bye bye free speech in US?

[carabid at MPM.EDU]

                  I was flabbergasted to recently learn from a colleague
that the US government has decided that people in the US need a special
license to edit or otherwise provide peer review for scientific articles
produced by colleagues in various other countries such as Iran.

                  Below is some information about this ruling from National
Coalition for History notifications article at
<http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=H-Announce&month=0403
&week=d&msg=DFGFHb2Kyf7OBzL23yD3kQ&user=&pw=>.

The official U.S. ruling is at
<http://www.ustreas.gov/offices/eotffc/ofac/rulings/ia100203.pdf>.
Letter from Rep. Berman to Richard Newcomb, Director of OFAC to object to
government rulings is at
<http://www.house.gov/apps/list/speech/ca28_berman/newcomb_letter.html>.

 My personal view is that this and possible further limitations on free
speech will have a chilling effect upon science and indeed of course upon
our right to speak as we please.  I believe we should be contacting our
representatives and senators.

Gerald R. Noonan Ph.D.
Curator of Coleoptera
Editor of Insight
Milwaukee Public Museum
800 West Wells Street
Milwaukee WI 53233
e-mail: carabid at mpm.edu
office telephone: (414) 278-2762
fax: (414) 278-6100
WWW homepage: <<http://www.mpm.edu/collect/gary.html>>
Insight Publication Series homepage:
<http://<http://www.mpm.edu/cr/insight/insighthome.html>>


info about ruling-------------------------------------------------------

Recently, the U.S. Treasury Office of Foreign Assets Control (OFAC)

rendered a series of decisions concluding that peer reviewing and

editing of works by authors who live or work in embargoed countries by

U.S. publishers is against the law.  The decisions have significant

First Amendment implications and already appear to be having a chilling

effect on the publication of journal articles and books by authors

living and working in such countries as Iraq and Iran. In a nutshell,

the rulings and policy procedures they create makes the government the

ultimate arbiter of what scientific and cultural information may be

made available to the American public.



In 1977, Congress enacted the International Emergency Economic Powers

Act (IEEPA),  legislation that enables the president to impose

sanctions on countries whose actions threaten American national

security and to establish guidelines to regulate trade with hostile

nations.  The law seeks to insure that when economic and other

sanctions are imposed by the government, actions by American citizens

will not assist enemies of the United States.  The penalties for

violating the law are steep: fines up to $1 million and prison terms

for up to ten years may be imposed.



In 1988, Congress passed "the Berman Amendment" to IEEPA.  The

amendment stipulates that transactions involving "information and

informational materials" (i.e. printed materials including scholarly

journal articles, videotapes, CD-ROMS, and other modern communications

media) are generally exempt from such sanctions.



Now though, the Treasury Department has taken the position that the

Berman amendment does not exempt from regulation certain types of

information.  For example, OFAC maintains that editors of publications

may not edit or alter the works of a scholar who resides in a

sanctioned nation (i.e. Iran, Cuba, Iraq, Libya, North Korea, and the

Sudan) as such revisions constitute a "substantive enhancement" to the

originating author's work and thus create a "benefit" to a sanctioned

nation. Critics maintain that on its face OFAC's interpretation of law

is unconstitutional. Representative Howard Berman (D-CA), who wrote the

amendment exempting informational materials, characterized the Bush

administration's position as "patently absurd" (see

http://www.house.gov/apps/list/speech/ca28_berman/newcomb_letter.html).



According to OFAC, the government is to make a distinction between

"works in being" and "works in progress."  Scientific, technical,

scholarly, and popular works originating from sanctioned countries may

be published provided manuscript materials do not deviate from a

camera-ready version of an article or manuscript supplied by a

scholar.  If a manuscript is edited or receives any "substantive

enhancement," the work may not be published in an edited form unless it

is approved and sanctioned under license from OFAC.  The agency also

has determined that peer review of journal articles is permitted,

provided that not even a comma is altered in the original

document.  Critics declare this policy "makes a mockery of the

editorial and peer review process."



Academic publishers also assert that OFAC's interpretation of the law

(especially the provision regarding the government's asserted licensing

authority) "flaunts the freedom of the press guarantees provided by the

First Amendment."  According to Peter Givler, executive director of the

Association of American University Presses, "No publisher should ever

be forced to seek government permission to make scientific and cultural

information available to the American public."  Furthermore, Givler

notes the irony that the ruling does not restrict what people in

sanctioned countries may learn about the United States (information

that arguably may have national security implications) but rather, what

people in America may learn from historians, scientists, philosophers,

poets, and novelists in other countries "are to be monitored and

perhaps even banned."



So what is being done?  One publisher known to have applied for a OFAC

license in October 2003 -- the Institute of Electrical and Electronics

Engineers -- has yet received a determination on its license request

(for more information on the IEEE request, tap into http://www.ieee.org

and click on the OFAC ruling news in the "IEEE News" section of the

webpage). Congressman Berman continues to press the administration for

a "reconsideration" of the ruling and publishing and scholarly

organizations are considering their options, including filing suit in

federal court to force a retraction of the policy.  We will keep

readers posted on this issue as the situation develops.