US shuts down Cuba travel sites
Campaign News | Tuesday, 4 March 2008
by Adam Liptak for The New York 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.
"I came to work in the morning, and we had no reservations at all," Mr.
Marshall said on the phone from the Canary Islands. "We thought it was a
technical problem."
It turned out, though, that Mr. Marshall's 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's 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 "how Web sites owned by a British
national operating via a Spanish travel agency can be affected by U.S. law."
Worse, he said, "these days not even a judge is required for the U.S.
government to censor online materials."
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's company had helped Americans evade restrictions on travel to Cuba
and was "a 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. "They can't 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 "specially
designated nationals" - said its operation was quite mysterious. "There
really is no explanation or standard," he said, "for 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's Office of Foreign Assets Control, or OFAC, control "over 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."
"OFAC 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 "information or
informational materials." Mr. Marshall's 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's case.
"The U.S can certainly criminalize the expenditure of money by U.S. citizens
in Cuba," Mr. Sims said, "but it doesn't 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. "If they want to be taken off the list," Mr. Rankin
said, "they should contact us to make their case."
That is a problematic system, Professor Fitzgerald said. "The way to get off
the list," he said, "is to go back to the same bureaucrat who put you on."
Last March, the Lawyers' Committee for Civil Rights issued a disturbing
report on the OFAC list. Its subtitle: "How a Treasury Department Terrorist
Watch List Ensnares Everyday Consumers."
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.
"Financial institutions, credit bureaus, charities, car dealerships, health
insurers, landlords and employers," the report said, "are now checking names
against the list before they open an account, close a sale, rent an
apartment or offer a job."
But Mr. Marshall's 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. "The 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."
Curiously, the Treasury Department has not shut down all of Mr. Marshall's
.com sites. You can still find, for now, www.cuba-guantanamo.com.
Online: Documents and an archive of Adam Liptak's articles:
nytimes.com/adamliptak.
http://www.nytimes.com/2008/03/04/us/04bar.html
