US Export Control Rules Applied to Prevent Editing of Scholarly Articles

The US Government's Office of Foreign Assets Control has told the IEEE, publishers of engineering journals that it cannot edit contributions from persons in Cuba, Iran, Libya, or Sudan. This is very hard to understand as anything but a First Amendment violation. Unfortunately, I can't find the primary sources online, and the secondary sources are not as clear as I'd like.

IEEE Web Only News:

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.

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.

…

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.”

Foreign asset controls are designed in part to stop money and services from going to 'bad' regimes. The statutes and regulations I am familar with all contain exemptions for “publications”. From what I can see, the government argues that editing is some sort of prohibited service (or technology export? If so that would open a nice can of worms — a perfect topic for a student's law review note…). Whatever they may call it, I have a lot of trouble imagining a regime that requires journals to get a license to allow them to edit foreigners' submissions as anything other than a classic prior restraint on speech.

Unfortunately, as far as I can tell, neither the IEEE's first note, nor its latest, have the full text of what they received from the Office of Foreign Assets Control (OFAC).

All I could find was the following Q&A on the IEEE web site. It describes what sounds to me like a prior restraint on speech (requiring a license), premised on the theory that editing of scholarly papers is a “service” covered by our export control laws:

Q: What is the purpose of the OFAC license?

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.

I think what bothers me second-most here, after the government's action, is that the IEEE sounds grateful for the chance to apply for a license to speak. Double-plus ungood.