NEWS

Publishers File Suit Against Treasury Department Over Publishing Restrictions

Judith Randal

Calling U.S. Treasury Department restrictions on scientific publications from sanctioned nations "unconstitutional" and "a violation of the essential right of all Americans to learn about the world," a coalition of publishing groups has sued the department's Office of Foreign Assets Control (OFAC) and the Bush administration's Treasury Secretary, John W. Snow, to have them overturned.

The suit's core issue is whether it is legal for OFAC to have editorial oversight over the publication of materials submitted to American publishers by authors—including scientist authors—living in Sudan, Cuba, or Iran. The case was filed in September in Manhattan's Federal District Court. Its plaintiffs include the Association of American Publishers' Professional and Scholarly Publishing Division, the Association of American University Presses, the PEN American Center, and Arcade Publishing.

New Rule Issued

On December 15, as this issue of the Journal went to press, OFAC announced a new rule authorizing "transactions... that directly support the publishing and marketing of manuscripts, books, journals, and newspapers, in paper or electronic format," except if such activities directly involve the governments of the sanctioned countries. The rule also prohibits the development, production, or marketing of computer software with the countries.

OFAC's position had been that, because editing a submission from an author who lives in a sanctioned country is done to improve the submission, such improvements do that country a service that amounts to trading with the enemy. Accordingly, OFAC policy had been to allow the American publication (and distribution) of such manuscripts exactly as they come from their foreign authors, but to require the publishers to seek a license from OFAC if any change—such as copy editing or adding photographs or charts—is made to the manuscript. The penalty for violating the OFAC rules is a fine of as much as $1,000,000 or 10 years in jail. The lawsuit therefore alleges that the regulations have had a chilling effect on publishers.

"OFAC's view is that people who have problems [with these requirements] should not go to court to resolve them, but come to it instead," said Marc Brodsky, Ph.D., executive director of the American Institute of Physics and chair of the Association of American Publishers' Professional and Scholarly Publishing Division. "Our view is that, under the Constitution and its First Amendment, publishers in the United States should not have to ask our government for its permission to publish.... We don't want the government to have this arbitrary power."

According to the rule announced last month, publishers will no longer have to seek OFAC's permission for certain approved interactions with Sudan, Cuba, and Iran, as the rule automatically grants a general license to groups that are involved in such activities. However, an attorney for the plaintiffs says that it is unclear whether the lawsuit will be withdrawn. "Certainly the new regulations are an important step forward, but we do have some concerns," said Linda Steinman of the law firm Davis Wright Tremaine.

The original lawsuit argues that OFAC has been violating two laws that Congress has passed since 1988 as amendments to the trade embargo statutes that are currently in effect. Both laws, the suit maintains, exempt transactions involving "information and informational materials" from actions the statutes authorize, effectively saying that the executive branch does not have the authority to regulate information.

"In these new regulations, the government is granting very broad permission to publish, but they are still in the business of regulating [such activities]," Steinman said.

She added that the plaintiffs are also concerned about the provision that prohibits activities with the governments and anyone involved with the governments of the sanctioned countries, restricting such partnerships to academic and research institutions.

Additional Lawsuit

In late October, Nobel Peace Prize recipient Shirin Ebadi also filed a complaint against OFAC, saying that the regulations prohibit her from publishing her memoirs in the United States, which she is seeking to do because the content of her memoirs would be severely restricted if published in her native Iran.

"If even people like me—those who advocate peace and dialogue—are denied the right to publish their books in the United States with the assistance of Americans, then people will seriously question the view of the United States as a country that advocates democracy and freedom everywhere," she wrote in a November editorial in the New York Times.

According to a statement from the U.S. Treasury Department, the goal of the new rule is to avoid situations like Ebadi's. "OFAC's previous guidance was interpreted by some as discouraging the publication of dissident speech from within these oppressive regimes," Stuart Levy, the Treasury Undersecretary for the Office of Terrorism and Financial Intelligence, said in the statement. "That is the opposite of what we want. This new policy will ensure those dissident voices and others will be heard without undermining our sanctions policy."

The new rule was published in the Federal Register on December 17 and is available at http://www.treas.gov/ofac.



             
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