of publications per se that is the heart of IEEE's difficulty
here. As IEEE's IT system is currently configured, to offer electronic
accessto publications to persons residing in Iran through a web account,
IEEE would then also be offering all its other services -- which are NOT
"exempt" from the OFAC rules because they are not just forms of
information -- to those same persons in Iran, and doing so could violate
U.S. law. To prevent that broader potential violation of law, IEEE has
taken an interim step to suspend all IEEE web accounts for members
residing in Iran.
However, IEEE does not believe this is a
satisfactory situation for its Iranian members, and so IEEE is exploring
ways to alter its IT system to enable persons residing in Iran to have
special, more limited web accounts that would enable them full access to
IEEE publications but that would not be able to access IEEE's other
non-exempt services. In the meantime, because IEEE can and does provide
printed, CD and DVD access to all of the same material, IEEE believes
that no member in Iran is being denied access as such to that
information. If and when IEEE's IT system can be so modified, then
members in Iran will also have restored full electronic access to these
materials as well as access through printed, CD and DVD formats which we
continue to provide.
Q:
Why is the OFAC ruling on 30 Sept. such a big
step forward in resolving the difficult issues imposed by the OFAC
regulations?
A:
As noted above, IEEE has just secured a
formal, written confirmation from OFAC that the vast bulk of its
procedures for handling manuscripts from authors in Iran is actually
totally "exempt" from federal regulation by OFAC. That is a position
that has never been officially acknowledged before and that has no legal
precedent, to IEEE's knowledge, and it is a position that will benefit
IEEE and its entire membership, including its members in Iran and
possibly in other embargoed countries. (Other scholarly organizations
in the United States who may be similarly situated.) Moreover, the
September 30 ruling OFAC requires only that editing and revision
activities be subject to OFAC licensing and also indicates an explicit
willingness to grant a license to cover such activities. If IEEE
obtains a license for the editing and revising process that is
prohibited by OFAC, then IEEE will have secured a result that would mean
non-discriminatory treatment of all authors, world-wide, without regard
to OFAC's national embargo rules. For these reasons, Michael Adler (not
"Alder"), IEEE's 2003 president, believes the September 30 ruling is
both a significant achievement in its own right and a good sign that the
few remaining issues can be resolved promptly with OFAC in a manner that
will be entirely consistent with IEEE's long tradition of open,
unfettered international scholarly exchange.
IEEE News Briefs on OFAC
OFAC Rules IEEE Needs License for Editing Papers
from Authors in Embargoed Countries
3 Oct 2003 -- The IEEE has learned from OFAC this
week that some of IEEE’s activities relating to publishing papers from
authors residing in Iran are allowed under current regulations,
including submitting papers for review.
However OFAC has confirmed that other elements of
the editing process are prohibited and would require a license. OFAC
has asked IEEE to submit additional information to support its request
for a license. OFAC also indicated it will expedite our license
request. IEEE has immediately responded to the license request, and
will resume the editing process for all papers in question at the moment
the license is granted. In the meantime, the IEEE is continuing to
pursue resolution of several other issues resulting from the OFAC
regulations.
“We are encouraged by this decision,” says Michael
S. Adler, IEEE President. “IEEE has always been committed to preserving
the rights of its members and of the scientific and technical community
worldwide to engage in open scholarly research and communications. This
(OFAC ruling) is a big step forward in resolving the difficult issues
imposed by the OFAC regulations.”
In its October issue, IEEE Spectrum has published an
open letter to Members from President Adler to explain IEEE’s position
and actions regarding the U.S. Treasury’s restrictions on serving
members in embargoed countries. This letter is also available online at
www.ieee.org/openletter. Read the communication from OFAC.
attached mail follows:
Dear Friends,
Attached find a set of recent articles from the IEEE, regarding a
frightening form of scholarly censorship enforced by the U.S.
government, that should concern us all. I have served as an editor of
a couple of scholarly periodicals, and have served as a referee to some
scholarly periodicals. Many outsiders don't realize how much pure and
applied science originates from Iran. One prominent mathematics
periodical that I refereed for, FUZZY SETS AND SYSTEMS, was founded by
Iranian mathematician/electrical engineer Lofti Zadeh, now of UCB and
the discoverer of fuzzy mathematics. Many of the submissions for FSS,
supra, were from foreign mathematicians and their manuscripts required
editing prior to publication in English. As I recall, a couple of
years ago, a winner of the International Physics Olympiads was an
Iranian student, and this wasn't their first time winning. Well, this
government rule is petty and short-sighted, and only promotes ill will
between two countries that should be mending their fences rather than
further isolating themselves.
Best regards,
Robert Schlesinger
Will U.S. Sanctions Have Chilling Effect on Scholarly Publishing?
By Jean Kumagai
Treasury Department ruling puts IEEE on the spot, but could affect
other
groups, too
15 October 2003—On 30 September, the U.S. Treasury Department
(Washington, D.C.) informed the Institute of Electrical and Electronics
Engineers (IEEE) that it must continue to limit members’ rights in four
countries embargoed by the United States: Cuba, Iran, Libya, and Sudan.
The ruling means, among other things, that the IEEE, the world’s largest
engineering association (and the publisher of this magazine), cannot
edit articles submitted by authors in those countries, making it
effectively impossible for most such work to appear in IEEE
publications.
If IEEE wishes to edit and publish the work, the Treasury
Department informed IEEE, it will need to apply for a special license.
That ruling could in turn have far-reaching consequences for hundreds of
other U.S.-based scholarly publishers and professional organizations.
For nearly two years, IEEE has been negotiating with the Treasury
Department’s Office of Foreign Assets Control (OFAC), a powerful
division charged with enforcing U.S. sanctions on embargoed countries.
The trouble began in summer 2001, when a bank flagged an attempted
transaction between IEEE and an institution in Iran; this prompted IEEE
to investigate the OFAC regulations. When it determined that members in
Iran and other embargoed countries were indeed subject to sanctions, the
organization’s leadership decided it had no choice but to
comply—feeling, indeed, that failure to comply would be unethical. But
that course of action has exposed IEEE to protests from IEEE members
concerned about fairness and free speech, the indignation of members in
sanctioned countries, and adverse press coverage.
In an open letter published in the October issue of IEEE Spectrum,
IEEE President Michael S. Adler addressed those concerns [see "On
Serving Members in Embargoed Countries," p. 7]. Now, referring to the
OFAC ruling of 30 September, Adler says he’s encouraged because it opens
the door for IEEE to obtain licenses to be exempted from the normal
rules.
In the meantime, however, IEEE members in the four affected
countries are prohibited from being elevated to a higher-grade
membership; using IEEE e-mail alias and Web accounts; accessing online
job listings; and conducting conferences under the IEEE name [see
"Services in Dispute," p. 15]. They still receive printed journals and
other publications. In January 2002, when the IEEE first imposed its
restrictions, it had over 1700 members in the embargoed countries,
nearly all of them in Iran; only about 200 are still members. IEEE has
about 380 000 members worldwide.
"Everyone at IEEE, top to bottom, is unhappy about the situation,"
says Adler. "We’ll do whatever it takes, for as long as it takes, to get
these issues resolved."
IEEE’s situation
Although the IEEE is drawing heat for observing the sanctions, in
fact the rules would apply to any professional society having exchanges
with embargoed countries. An informal survey of a half-dozen other
science and engineering organizations found wide variation in their
compliance, and familiarity, with the sanctions. For example, one group
refused to send any publications to embargoed countries but did allow
researchers living there to publish in its journals. Another group said
it placed no restrictions on members living in embargoed countries, but
its online membership form did not allow Libya or Cuba to be selected as
one’s country of residence.
"OFAC’s authority is extraordinary, because it is grounded in
presidential authority and
national security…they’ve got remarkably broad discretion." — Wynn H.
Segall
At the moment, though, IEEE is having to negotiate a tricky course
with the Treasury
Department, and it finds itself dealing with a formidable interlocutor.
Created during the Korean War to freeze Chinese and North Korean assets,
OFAC now has an annual budget of US $22 million and a staff of about
130. Sanctions imposed by OFAC are extremely broad and can be
difficult to interpret, according toWynn H. Segall, a partner with Akin
Gump Strauss Hauer & Feld LLP (Washington, D.C.) and an expert on
international trade. In general, exports of "goods, technology, and
services" to embargoed countries are severely restricted, although the
particulars differ from country to country. "There is a complete and
universal ban on engaging in any kind of activity with an embargoed
party or country, unless some exception has been provided," Segall says.
OFAC issues exemptions in the form of a license, on a case-by-case
basis; presidential or legislative actions can also create exemptions.
For example, the so-called Berman Amendment of 1994 provided for the
export of "information and informational material," which is why the
IEEE can still send journals to Iran and other embargoed countries.
Running afoul of the sanctions can bring fines of up to $10 million
and even prison terms. "If you get it wrong, even if you think you acted
in good faith, you can be found liable," Segall says. OFAC can and
does penalize not just organizations but individuals within those
organizations, and private citizens. "OFAC’s authority is extraordinary,
because it is grounded in presidential authority and national security,"
Segall says. "Compared to other police agencies in the federal
government, they’ve got remarkably broad discretion and authority."
Although some of the sanctions, like those against Cuba, are
long-standing, concerns about national security after 9/11 raised their
profile anew. "The USA Patriot Act and subsequent regulations placed a
greater burden for compliance on the private sector," Segall says.
Where the trouble began
Ironically, IEEE became aware of OFAC just before 9/11. IEEE staff
were first alerted when the organization tried to pay for expenses
related to the International Symposium on
Telecommunications, a meeting that IEEE cosponsored in Tehran in the
summer of 2001. "Our bank notified us—‘Do you realize this isn’t
allowed?’—and we started looking at the regulations carefully," Adler
recalls.
IEEE rejected a court challenge as too time-consuming and costly,
according to Adler. Members affected by the new restrictions were
informed of them in a letter sent in early 2002. At the same time, the
editors in chief of IEEE’s technical journals were told that manuscripts
having at least one author from an embargoed country could no longer be
edited; if reviewers deemed a manuscript publishable in its original
form, though, it could be formatted before appearing in print.
"We’ve been working with OFAC to better understand what services we
can still provide," Adler says. "But [OFAC] drew the line very
explicitly on editing." In his letter to IEEE, OFAC director R. Richard
Newcomb stated that "U.S. persons may not provide the Iranian author
substantive or artistic alterations or enhancement of the manuscript,
and IEEE may not facilitate the provision of such alterations or
enhancements." Such enhancements include "reordering of paragraphs or
sentences, correction of syntax or grammar, and replacement of
inappropriate words."
Not surprisingly, journal editors have been "nearly unanimously
opposed" to the new rules, says Douglas Verret, editor in chief of IEEE
Transactions on Electron Devices. "It’s a serious damper on intellectual
enterprise," says Verret. "And it doesn’t achieve the purpose for which
it’s intended—to make the U.S. more secure against terrorism. Logically,
it should be the other way around. We should publish everything they
know, and not publish what we know." Nevertheless, says Verret, he has
complied with the rules. His journal carried two papers by Iranian
researchers this year, only because "the manuscripts came in in pretty
good shape."
IEEE members, particularly those in or from Iran, also expressed
outrage. A petition circulated by a U.S.-based alumni group called the
Sharif University of Technology Association garnered over 1200
signatures. Noting that a large number of the Sharif association also
are members, senior members, and fellows of the IEEE and hold key
positions in industry and academia, the petition complained that IEEE’s
actions were "in direct violation of its code of ethics, vision,
mission, and constitution."
"From the Iranian point of view, the notion of being a restricted
member flies in the face of their pride in being an IEEE member," says
one person familiar with the controversy. "Membership is a symbol of
status. And then suddenly they’re told they’re no longer part of the
IEEE family. I can sympathize."
The fundamental question, says Verret, is how the IEEE can remain
an international organization when it has to exclude or single out for
special treatment certain nationalities. "Will we be forced to relocate
overseas? Become a U.S.-only organization? It could force major changes
in the charter of IEEE," he says.
What’s ahead for IEEE, others?
In September 2002, IEEE leaders met with OFAC representatives to
lay out how the sanctions were affecting its services to members. Three
months later, IEEE sent a request seeking guidance from OFAC as to
whether or not its publishing activities complied with existing
sanctions. The recent ruling responds in part to that request, and it
suggested that IEEE apply for a license to exempt manuscript editing. At
press time, IEEE had just submitted its application but had not yet
received a verdict. The fact that OFAC took 10 months to respond is
not surprising, says attorney Segall. "When you ask them for
interpretative guidance, that often raises fundamental questions of
policy that fall beyond OFAC’s mandate. As a practical matter, when the
sanctions regulations are ambiguous, it is generally better to apply for
a specific license. Then they can just say yes or no or ssue a ‘no
action’ letter, indicating that the activity in question fits into an
existing exemption."
If IEEE does get the nod from OFAC that manuscript editing is
permitted, it won’t necessarily mean that other organizations are free
to do the same, Segall added. One of his firm’s clients, whom he
declined to name, was told by OFAC that academic institutions in Iran
were allowed Internet access to publicly available scientific databases
under certain circumstances. But, he warns, such rulings carry no
"precedential authority"—they are specific to an organization and a
particular set of facts. "Those who proceed on the basis of their own
interpretation of the rules, without OFAC guidance, do so at their own
risk," Segall says.
In other words, other U.S. scholarly organizations that plan to
publish papers by researchers in Iran, Cuba, and the like will need to
seek their own OFAC exemption.
Services in Dispute
Access to editorial services related to publishing in
journals
Access to Web and e-mail alias accounts, online job listings
Discounts on meeting registration fees
Eligibility for awards and elevation of membership
Use of IEEE logo and name to promote meetings and other
activities
http://www.spectrum.ieee.org/WEBONLY/wonews/oct03/1003ofac.html
*********************************
IEEE Posts Policy for Handling of Manuscripts from Authors in Embargoed
Countries
Recently, some articles on OFAC restrictions on
publishing have contained inaccuracies about IEEE’s publishing policy.
Here is IEEE’s policy for handling of manuscripts from authors in
embargoed countries. This policy is based on the ruling IEEE received
from OFAC on 30 Sept 2003.
The following activities MAY be done:
Authors residing in Iran may submit their
manuscripts to the IEEE.
IEEE may send manuscripts written by authors
residing in Iran to our member volunteers for peer review and comments
or questions (no matter where they are located).
IEEE editors may collect the peer reviewer comments
and communicate those comments or questions on those manuscripts to
authors residing in Iran.
IEEE is free to publish such papers, once they pass
peer-review, but no editing may been done on these papers. (Editors may
consider adding a footnote to those papers noting that they were not
edited.)
Until further notice, the following is still NOT
allowed:
IEEE reviewers and IEEE editors (both volunteer and
staff) may NOT do any editing or otherwise revise manuscripts written by
authors residing in Iran. Editing of manuscripts submitted by persons in
Iran or another embargoed country includes activities such as the
reordering of paragraph or sentences, correction of syntax, grammar and
the replacement of inappropriate words prior to publication. OFAC says
this is prohibited unless specifically licensed. IEEE has provided
additional information and requested that OFAC reconsider this ruling
and declare our copy and style editing exempt. We have also
requested a license if the activity is not ruled exempt.
In working with these papers it is important to note
that it doesn't matter where the reviewers or editors are located when
applying these rules. OFAC says that since they are acting on behalf of
an entity located in the US, they are all subject to OFAC restrictions.
IEEE continues to work to remove the remaining
restrictions on our scholarly publishing process.
**********************
Another set of articles from the IEEE web site:
IEEE & OFAC - Information Update
Here is information on the IEEE compliance with the
regulations of the United States Department of the Treasury’s Office of
Foreign Assets Control (OFAC).
In January 2002, IEEE informed members residing in
Cuba, Iran, Libya and Sudan -- countries sanctioned by OFAC -- that,
because of OFAC regulations, those members would not be able to take
advantage of member benefits and services except for print subscriptions
to IEEE publications. Certain aspects of editing of papers and
manuscripts submitted to IEEE publicatins (please see Q&A below) also
were affected by these regulations. After many months of discussions and
providing information to OFAC, on 30 Sept. 2003, OFAC informed IEEE that
some of the activities are entirely "exempt" from the Iranian embargo
rules. On 6 Oct. 2003, IEEE applied to OFAC for a license to resume the
normal paper submission process, which allows anyone an opportunity to
submit articles
to IEEE publications and have those papers go through the normal editing
process. As of Dec. 22, IEEE has not yet received a ruling on its
license request.
IEEE Posts Policy for Handling of Manuscripts from
Authors in Embargoed Countries
Recently, some articles on OFAC restrictions on
publishing have contained inaccuracies about IEEE’s publishing policy.
Here is IEEE’s policy for handling of manuscripts from authors in
embargoed countries. This policy is based on the ruling IEEE received
from OFAC on 30 Sept 2003. (more)
News Update:
OFAC Licensing Chief Addresses IEEE Summit of
Scholarly Publishers
Washington, D.C., 11 Feb – In a meeting initiated by
the IEEE, scholarly publishing leaders discussed critical issues about
restrictions on articles submitted by authors in embargoed countries
with a representative from the U.S. Department of Treasury’s Office of
Foreign Assets Control. The meeting was held on Monday, 9 February in
Washington D.C. (more)
Members' Petition on OFAC Prompts Response from
President Winston
3 Feb. 2004 -- Members of the IEEE Control System
Society initiated a petition in December 2003 in reaction to the IEEE
Board of Directors' response to the OFAC regulations. The email
summarized the motivation for the group's actions as being that "many
IEEE members are deeply concerned about preserving the international
nature of the IEEE." The IEEE Board members also are deeply concerned
with the impact of the OFAC regulations on its members and the
engineering and scientific community at large. Here is a PDF copy of the
response sent to the originator of the petition by 2004 IEEE President
Arthur Winston.
IEEE to Hold OFAC Regulations Summit
23 Dec. 2003 -- IEEE is taking a leading role to
help other scholarly publishers understand its experience with OFAC
regulations at a special summit of scientific, technical and medical
publishing organizations that will be held on 9 February in Washington,
D. C. IEEE also hopes this event will help determine if there is a
natural coalition of such organizations that could collectively address
with the U.S. government the impact of the
restrictions on the scientific community in the United States and
abroad. This meeting is by invitation only.
In the News
15 Oct. 2003 -- IEEE Spectrum Magazine Reports: Will
U.S. Sanctions Have a Chilling Effect on Scholarly Publishing?
3 Oct. 2003 -- OFAC Rules IEEE Needs License for
Editing Papers from Authors in Embargoed Countries
1 Oct. 2003 -- Letter from 2003 IEEE Pres. Mike
Adler in IEEE Spectrum Magazine
1 May 2002 -- 2002 Pres. Findlay Responds to Member
Inquiries about OFAC in The Institute
Some recent questions and answers:
--What is the purpose of the OFAC license for
editing?
--How did "editing" qualify as a "service" under
the OFAC restrictions?
--Why isn't providing Iranian members with print
subscriptions considered a service if providing them electronic access
is?
--Why is the OFAC ruling on 30 Sept. such a big step
forward in resolving the difficult issues imposed by the OFAC
regulations?
Q:
What is the purpose of the OFAC license for
editing?
A:
To understand the license being sought by
IEEE, it is first necessary to understand that IEEE has just persuaded
the Office of Foreign Assets Control (OFAC) that most of IEEE's
editorial process for submission and processing of manuscripts is
actually "exempt" from any regulation by OFAC under its embargo rules
and thus does not require any license whatsoever. In its September 30
letter to IEEE, OFAC confirmed that all of the following activities are
entirely "exempt" from the Iranian embargo rules, exactly as IEEE has
argued for several months:
authors residing in Iran are free to submit their
manuscripts to the IEEE;
IEEE is free to send Iranian-origin manuscripts to our
member volunteers for peer review and comments or questions;
our IEEE member volunteers, as peer reviewers, are free
to communicate their
comments or questions on those manuscripts directly to authors residing
in Iran;
IEEE is free to facilitate this dialog between peer
reviewers and authors residing in Iran, as long as these communications
are not of the type prohibited by OFAC; and
IEEE is free to publish such Iranian-origin papers
(including any author-incorporated comments from the peer reviewers), as
long as IEEE does not itself edit or revise the manuscripts for the
authors residing in Iran or direct their editing or revision.
In light of these OFAC rulings, IEEE is applying for a
license solely to deal with the
editing and revision of submitted manuscripts from authors who reside in
Iran (and,
presumably, in other embargoed countries), which OFAC still deems a
"service" to such persons. The editing and revision process is a vital
step in peer reviewed journals, and IEEE wants to handle manuscripts
submitted from authors residing in Iran (or any other embargoed
countries) in exactly the same manner that it treats manuscripts from
authors in any other jurisdictions. For that reason -- that is, to
ensure uniform and non-discriminatory treatment of all authors -- IEEE
is seeking OFAC permission to edit and revise manuscripts from such
authors in exactly the same way it would treat papers received from
authors in any other countries.
IEEE is seeking a kind of license that would
grant a blanket permission to handle specific situations in a generic
way, and, if such a license is granted to IEEE, IEEE expects there will
NOT be any individual specific notice to or permission from OFAC (which
is in the Treasury Department) before any particular article is to be
accepted and published. As noted above in the activities that OFAC has
declared "exempt," OFAC has ruled that it has no legal power to bar the
submission of manuscripts to IEEE from authors residing in Iran or to
block their publication by IEEE.
Q:
How did "editing" qualify as a service under
the OFAC restrictions?
A:
This position comes from repeated statements
by OFAC in its discussions with IEEE, and it has just been reiterated by
OFAC in its September 30 ruling sent to IEEE. However, IEEE has argued
AGAINST this position very strenuously for more than a year and, at
present, is still discussing that aspect of the ruling with OFAC staff.
Why isn't providing Iranian members with print subscriptions considered
a service if providing them electronic access is?
Q:
Why isn't providing Iranian members with
print subscriptions considered a service if providing them electronic
access is?
A:
To understand "electronic access" within the
IEEE information technology system, one has to understand that, at
present, IEEE members receive ALL services available on-line from IEEE
by means of a "web account." IEEE has no means to separate out
"publications services" from all the other services offered through a
member's web account, such as discounts on conference fees, job search
services, and support for organizing conferences.
The OFAC rules bar U.S. persons from providing
"services" to persons residing in Iran, but they do not bar providing
publications, either in print or electronically. In fact, the OFAC
rules make clear that "publications" are a form of "information" and, as
such, are "exempt" from regulation by OFAC under its embargo rules. To
illustrate this point, IEEE sends CDs and DVDs of its publications to
persons residing in Iran, just as it sends printed materials topersons
residing in Iran.
Thus, it is not electronic access to or
provision of publications per se that is the heart of IEEE's difficulty
here. As IEEE's IT system is currently configured, to offer electronic
accessto publications to persons residing in Iran through a web account,
IEEE would then also be offering all its other services -- which are NOT
"exempt" from the OFAC rules because they are not just forms of
information -- to those same persons in Iran, and doing so could violate
U.S. law. To prevent that broader potential violation of law, IEEE has
taken an interim step to suspend all IEEE web accounts for members
residing in Iran.
However, IEEE does not believe this is a
satisfactory situation for its Iranian members, and so IEEE is exploring
ways to alter its IT system to enable persons residing in Iran to have
special, more limited web accounts that would enable them full access to
IEEE publications but that would not be able to access IEEE's other
non-exempt services. In the meantime, because IEEE can and does provide
printed, CD and DVD access to all of the same material, IEEE believes
that no member in Iran is being denied access as such to that
information. If and when IEEE's IT system can be so modified, then
members in Iran will also have restored full electronic access to these
materials as well as access through printed, CD and DVD formats which we
continue to provide.
Q:
Why is the OFAC ruling on 30 Sept. such a big
step forward in resolving the difficult issues imposed by the OFAC
regulations?
A:
As noted above, IEEE has just secured a
formal, written confirmation from OFAC that the vast bulk of its
procedures for handling manuscripts from authors in Iran is actually
totally "exempt" from federal regulation by OFAC. That is a position
that has never been officially acknowledged before and that has no legal
precedent, to IEEE's knowledge, and it is a position that will benefit
IEEE and its entire membership, including its members in Iran and
possibly in other embargoed countries. (Other scholarly organizations
in the United States who may be similarly situated.) Moreover, the
September 30 ruling OFAC requires only that editing and revision
activities be subject to OFAC licensing and also indicates an explicit
willingness to grant a license to cover such activities. If IEEE
obtains a license for the editing and revising process that is
prohibited by OFAC, then IEEE will have secured a result that would mean
non-discriminatory treatment of all authors, world-wide, without regard
to OFAC's national embargo rules. For these reasons, Michael Adler (not
"Alder"), IEEE's 2003 president, believes the September 30 ruling is
both a significant achievement in its own right and a good sign that the
few remaining issues can be resolved promptly with OFAC in a manner that
will be entirely consistent with IEEE's long tradition of open,
unfettered international scholarly exchange.
IEEE News Briefs on OFAC
OFAC Rules IEEE Needs License for Editing Papers
from Authors in Embargoed Countries
3 Oct 2003 -- The IEEE has learned from OFAC this
week that some of IEEE’s activities relating to publishing papers from
authors residing in Iran are allowed under current regulations,
including submitting papers for review.
However OFAC has confirmed that other elements of
the editing process are prohibited and would require a license. OFAC
has asked IEEE to submit additional information to support its request
for a license. OFAC also indicated it will expedite our license
request. IEEE has immediately responded to the license request, and
will resume the editing process for all papers in question at the moment
the license is granted. In the meantime, the IEEE is continuing to
pursue resolution of several other issues resulting from the OFAC
regulations.
“We are encouraged by this decision,” says Michael
S. Adler, IEEE President. “IEEE has always been committed to preserving
the rights of its members and of the scientific and technical community
worldwide to engage in open scholarly research and communications. This
(OFAC ruling) is a big step forward in resolving the difficult issues
imposed by the OFAC regulations.”
In its October issue, IEEE Spectrum has published an
open letter to Members from President Adler to explain IEEE’s position
and actions regarding the U.S. Treasury’s restrictions on serving
members in embargoed countries. This letter is also available online at
www.ieee.org/openletter. Read the communication from OFAC.
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