Although the IEEE is drawing heat for observing the sanctions, in fact the rules would apply to any professional society having exchanges with embargoed countries. An informal survey of a half-dozen other science and engineering organizations found wide variation in their compliance, and familiarity, with the sanctions. For example, one group refused to send any publications to embargoed countries but did allow researchers living there to publish in its journals. Another group said it placed no restrictions on members living in embargoed countries, but its online membership form did not allow Libya or Cuba to be selected as one's country of residence.
At the moment, though, IEEE is having to negotiate a tricky course with the Treasury Department, and it finds itself dealing with a formidable interlocutor. Created during the Korean War to freeze Chinese and North Korean assets, OFAC now has an annual budget of US $22 million and a staff of about 130.
PHOTO: AKIN GUMP
"OFAC's authority is extraordinary, because it is grounded in presidential authority and national security...they've got remarkably broad discretion."
–Wynn H. Segall
Sanctions imposed by OFAC are extremely broad and can be difficult to interpret, according to Wynn H. Segall, a partner with Akin Gump Strauss Hauer & Feld LLP (Washington, D.C.) and an expert on international trade. In general, exports of "goods, technology, and services" to embargoed countries are severely restricted, although the particulars differ from country to country. "There is a complete and universal ban on engaging in any kind of activity with an embargoed party or country, unless some exception has been provided," Segall says.
OFAC issues exemptions in the form of a license, on a case-by-case basis; presidential or legislative actions can also create exemptions. For example, the so-called Berman Amendment of 1994 provided for the export of "information and informational material," which is why the IEEE can still send journals to Iran and other embargoed countries.
Running afoul of the sanctions can bring fines of up to $10 million and even prison terms. "If you get it wrong, even if you think you acted in good faith, you can be found liable," Segall says. OFAC can and does penalize not just organizations but individuals within those organizations, and private citizens. "OFAC's authority is extraordinary, because it is grounded in presidential authority and national security," Segall says. "Compared to other police agencies in the federal government, they've got remarkably broad discretion and authority."
Although some of the sanctions, like those against Cuba, are long-standing, concerns about national security after 9/11 raised their profile anew. "The USA Patriot Act and subsequent regulations placed a greater burden for compliance on the private sector," Segall says.
Where the trouble began
Ironically, IEEE became aware of OFAC just before 9/11. IEEE staff were first alerted when the organization tried to pay for expenses related to the International Symposium on Telecommunications, a meeting that IEEE cosponsored in Tehran in the summer of 2001. "Our bank notified us—'Do you realize this isn't allowed?'—and we started looking at the regulations carefully," Adler recalls.
IEEE rejected a court challenge as too time-consuming and costly, according to Adler. Members affected by the new restrictions were informed of them in a letter sent in early 2002. At the same time, the editors in chief of IEEE's technical journals were told that manuscripts having at least one author from an embargoed country could no longer be edited; if reviewers deemed a manuscript publishable in its original form, though, it could be formatted before appearing in print.
"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."
Not surprisingly, journal editors have been "nearly unanimously opposed" to the new rules, says Douglas Verret, editor in chief of IEEE Transactions on Electron Devices . "It's a serious damper on intellectual enterprise," says Verret. "And it doesn't achieve the purpose for which it's intended—to make the U.S. more secure against terrorism. Logically, it should be the other way around. We should publish everything they know, and not publish what we know." Nevertheless, says Verret, he has complied with the rules. His journal carried two papers by Iranian researchers this year, only because "the manuscripts came in in pretty good shape."
IEEE members, particularly those in or from Iran, also expressed outrage. A petition circulated by a U.S.-based alumni group called the Sharif University of Technology Association garnered over 1200 signatures. Noting that a large number of the Sharif association also are members, senior members, and fellows of the IEEE and hold key positions in industry and academia, the petition complained that IEEE's actions were "in direct violation of its code of ethics, vision, mission, and constitution."
"From the Iranian point of view, the notion of being a restricted member flies in the face of their pride in being an IEEE member," says one person familiar with the controversy. "Membership is a symbol of status. And then suddenly they're told they're no longer part of the IEEE family. I can sympathize."
The fundamental question, says Verret, is how the IEEE can remain an international organization when it has to exclude or single out for special treatment certain nationalities. "Will we be forced to relocate overseas? Become a U.S.-only organization? It could force major changes in the charter of IEEE," he says.