Thursday, July 22
National Association of Science Writers sends letter to US Gov.
From poet and NASW member Matthew Shindell:
NASW rides again
I am proud to say that one of my professional organizations, the National Association of Science Writers, has decided to take action on behalf of the world's truth-seeking journalists.
I received this email yesterday from the NASW listserve:
The NASW will be sending a letter to U.S. government officials protesting visa requirements for foreign journalists.
The letter will be sent to U.S. Customs and Border Protection Commissioner Robert C. Bonner, Secretary of State Colin Powell, Homeland Security chief Tom Ridge and key members of Congress. The Society for Environmental Journalists has agreed to sign on, and other journalism groups are considering doing so.
And the letter reads as follows:
We are writing on behalf of the National Association of Science Writers to express our outrage about the fact that foreign journalists from 27 friendly nations must get visas to enter the United States.
This policy violates one of the central, bedrock values of our free society -- the commitment to a free press, operating without interference from the government. Without this commitment, enshrined in the Bill of Rights, our democracy would surely die. Yet the current policy singles out journalists for discriminatory treatment, implying they are more of a threat than ordinary tourists or business people. While we appreciate the need to secure our borders, we believe this practice is counterproductive and wrong, and should end immediately.
As a practical matter, the visa requirement also puts severe roadblocks in the path of any foreign journalist who wants to work here. According to a spokeswoman for U.S. Customs and Border Protection, the current backlog for processing journalist visa applications is about one to two months; this makes it impossible for anyone to come here on the spur of the moment to cover breaking news. Further, Title 8 of the Code of Federal Regulations, Section 214.2(i), requires foreign journalists to get permission from an immigration official before changing employers or the medium in which they work. This requirement is especially onerous for freelance journalists who may pick up assignments from a variety of employers, and is a completely unacceptable restriction on press freedom.
As things stand today, ordinary citizens from 27 friendly nations can come here to work or vacation for up to 90 days without visas. But journalists from those nations must get special visas, called ³I² visas, before leaving their home countries. Although this requirement has been on the books for some time, it was rarely enforced until after the Sept. 11 attacks. Since then, more than a dozen journalists, most from France or Britain, have been detained, interrogated, body-searched and held in cells -- sometimes in conditions that were uncomfortable and humiliating -- before being sent back to their home countries, all because they lacked visas.
Following an international outcry, U.S. Customs and Border Protection announced in May that port directors will have discretion to allow a journalist from a friendly nation into the United States without a visa, but only once; an ³I² visa is still required for any subsequent trips.
While this change is a step in the right direction, it doesn¹t go far enough. Requiring a special visa raises the appearance -- and, indeed, the possibility -- that U.S. officials could discriminate against journalists whose coverage they perceive to be unfavorable to the government. It puts us in the unsavory company of repressive regimes that restrict the press. And it is bound to alienate people all over the world who look to the United States as a beacon of democracy and free expression. In these dangerous times, it¹s more important than ever to show the world we have the courage to uphold the fundamental rights guaranteed by our Constitution.
We ask that you change the interpretation of the Immigration and Nationality Act to allow journalists from friendly countries to enter the U.S. without visas, on the same basis as their countrymen, and with no restrictions on their work. If that can¹t be done, we ask that you work with Congress to change Section 101(a)(15) I and any other relevant sections of the Immigration and Nationality Act to achieve the same end.
NASW rides again
I am proud to say that one of my professional organizations, the National Association of Science Writers, has decided to take action on behalf of the world's truth-seeking journalists.
I received this email yesterday from the NASW listserve:
The NASW will be sending a letter to U.S. government officials protesting visa requirements for foreign journalists.
The letter will be sent to U.S. Customs and Border Protection Commissioner Robert C. Bonner, Secretary of State Colin Powell, Homeland Security chief Tom Ridge and key members of Congress. The Society for Environmental Journalists has agreed to sign on, and other journalism groups are considering doing so.
And the letter reads as follows:
We are writing on behalf of the National Association of Science Writers to express our outrage about the fact that foreign journalists from 27 friendly nations must get visas to enter the United States.
This policy violates one of the central, bedrock values of our free society -- the commitment to a free press, operating without interference from the government. Without this commitment, enshrined in the Bill of Rights, our democracy would surely die. Yet the current policy singles out journalists for discriminatory treatment, implying they are more of a threat than ordinary tourists or business people. While we appreciate the need to secure our borders, we believe this practice is counterproductive and wrong, and should end immediately.
As a practical matter, the visa requirement also puts severe roadblocks in the path of any foreign journalist who wants to work here. According to a spokeswoman for U.S. Customs and Border Protection, the current backlog for processing journalist visa applications is about one to two months; this makes it impossible for anyone to come here on the spur of the moment to cover breaking news. Further, Title 8 of the Code of Federal Regulations, Section 214.2(i), requires foreign journalists to get permission from an immigration official before changing employers or the medium in which they work. This requirement is especially onerous for freelance journalists who may pick up assignments from a variety of employers, and is a completely unacceptable restriction on press freedom.
As things stand today, ordinary citizens from 27 friendly nations can come here to work or vacation for up to 90 days without visas. But journalists from those nations must get special visas, called ³I² visas, before leaving their home countries. Although this requirement has been on the books for some time, it was rarely enforced until after the Sept. 11 attacks. Since then, more than a dozen journalists, most from France or Britain, have been detained, interrogated, body-searched and held in cells -- sometimes in conditions that were uncomfortable and humiliating -- before being sent back to their home countries, all because they lacked visas.
Following an international outcry, U.S. Customs and Border Protection announced in May that port directors will have discretion to allow a journalist from a friendly nation into the United States without a visa, but only once; an ³I² visa is still required for any subsequent trips.
While this change is a step in the right direction, it doesn¹t go far enough. Requiring a special visa raises the appearance -- and, indeed, the possibility -- that U.S. officials could discriminate against journalists whose coverage they perceive to be unfavorable to the government. It puts us in the unsavory company of repressive regimes that restrict the press. And it is bound to alienate people all over the world who look to the United States as a beacon of democracy and free expression. In these dangerous times, it¹s more important than ever to show the world we have the courage to uphold the fundamental rights guaranteed by our Constitution.
We ask that you change the interpretation of the Immigration and Nationality Act to allow journalists from friendly countries to enter the U.S. without visas, on the same basis as their countrymen, and with no restrictions on their work. If that can¹t be done, we ask that you work with Congress to change Section 101(a)(15) I and any other relevant sections of the Immigration and Nationality Act to achieve the same end.
Wednesday, June 2
Gallery owner in San Francisco attacked for displaying controversial art!
Monday, May 31
Please visit
Saturday, May 29
Criminal poetry?
Have you heard about this?
California high court debates conviction of teenage boy
Friday, May 28, 2004 Posted: 10:30 AM EDT (1430 GMT)
SAN FRANCISCO, California (AP) -- The California Supreme Court is deciding whether to throw out the conviction of a 15-year-old boy who served 100 days in juvenile hall for writing a poem that included a threat to kill his fellow students.
The case weighs free speech rights against the government's responsibility to provide safety in schools after campus shootings nationwide.
Attorneys for the San Jose boy, identified as George T. in court records, described the poem Thursday as youthful artistic expression. One passage says: "For I can be the next kid to bring guns to kill students at school." Another reads: "For I am Dark, Destructive & Dangerous."
Read the rest.
Thursday, May 20
Thanks for linking to Rebel Edit
Noonless & Comma Embargo.
Please feel free to send along rebellious editing, rebellious translations or mistranslations or free translations, or related free speech news or event announcements.
Poetry censored for political content
(Not directly related to our thread here at Rebel Edit, but I just heard about this and thought folks might be interested.)
Bill Nevins, a New Mexico high school teacher and personal friend [of Dayton-Beach News reporter Bill Hill] , was fired last year and classes in poetry and the poetry club at Rio Rancho High School were permanently terminated. It had nothing to do with obscenity, but it had everything to do with extremist politics.
The "Slam Team" was a group of teenage poets who asked Nevins to serve as faculty adviser to their club. The teens, mostly shy youngsters, were taught to read their poetry aloud and before audiences. Rio Rancho High School gave the Slam Team access to the school's closed-circuit television once a week and the poets thrived.
In March 2003, a teenage girl named Courtney presented one of her poems before an audience at Barnes & Noble bookstore in Albuquerque, then read the poem live on the school's closed-circuit television channel.
A school military liaison and the high school principal accused the girl of being "un-American" because she criticized the war in Iraq and the Bush administration's failure to give substance to its "No child left behind" education policy.
The girl's mother, also a teacher, was ordered by the principal to destroy the child's poetry. The mother refused and may lose her job.
Bill Nevins was suspended for not censoring the poetry of his students. Remember, there is no obscenity to be found in any of the poetry. He was later fired by the principal.
Read the rest.
Related links:
National Writers Union
American Civil Liberties Union's Free Speech center
Tuesday, April 13
Thanks for the link of support...
AAP's analysis of the OFAC's April 2nd response to the IEEE
The AAP has scheduled a board meeting (with legal counsel attending) for April 21 to discuss a judicial challenge to the OFAC ruling.
April 6, 2004
TO: Interested Parties
FR: Allan Adler
RE: OFAC’s April 2, 2004 Response to IEEE License Application
The April 2 letter sent by the director of the Office of Foreign Assets Control (OFAC) to the Institute of Electrical and Electronic Engineers (IEEE) concludes that the “peer review” and “style and copy editing” described by IEEE in connection with its publication of scientific journals are “not constrained by OFAC’s regulatory programs.” [The letter is posted as a pdf file below--Rebel Edit]
While this resolution of IEEE’s pending license application may satisfy the specific needs and concerns of IEEE (and, perhaps, those of other similarly-situated publishers), the OFAC rulings do not satisfy the needs and concerns of other AAP members as these have been discussed and articulated in various communications over the past two months.
There are two reasons for this conclusion:
First, as a threshold matter, the rulings rely upon OFAC’s continued assertion that the Berman Amendment, which amended both the International Emergency Economic Powers Act (IEEPA) and the Trading With the Enemy Act (TWEA) to prohibit the president from directly or indirectly regulating or prohibiting the importation or exportation of “information or informational materials” as part of a trade embargo, does not apply to transactions that involve “informational materials not fully created and in existence at the date of the transaction” or that result in “substantive or artistic alteration or enhancement of the information or informational materials.”
However, as AAP informed OFAC in Pat Schroeder’s letter dated March 24 of this year, [posted below--Rebel Edit] OFAC’s claim of authority to impose these qualifications on the scope of the statutory exemption provided by the Berman Amendment is not supported by either the statutory language or its legislative history, and runs counter to the intent of Congress as expressed in both. Indeed, OFAC’s exercise of this authority through its licensing regime would appear to constitute a classic prior restraint on publishing in violation of the First Amendment’s guarantee of freedom of the press.
Second, even if OFAC’s rulings are pragmatically viewed purely in terms of whether AAP members can rely on them for assurance that their day-to-day publishing activities do not require licenses under OFAC’s regulatory programs, the rulings are problematic. While they may address IEEE's concerns for its publication of scientific journals, 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.
OFAC’s Continued Assertion of Unauthorized Regulatory Authority
In its April 2 letter, OFAC approval of IEEE’s practices is clearly based on its view that those practices do not run afoul of the qualifications that OFAC’s implementing regulations have, without any apparent legal authority, unilaterally imposed on the scope of the Berman Amendment’s statutory exemption for transactions concerning the importation or exportation of “information or informational materials.”
At the top of page 2, the OFAC letter flatly maintains that “the Berman Amendment does not apply to transactions (including the exportation of services) with respect to ‘informational materials not fully created and in existence at the date of the transactions,’ or to the ‘substantive or artistic alteration or enhancement of the information or informational materials.’”
OFAC’s ruling clearly links its approval of IEEE’s “peer review process” to these provisions of OFAC’s implementing regulations that narrow the scope of the exemption provided by the Berman Amendment, stating in the middle of page 3 that “no license from OFAC is required for IEEE to conduct the kind of editorial activity engaged in during the peer review process, provided such activity does not result in the reviewers’ substantive or artistic alterations or enhancements of the manuscript.” (emphasis added).
Based upon its “understanding” and characterization of IEEE’s peer review process, OFAC concludes that the process “does not entail the prohibited exportation of services to Iran or another Sanctioned Country resulting in substantive alterations or enhancements of informational material by U.S. persons prior to its final importation into the United States for publication.” (emphasis added)
Similarly, on page 4 of the letter, OFAC concludes that IEEE’s style-and- copy editing falls within the scope of the Berman Amendment “because such activity as described does not constitute substantive or artistic alteration or enhancement of the informational material…” (emphasis added).
The point is further confirmed (albeit indirectly) by the letter’s conclusion that style and copy editing “would thus fall within the same category of exempt transactions that includes transactions relating to informational materials that are reproduced, subtitled, translated (including both literal and idiomatic translation) or dubbed by U.S. persons for dissemination within the United States.” Although the letter implies that translation is an exempt activity within the scope of the Berman Amendment, publishers should be aware that OFAC applies the same regulatory analysis to that activity as it does to editing, and thus translation may be exempt under the Berman Amendment, provided that the translation does not result in or constitute “substantive or artistic alteration or enhancement of the informational material” – a doubtful characterization of translation in the context of many kinds of literary works.
It seems clear, then, that had OFAC concluded that either IEEE’s peer review process or its style and copy editing does “result in” or “constitute” substantive or artistic alteration or enhancement of the informational material, OFAC would have concluded that these activities fall outside the scope of the Berman Amendment and require a license in order to be lawfully conducted. OFAC’s final, carefully-stated conclusion that IEEE “is therefore not constrained by OFAC’s regulatory programs” should not mask the fact that OFAC’s implementation of those programs is based on the exercise of asserted regulatory authority which is denied, rather than granted, to OFAC by the explicit language of the Berman Amendment
OFAC’s Approval of IEEE’s Activities May Not Aid Other Publishers
OFAC’s April 2 letter describes in explicit detail the IEEE activities that it finds to be within the scope of the Berman Amendment and, therefore, permissible without a license. By carefully and repeatedly limiting the applicability of its legal conclusions to IEEE’s activities “as set forth above,” OFAC makes clear that those conclusions may not apply to the peer review processes and editing practices of other publishers to the extent that these differ from the specific IEEE activities described in the letter.
In fact, OFAC’s letter contains a number of statements that clearly imply OFAC would reach different legal conclusions if confronted with peer review and editing practices that differ from those of IEEE.
For example, on page 2, after describing the manner in which comments from IEEE peer reviewers are collected and utilized, the letter states “while this is IEEE’s practice, the mode of delivering questions or comments from peer reviewers to authors may vary considerably from journal to journal, in some cases involving a web-based form, e-mail, or the manual mark-up of a manuscript and shipment of that mark-up via photocopy, fax or pdf file.” (emphasis added) This observation is significant in light of a subsequent “clarifying” statement on page 3 in which OFAC says “we would consider a prohibited exportation of services to occur when a collaborative interaction takes place between an author in a Sanctioned County and one or more U.S. scholars resulting in co-authorship or the equivalent thereof.”
Although the OFAC letter does not define what would constitute “co-authorship or the equivalent thereof,” it offers a clue to its thinking by emphasizing on page 3 that, in the kind of editorial activity conducted during IEEE’s approved peer review process, “neither the publisher nor its reviewers substantively rewrite or revise the manuscript for the author” to remedy perceived problems in a submitted manuscript. This would certainly appear to indicate that developmental editing practices, which are not limited to style and copy aspects, would run afoul of OFAC’s “substantive or artistic alterations or enhancements” standard as it was applied with respect to IEEE’s peer review process. At the very least, it indicates that publishers may routinely find it necessary to resolve any doubts about the permissibility of their editorial practices under OFAC’s “regulatory programs” by applying to the federal government to determine whether their editorial practices are permitted without a license.
Similarly, on page 4, the OFAC letter contains eight specific “bullets” that define the particular kinds of style/copy editing which comprise IEEE’s practice. OFAC’s conclusion that “style and copy editing… falls within the scope of the Berman Amendment” is explicitly limited to such editing “as described in” IEEE’s submissions and “set forth above” in the bullets. Clearly, publishers whose specific “style and copy editing” practices differ from those detailed in the OFAC letter will again find it routinely necessary to resolve any doubts about the permissibility of those practices by application to OFAC.
Moreover, since the ruling directly addresses these issues only in the context of papers submitted for publication as articles in scientific or scholarly journals, it is reasonable to assume that the publication of books and other kinds of literary works will involve very different editorial practices, as would the development of commissioned works.
Conclusion
OFAC’s April 2 letter rulings on IEEE’s peer review process and editing practices are premised on OFAC’s continued assertion of excessive regulatory authority that conflicts with the language and intent of the Berman Amendment, and also appears to violate the First Amendment’s guarantee of freedom of the press. While the OFAC rulings may satisfy concerns of that particular publisher, they create – rather than resolve – substantial concerns and problems for many other publishers.
OFAC’s rulings leave a trail of uncertainty and ambiguity regarding the permissibility of diverse editorial practices among various kinds of publishers dealing with a variety of literary works. This imposes an intolerable burden on publishers, requiring them to either censor their own activities or seek government permission to engage in them.
Since OFAC’s action has failed to adequately respond to the protests of AAP and the original sponsor of the Berman Amendment, as well as calls for moderation within the Executive Branch, judicial action should now be considered as perhaps the only viable way to meaningfully address these issues.
April 6, 2004
TO: Interested Parties
FR: Allan Adler
RE: OFAC’s April 2, 2004 Response to IEEE License Application
The April 2 letter sent by the director of the Office of Foreign Assets Control (OFAC) to the Institute of Electrical and Electronic Engineers (IEEE) concludes that the “peer review” and “style and copy editing” described by IEEE in connection with its publication of scientific journals are “not constrained by OFAC’s regulatory programs.” [The letter is posted as a pdf file below--Rebel Edit]
While this resolution of IEEE’s pending license application may satisfy the specific needs and concerns of IEEE (and, perhaps, those of other similarly-situated publishers), the OFAC rulings do not satisfy the needs and concerns of other AAP members as these have been discussed and articulated in various communications over the past two months.
There are two reasons for this conclusion:
First, as a threshold matter, the rulings rely upon OFAC’s continued assertion that the Berman Amendment, which amended both the International Emergency Economic Powers Act (IEEPA) and the Trading With the Enemy Act (TWEA) to prohibit the president from directly or indirectly regulating or prohibiting the importation or exportation of “information or informational materials” as part of a trade embargo, does not apply to transactions that involve “informational materials not fully created and in existence at the date of the transaction” or that result in “substantive or artistic alteration or enhancement of the information or informational materials.”
However, as AAP informed OFAC in Pat Schroeder’s letter dated March 24 of this year, [posted below--Rebel Edit] OFAC’s claim of authority to impose these qualifications on the scope of the statutory exemption provided by the Berman Amendment is not supported by either the statutory language or its legislative history, and runs counter to the intent of Congress as expressed in both. Indeed, OFAC’s exercise of this authority through its licensing regime would appear to constitute a classic prior restraint on publishing in violation of the First Amendment’s guarantee of freedom of the press.
Second, even if OFAC’s rulings are pragmatically viewed purely in terms of whether AAP members can rely on them for assurance that their day-to-day publishing activities do not require licenses under OFAC’s regulatory programs, the rulings are problematic. While they may address IEEE's concerns for its publication of scientific journals, 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.
OFAC’s Continued Assertion of Unauthorized Regulatory Authority
In its April 2 letter, OFAC approval of IEEE’s practices is clearly based on its view that those practices do not run afoul of the qualifications that OFAC’s implementing regulations have, without any apparent legal authority, unilaterally imposed on the scope of the Berman Amendment’s statutory exemption for transactions concerning the importation or exportation of “information or informational materials.”
At the top of page 2, the OFAC letter flatly maintains that “the Berman Amendment does not apply to transactions (including the exportation of services) with respect to ‘informational materials not fully created and in existence at the date of the transactions,’ or to the ‘substantive or artistic alteration or enhancement of the information or informational materials.’”
OFAC’s ruling clearly links its approval of IEEE’s “peer review process” to these provisions of OFAC’s implementing regulations that narrow the scope of the exemption provided by the Berman Amendment, stating in the middle of page 3 that “no license from OFAC is required for IEEE to conduct the kind of editorial activity engaged in during the peer review process, provided such activity does not result in the reviewers’ substantive or artistic alterations or enhancements of the manuscript.” (emphasis added).
Based upon its “understanding” and characterization of IEEE’s peer review process, OFAC concludes that the process “does not entail the prohibited exportation of services to Iran or another Sanctioned Country resulting in substantive alterations or enhancements of informational material by U.S. persons prior to its final importation into the United States for publication.” (emphasis added)
Similarly, on page 4 of the letter, OFAC concludes that IEEE’s style-and- copy editing falls within the scope of the Berman Amendment “because such activity as described does not constitute substantive or artistic alteration or enhancement of the informational material…” (emphasis added).
The point is further confirmed (albeit indirectly) by the letter’s conclusion that style and copy editing “would thus fall within the same category of exempt transactions that includes transactions relating to informational materials that are reproduced, subtitled, translated (including both literal and idiomatic translation) or dubbed by U.S. persons for dissemination within the United States.” Although the letter implies that translation is an exempt activity within the scope of the Berman Amendment, publishers should be aware that OFAC applies the same regulatory analysis to that activity as it does to editing, and thus translation may be exempt under the Berman Amendment, provided that the translation does not result in or constitute “substantive or artistic alteration or enhancement of the informational material” – a doubtful characterization of translation in the context of many kinds of literary works.
It seems clear, then, that had OFAC concluded that either IEEE’s peer review process or its style and copy editing does “result in” or “constitute” substantive or artistic alteration or enhancement of the informational material, OFAC would have concluded that these activities fall outside the scope of the Berman Amendment and require a license in order to be lawfully conducted. OFAC’s final, carefully-stated conclusion that IEEE “is therefore not constrained by OFAC’s regulatory programs” should not mask the fact that OFAC’s implementation of those programs is based on the exercise of asserted regulatory authority which is denied, rather than granted, to OFAC by the explicit language of the Berman Amendment
OFAC’s Approval of IEEE’s Activities May Not Aid Other Publishers
OFAC’s April 2 letter describes in explicit detail the IEEE activities that it finds to be within the scope of the Berman Amendment and, therefore, permissible without a license. By carefully and repeatedly limiting the applicability of its legal conclusions to IEEE’s activities “as set forth above,” OFAC makes clear that those conclusions may not apply to the peer review processes and editing practices of other publishers to the extent that these differ from the specific IEEE activities described in the letter.
In fact, OFAC’s letter contains a number of statements that clearly imply OFAC would reach different legal conclusions if confronted with peer review and editing practices that differ from those of IEEE.
For example, on page 2, after describing the manner in which comments from IEEE peer reviewers are collected and utilized, the letter states “while this is IEEE’s practice, the mode of delivering questions or comments from peer reviewers to authors may vary considerably from journal to journal, in some cases involving a web-based form, e-mail, or the manual mark-up of a manuscript and shipment of that mark-up via photocopy, fax or pdf file.” (emphasis added) This observation is significant in light of a subsequent “clarifying” statement on page 3 in which OFAC says “we would consider a prohibited exportation of services to occur when a collaborative interaction takes place between an author in a Sanctioned County and one or more U.S. scholars resulting in co-authorship or the equivalent thereof.”
Although the OFAC letter does not define what would constitute “co-authorship or the equivalent thereof,” it offers a clue to its thinking by emphasizing on page 3 that, in the kind of editorial activity conducted during IEEE’s approved peer review process, “neither the publisher nor its reviewers substantively rewrite or revise the manuscript for the author” to remedy perceived problems in a submitted manuscript. This would certainly appear to indicate that developmental editing practices, which are not limited to style and copy aspects, would run afoul of OFAC’s “substantive or artistic alterations or enhancements” standard as it was applied with respect to IEEE’s peer review process. At the very least, it indicates that publishers may routinely find it necessary to resolve any doubts about the permissibility of their editorial practices under OFAC’s “regulatory programs” by applying to the federal government to determine whether their editorial practices are permitted without a license.
Similarly, on page 4, the OFAC letter contains eight specific “bullets” that define the particular kinds of style/copy editing which comprise IEEE’s practice. OFAC’s conclusion that “style and copy editing… falls within the scope of the Berman Amendment” is explicitly limited to such editing “as described in” IEEE’s submissions and “set forth above” in the bullets. Clearly, publishers whose specific “style and copy editing” practices differ from those detailed in the OFAC letter will again find it routinely necessary to resolve any doubts about the permissibility of those practices by application to OFAC.
Moreover, since the ruling directly addresses these issues only in the context of papers submitted for publication as articles in scientific or scholarly journals, it is reasonable to assume that the publication of books and other kinds of literary works will involve very different editorial practices, as would the development of commissioned works.
Conclusion
OFAC’s April 2 letter rulings on IEEE’s peer review process and editing practices are premised on OFAC’s continued assertion of excessive regulatory authority that conflicts with the language and intent of the Berman Amendment, and also appears to violate the First Amendment’s guarantee of freedom of the press. While the OFAC rulings may satisfy concerns of that particular publisher, they create – rather than resolve – substantial concerns and problems for many other publishers.
OFAC’s rulings leave a trail of uncertainty and ambiguity regarding the permissibility of diverse editorial practices among various kinds of publishers dealing with a variety of literary works. This imposes an intolerable burden on publishers, requiring them to either censor their own activities or seek government permission to engage in them.
Since OFAC’s action has failed to adequately respond to the protests of AAP and the original sponsor of the Berman Amendment, as well as calls for moderation within the Executive Branch, judicial action should now be considered as perhaps the only viable way to meaningfully address these issues.
OFAC's April 2, 2004 response to the IEEE's application
Downloadable as a PDF file.
Thanks to Richard Nash for these materials, distributed by the AAP to their members.
Note: These articles are posted in reverse chronology. Please begin with the post below.
Thanks to Richard Nash for these materials, distributed by the AAP to their members.
Note: These articles are posted in reverse chronology. Please begin with the post below.
Recent correspondence between the AAP & the OFAC, courtesy of Richard Nash
In late March, Patricia Schroeder, President & CEO of Association of American Publishers [AAP] wrote to R. Richard Newcomb, Director of the OFAC calling for the agency to "refrain from citing any publisher as being in violation" at least until the license application of the IEEE has been approved or denied. The first letter below is Ms. Schroeder's announcement to AAP Heads of House. The second is her original letter to Mr. Newcomb at the OFAC.
Dear AAP Heads of House:
The director of the Office of Foreign Assets Control (OFAC) sent a letter to the Institute of Electrical and Electronic Engineers (IEEE) on April 2, concluding that the peer review and editing practices described by IEEE are exempt from OFAC's licensing authority. However, for other AAP members, the letter leaves many questions unanswered and many First Amendment problems unresolved with respect to OFAC's regulations governing the publication of informational materials from countries subject to U.S. trade embargoes.
OFAC continues to insist that legislation enacted by Congress that explicitly exempts “informational materials” from the reach of U.S. trade embargoes (the so-called Berman Amendment) does not apply to "informational materials not fully created and in existence at the date of the transaction” or to transactions resulting in the “substantive or artistic alteration or enhancement of the information or informational materials.” OFAC takes this position despite the fact that nothing in the statutory language or its legislative history supports such an interpretation.
While the April 2 letter appears to give OFAC’s approval to the specific methods used in the peer review process by one scholarly publisher (IEEE), it provides no assurance that other publishers, whose methods and means of communication between editors and foreign authors differ from those used by IEEE, will not find themselves in the untenable position of having to seek a government license to carry on First Amendment-protected publishing activities or leave themselves open to criminal penalties.
Particularly troubling is OFAC’s continued insistence that “collaborative interaction” between the publisher and foreign author is prohibited.
We appreciate that OFAC’s response to IEEE’s license application affirmed that IEEE’s peer review and style- and copy-editorial processes are exempt from current restrictions imposed on trade with embargoed countries because they have been determined to be within the scope of the Berman Amendment exemption from such restrictions, as implemented through OFAC’s regulatory enforcement. However, this affirmation provides little comfort for the activities of countless other publishers whose peer review process and editorial processes may, as OFAC acknowledges, differ significantly from those spelled out by IEEE and approved by OFAC.
More importantly, OFAC’s response remains anchored in its imposition of conditions of eligibility for the statutory exemption embodied by the Berman Amendment, despite the fact that such qualifying conditions have no foundation in either statutory language or legislative history of that exemption. Thus, its approval of IEEE’s particular practices indicates that OFAC intends to continue to assert licensing authority over publishing activities—authority that we believe is denied to it by the express language of the Berman Amendment as well as the First Amendment’s protection of the freedom of the press.
OFAC’s position in response to IEEE will be further reviewed and discussed within AAP, the Association of American University Presses, and the PEN American Center to determine what further action may be necessary to ensure that OFAC’s regulatory programs remain confined within their proper authority and that publishers are not constrained by the fear of prosecution if they try to bring to the American public voices and information from Iran, North Korea, Cuba and other countries that are of urgent concern to us all.
A copy of my March 24 letter about this matter to OFAC follows. A full analysis of the OFAC ruling will be made and additional information will be provided later. In the interim, if you have any questions, please contact Allan Adler, AAP Vice President for Legal and Governmental Affairs, at adler@publishers.org or 202/220-4544.
Thanks,
Pat Schroeder
AAP President & CEO
____________________________
March 24, 2004
Mr. R. Richard Newcomb
Director
Office of Foreign Assets Control
U.S. Department of the Treasury
Treasury Building Annex, Second Floor
Pennsylvania Avenue & Madison Place, NW
Washington, DC 20220
Dear Mr. Newcomb:
On behalf of the Association of American Publishers (“AAP”), I want to thank you and your staff for meeting with Allan Adler and his colleagues last Friday to discuss the U.S. publishing industry’s concern that OFAC regulations for implementing trade embargoes ordered by the President are restricting the importation and exportation of “informational materials” in ways that are contrary to the language and intent of federal legislation that specifically exempts such transactions from the scope of authorized trade restrictions.
Although we question the legitimacy of the qualifications and conditions that OFAC’s regulations have imposed on the applicability of the statutory exemption for “informational materials” that was added to both the International Emergency Economic Powers Act (“IEEPA”) and the Trading With the Enemy Act (“TWEA”) by the Berman Amendment, it was instructive to have the history and purpose of those regulatory provisions explained by you and your staff from OFAC’s perspective.
We appreciate your assurance that Executive Branch officials are attempting to address publishers’ concerns in crafting OFAC’s response to IEEE’s pending application for a “general license” to engage in certain non-exempt activities related to the publication of non-commercial, academic articles or studies. However, as I’m sure Mr. Adler and his colleagues explained, OFAC’s issuance of such a license – or any other kind of license purporting to authorize publishing activities – will not resolve the issue for AAP and other publishers who believe that licensing authority over such activities is precisely what the Berman Amendment (and, indeed, the First Amendment) denies to federal government officials.
From the perspective of U.S. publishers, this issue can be satisfactorily resolved only through OFAC’s adherence to the Berman Amendment’s prescription that the President’s authority under IEEPA and TWEA “does not include the authority to regulate or prohibit, directly or indirectly,” the importation or exportation of information or informational materials. Any other resolution that allows OFAC to continue to exercise its discretionary licensing authority over the details of publishing activities will impose a “chilling effect” on such activities in violation of the statutory mandate of the Berman Amendment and the constitutional guarantee of freedom of the press.
The notoriety that now surrounds the applicability of OFAC’s regulations to publishing activities, following a history of obscurity that made their existence virtually unknown to the publishing community, currently presents publishers with the undesirable choice of either ignoring the regulations at the risk of being considered “willful” violators for any transgressions, or attempting to conform their publishing conduct to the regulation’s requirements as provided in last September’s OFAC interpretative rulings. The September 30 ruling demonstrates the severity of the publishers’ dilemma, illustrating the confusion that now confronts publishers through its ambiguous take on whether the peer review process in scientific and scholarly publishing violates the regulation’s prohibition against transactions relating to “any substantive or artistic alteration or enhancement” of the informational materials at issue.
Because publishers are presently experiencing a “chilling effect” as they attempt to determine which of their transactions with citizens of embargoed countries may or may not subject them to potential legal liability under OFAC’s licensing regime, we would urge you to alleviate this situation by announcing that, at least until a final decision is announced regarding IEEE’s pending license application, OFAC will refrain from citing any publisher as being in violation of its regulations based upon the publisher’s engaging in the kind of publishing activities that are at issue in OFAC’s consideration of the pending application. Such a gesture, consistent with the absence of any citation of publishers for violations during the fifteen years in which the regulations have been in effect, is appropriate during a period in which OFAC itself is reconsidering the exact nature of the activities it deems to be non-exempt under the Berman Amendment and thus within the scope of its licensing authority.
AAP’s Board of Directors will be meeting in April to discuss the options that may be available to the publishing community depending upon the nature of OFAC’s response to IEEE’s pending license application. In the meantime, please remember that we are available for further discussion of these matters with you or your staff if that would be helpful to you.
Sincerely,
Patricia Schroeder
President & CEO
Dear AAP Heads of House:
The director of the Office of Foreign Assets Control (OFAC) sent a letter to the Institute of Electrical and Electronic Engineers (IEEE) on April 2, concluding that the peer review and editing practices described by IEEE are exempt from OFAC's licensing authority. However, for other AAP members, the letter leaves many questions unanswered and many First Amendment problems unresolved with respect to OFAC's regulations governing the publication of informational materials from countries subject to U.S. trade embargoes.
OFAC continues to insist that legislation enacted by Congress that explicitly exempts “informational materials” from the reach of U.S. trade embargoes (the so-called Berman Amendment) does not apply to "informational materials not fully created and in existence at the date of the transaction” or to transactions resulting in the “substantive or artistic alteration or enhancement of the information or informational materials.” OFAC takes this position despite the fact that nothing in the statutory language or its legislative history supports such an interpretation.
While the April 2 letter appears to give OFAC’s approval to the specific methods used in the peer review process by one scholarly publisher (IEEE), it provides no assurance that other publishers, whose methods and means of communication between editors and foreign authors differ from those used by IEEE, will not find themselves in the untenable position of having to seek a government license to carry on First Amendment-protected publishing activities or leave themselves open to criminal penalties.
Particularly troubling is OFAC’s continued insistence that “collaborative interaction” between the publisher and foreign author is prohibited.
We appreciate that OFAC’s response to IEEE’s license application affirmed that IEEE’s peer review and style- and copy-editorial processes are exempt from current restrictions imposed on trade with embargoed countries because they have been determined to be within the scope of the Berman Amendment exemption from such restrictions, as implemented through OFAC’s regulatory enforcement. However, this affirmation provides little comfort for the activities of countless other publishers whose peer review process and editorial processes may, as OFAC acknowledges, differ significantly from those spelled out by IEEE and approved by OFAC.
More importantly, OFAC’s response remains anchored in its imposition of conditions of eligibility for the statutory exemption embodied by the Berman Amendment, despite the fact that such qualifying conditions have no foundation in either statutory language or legislative history of that exemption. Thus, its approval of IEEE’s particular practices indicates that OFAC intends to continue to assert licensing authority over publishing activities—authority that we believe is denied to it by the express language of the Berman Amendment as well as the First Amendment’s protection of the freedom of the press.
OFAC’s position in response to IEEE will be further reviewed and discussed within AAP, the Association of American University Presses, and the PEN American Center to determine what further action may be necessary to ensure that OFAC’s regulatory programs remain confined within their proper authority and that publishers are not constrained by the fear of prosecution if they try to bring to the American public voices and information from Iran, North Korea, Cuba and other countries that are of urgent concern to us all.
A copy of my March 24 letter about this matter to OFAC follows. A full analysis of the OFAC ruling will be made and additional information will be provided later. In the interim, if you have any questions, please contact Allan Adler, AAP Vice President for Legal and Governmental Affairs, at adler@publishers.org or 202/220-4544.
Thanks,
Pat Schroeder
AAP President & CEO
____________________________
March 24, 2004
Mr. R. Richard Newcomb
Director
Office of Foreign Assets Control
U.S. Department of the Treasury
Treasury Building Annex, Second Floor
Pennsylvania Avenue & Madison Place, NW
Washington, DC 20220
Dear Mr. Newcomb:
On behalf of the Association of American Publishers (“AAP”), I want to thank you and your staff for meeting with Allan Adler and his colleagues last Friday to discuss the U.S. publishing industry’s concern that OFAC regulations for implementing trade embargoes ordered by the President are restricting the importation and exportation of “informational materials” in ways that are contrary to the language and intent of federal legislation that specifically exempts such transactions from the scope of authorized trade restrictions.
Although we question the legitimacy of the qualifications and conditions that OFAC’s regulations have imposed on the applicability of the statutory exemption for “informational materials” that was added to both the International Emergency Economic Powers Act (“IEEPA”) and the Trading With the Enemy Act (“TWEA”) by the Berman Amendment, it was instructive to have the history and purpose of those regulatory provisions explained by you and your staff from OFAC’s perspective.
We appreciate your assurance that Executive Branch officials are attempting to address publishers’ concerns in crafting OFAC’s response to IEEE’s pending application for a “general license” to engage in certain non-exempt activities related to the publication of non-commercial, academic articles or studies. However, as I’m sure Mr. Adler and his colleagues explained, OFAC’s issuance of such a license – or any other kind of license purporting to authorize publishing activities – will not resolve the issue for AAP and other publishers who believe that licensing authority over such activities is precisely what the Berman Amendment (and, indeed, the First Amendment) denies to federal government officials.
From the perspective of U.S. publishers, this issue can be satisfactorily resolved only through OFAC’s adherence to the Berman Amendment’s prescription that the President’s authority under IEEPA and TWEA “does not include the authority to regulate or prohibit, directly or indirectly,” the importation or exportation of information or informational materials. Any other resolution that allows OFAC to continue to exercise its discretionary licensing authority over the details of publishing activities will impose a “chilling effect” on such activities in violation of the statutory mandate of the Berman Amendment and the constitutional guarantee of freedom of the press.
The notoriety that now surrounds the applicability of OFAC’s regulations to publishing activities, following a history of obscurity that made their existence virtually unknown to the publishing community, currently presents publishers with the undesirable choice of either ignoring the regulations at the risk of being considered “willful” violators for any transgressions, or attempting to conform their publishing conduct to the regulation’s requirements as provided in last September’s OFAC interpretative rulings. The September 30 ruling demonstrates the severity of the publishers’ dilemma, illustrating the confusion that now confronts publishers through its ambiguous take on whether the peer review process in scientific and scholarly publishing violates the regulation’s prohibition against transactions relating to “any substantive or artistic alteration or enhancement” of the informational materials at issue.
Because publishers are presently experiencing a “chilling effect” as they attempt to determine which of their transactions with citizens of embargoed countries may or may not subject them to potential legal liability under OFAC’s licensing regime, we would urge you to alleviate this situation by announcing that, at least until a final decision is announced regarding IEEE’s pending license application, OFAC will refrain from citing any publisher as being in violation of its regulations based upon the publisher’s engaging in the kind of publishing activities that are at issue in OFAC’s consideration of the pending application. Such a gesture, consistent with the absence of any citation of publishers for violations during the fifteen years in which the regulations have been in effect, is appropriate during a period in which OFAC itself is reconsidering the exact nature of the activities it deems to be non-exempt under the Berman Amendment and thus within the scope of its licensing authority.
AAP’s Board of Directors will be meeting in April to discuss the options that may be available to the publishing community depending upon the nature of OFAC’s response to IEEE’s pending license application. In the meantime, please remember that we are available for further discussion of these matters with you or your staff if that would be helpful to you.
Sincerely,
Patricia Schroeder
President & CEO
Monday, April 5
Ban Is Eased on Editing Foreign Work, from the New York Times
WASHINGTON, April 4
The federal government has eased a ban on editing manuscripts from nations that are under United States trade embargoes, a move that appears to leave publishers free once again to edit scholarly works from Iran and other such countries.
The Treasury Department sent a letter on Friday to a lawyer for the Institute of Electronic and Electrical Engineers, an international group representing more than 360,000 engineers and scientists, saying the organization's peer review, editing and publishing was "not constrained" by regulations from the department's Office of Foreign Assets Control. The group says its members produce 30 percent of the world's literature in electrical and electronics engineering and computer science.
The letter from the Treasury Department referred specifically to publishing by the institute, but Arthur Winston, the group's president, said he believed the ruling would be "a relief for nearly everyone" in the scholarly publishing community.
"The ruling eliminates potentially disturbing U.S. government intrusions on our scholarly publishing process," Mr. Winston said.
No one at the Treasury Department could be reached for comment Sunday night on the ruling.
The department and publishers have long quarreled over the exemption of "information or informational materials" from the nation's trade embargoes. Congress has generally allowed such exemptions.
Nonetheless, the Treasury Department sent out advisory letters over the past year telling publishers who were editing material from a country under a trade embargo that they were forbidden to reorder paragraphs or sentences, correct syntax or grammar, replace "inappropriate words" or add illustrations.
The advisories concerned Iran, but experts said the ruling seemed to extend to Cuba, Libya, North Korea and other nations with which most trade is banned without a government license.
In theory, even routine editing on manuscripts from those countries could have subjected publishers to fines of $500,000 and 10 years in jail.
The federal government has eased a ban on editing manuscripts from nations that are under United States trade embargoes, a move that appears to leave publishers free once again to edit scholarly works from Iran and other such countries.
The Treasury Department sent a letter on Friday to a lawyer for the Institute of Electronic and Electrical Engineers, an international group representing more than 360,000 engineers and scientists, saying the organization's peer review, editing and publishing was "not constrained" by regulations from the department's Office of Foreign Assets Control. The group says its members produce 30 percent of the world's literature in electrical and electronics engineering and computer science.
The letter from the Treasury Department referred specifically to publishing by the institute, but Arthur Winston, the group's president, said he believed the ruling would be "a relief for nearly everyone" in the scholarly publishing community.
"The ruling eliminates potentially disturbing U.S. government intrusions on our scholarly publishing process," Mr. Winston said.
No one at the Treasury Department could be reached for comment Sunday night on the ruling.
The department and publishers have long quarreled over the exemption of "information or informational materials" from the nation's trade embargoes. Congress has generally allowed such exemptions.
Nonetheless, the Treasury Department sent out advisory letters over the past year telling publishers who were editing material from a country under a trade embargo that they were forbidden to reorder paragraphs or sentences, correct syntax or grammar, replace "inappropriate words" or add illustrations.
The advisories concerned Iran, but experts said the ruling seemed to extend to Cuba, Libya, North Korea and other nations with which most trade is banned without a government license.
In theory, even routine editing on manuscripts from those countries could have subjected publishers to fines of $500,000 and 10 years in jail.
