AAP Challenges U.S. on Restricted Nations Statute

The Association of American Publishers reacted with skepticism and defiance to a letter from the Treasury Department intended to clarify issues underlying the statute governing relations between American publishers and embargoed material from outlaw nations. In the original dispute, Treasury had warned the Institute of Electrical and Electronic Engineers (IEEE) and other technical publishers in October last year that under the International Emergency Economic Powers Act (IEEPA), U.S. scholarly publishers must apply for a government license in order to edit the work of authors from outlaw nations such as Iran and North Korea. Strangely, the department also ruled that the same material can be published if it is not edited and is published verbatim.

The AAP, along with the Association of American University Presses and PEN American Center, is challenging the Treasury Department's Office of Foreign Assets Control's (OFAC) reading of both the statute and the Berman amendment, a section of the statute that allows the president to issue exemptions to the law. But the AAP is also challenging OFAC's authority to regulate the right to publish. The AAP rejects the Treasury Department's reading of the 1977 IEEPA statute, calling it both an erroneous interpretation of the act's language as well as a violation of publishers' First Amendment rights.

The April 2 letter from OFAC said that materials that have passed through IEEE's particular peer review and editing process could be published without license from OFAC. But the decision is not clear about publishers whose peer review and editing processes may differ from IEEE's, and the letter continues to maintain that "collaborative interaction" between a U.S. publisher and an author from a restricted nation is prohibited.

Alan Adler, AAP's v-p of legal and governmental affairs, told PW, "OFAC relies on standards that are not authorized by the Berman Act." Adler said the letter "resolves IEEE's concerns," but leaves other kinds of publishers "uncertain about whether they need a license to publish. We read the letter as OFAC reasserting licensing authority over publishers." Adler also pointed out under the OFAC's interpretation of the law, "artistic alterations or enhancements" are still prohibited. "Licensing is prior restraint. This is contrary to both the Berman Act and the First Amendment," said Adler. Adler said the AAP will take up this matter at its board meeting.