US Treasury Department shuts down websites on blacklist
by Adam Liptak
(The NY Times)Steve Marshall is an English travel agent. He lives in Spain, and he
sells trips to Europeans who want to go to sunny places, including Cuba. In October, about 80 of his Web sites stopped working, thanks to the United States government.The sites, in English, French and Spanish, had been online since 1998. Some, like www.cuba-hemingway.com, were literary. Others, like www.cuba-havanacity.com, discussed Cuban history and culture. Still others ?www.ciaocuba.com and www.bonjourcuba.com ?were purely commercial sites aimed at Italian and French tourists.
æ‘ came to work in the morning, and we had no reservations at all,?Mr.
Marshall said on the phone from the Canary Islands. e thought it was
a technical problem.?/p>It turned out, though, that Mr. Marshall Web sites had been put on a Treasury Department blacklist
and, as a consequence, his American domain name registrar, eNom Inc.,
had disabled them. Mr. Marshall said eNom told him it did so after a
call from the Treasury Department; the company, based in Bellevue,
Wash., says it learned that the sites were on the blacklist through a
blog.Either way, there is no dispute that eNom shut down Mr.
Marshall sites without notifying him and has refused to release the
domain names to him. In effect, Mr. Marshall said, eNom has taken his
property and interfered with his business. He has slowly rebuilt his
Web business over the last several months, and now many of the same
sites operate with the suffix .net rather than .com, through a European
registrar. His servers, he said, have been in the Bahamas all along.Mr.
Marshall said he did not understand ow Web sites owned by a British
national operating via a Spanish travel agency can be affected by U.S.
law.?Worse, he said, hese days not even a judge is required for the
U.S. government to censor online materials.?/p>A Treasury
spokesman, John Rankin, referred a caller to a press release issued in
December 2004, almost three years before eNom acted. It said Mr.
Marshall company had helped Americans evade restrictions on travel to
Cuba and was generator of resources that the Cuban regime uses to
oppress its people.?It added that American companies must not only
stop doing business with the company but also freeze its assets,
meaning that eNom did exactly what it was legally required to do.Mr. Marshall said he was uninterested in American tourists. hey can go anyway,?he said. Peter
L. Fitzgerald, a law professor at Stetson University in Florida who has
studied the blacklist ?which the Treasury calls a list of pecially
designated nationals??said its operation was quite mysterious. here
really is no explanation or standard,?he said, æ»or why someone gets
on the list.?Susan Crawford, a visiting law professor at Yale
and a leading authority on Internet law, said the fact that many large
domain name registrars are based in the United States gives the
Treasury Office of Foreign Assets Control, or OFAC, control æŠver a
great deal of speech ?none of which may be actually hosted in the
U.S., about the U.S. or conflicting with any U.S. rights.?/p>æ™FAC apparently has the power to order that this speech disappear,?Professor Crawford said.The
law under which the Treasury Department is acting has an exemption,
known as the Berman Amendment, which seeks to protect æƒnformation or
informational materials.?Mr. Marshall Web sites, though ultimately
commercial, would seem to qualify, and it is not clear why they appear
on the list. Unlike Americans, who face significant restrictions on
travel to Cuba, Europeans are free to go there, and many do. Charles S.
Sims, a lawyer with Proskauer Rose in New York, said the Treasury
Department might have gone too far in Mr. Marshall case. he
U.S can certainly criminalize the expenditure of money by U.S. citizens
in Cuba,?Mr. Sims said, æµut it doesn properly have any jurisdiction
over foreign sites that are not targeted at the U.S. and which are
lawful under foreign law.?Mr. Rankin, the Treasury spokesman,
said Mr. Marshall was free to ask for a review of his case. æ‘f they
want to be taken off the list,?Mr. Rankin said, hey should contact
us to make their case.?/p>That is a problematic system, Professor
Fitzgerald said. he way to get off the list,?he said, æƒs to go back
to the same bureaucrat who put you on.?/p>Last March, the Lawyers?Committee for Civil Rights issued a disturbing report on the OFAC list. Its subtitle: æŒow a Treasury Department Terrorist Watch List Ensnares Everyday Consumers.?/p>The
report, by Shirin Sinnar, said that there were 6,400 names on the list
and that, like no-fly lists at airports, it gave rise to endless and
serious problems of mistaken identity. æŠinancial institutions,
credit bureaus, charities, car dealerships, health insurers, landlords
and employers,?the report said, re now checking names against the
list before they open an account, close a sale, rent an apartment or
offer a job.?/p>But Mr. Marshall case does not appear to be one
of mistaken identity. The government quite specifically intended to
interfere with his business.That, Professor Crawford said, is a
scandal. he way we communicate these days is through domain names,
and the Treasury Department should not be interfering with domain names
just as it does not interfere with telecommunications lines.?/p>Curiously, the Treasury Department has not shut down all of Mr. Marshall .com sites. You can still find, for now, www.cuba-guantanamo.com.
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