US government blacklists domain names

[Carlos Afonso]

Of course, this does not concern .coms only. Domains under any gTLD may
be blacklisted. Below the report from the IHT.

--c.a.

======
http://www.iht.com/articles/2008/03/04/america/speech.php

U.S. pulls the plug on Europeans who want to visit Cuba
By Adam Liptak
Tuesday, March 4, 2008

Steve Marshall is a British 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 because of the
U.S. government.

The sites, in English, French and Spanish, had been online since 1998.
Some, like Cuba-Hemingway.com, were literary. Others discussed Cuban
history and culture, like Cuba-HavanaCity.com. Still others -
CiaoCuba.com and 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,"
Marshall said on the phone from the Canary Islands. "We thought it was a
technical problem."

It turned out, though, that Marshall's Web sites had been put on a U.S.
Treasury Department blacklist and, as a consequence, his domain name
registrar, eNom, which is based in the United States, had disabled them.
Marshall said eNom told him it did so after a call from the Treasury
Department; the company says it learned that the sites were on the
blacklist through a blog.

Either way, there is no dispute that eNom shut down Marshall's sites
without notifying him and has refused to release the domain names to
him. In effect, Marshall said, eNom has taken his property and
interfered with his business. He has slowly rebuilt his Web business
over the past 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.

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
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 U.S. companies must not only stop
doing business with the company but also freeze its assets, meaning that
eNom did exactly what it was required to do under U.S. law.

Marshall said he was uninterested in tourists who are U.S. citizens.
"They can't go anyway," he said.

Peter Fitzgerald, a law professor at Stetson University in Florida who
has studied the blacklist, 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,"
Crawford said.

The law under which the Treasury Department is acting has an exemption
that seeks to protect "information or informational materials."
Marshall's Web sites, though ultimately commercial, would seem to
qualify, and it is not clear why they appear on the blacklist.

Unlike Americans, who face significant restrictions on travel to Cuba,
Europeans are free to go there, and many do. Charles Sims, a lawyer with
the firm Proskauer Rose in New York, said the Treasury Department might
have gone too far in Marshall's case.

"The U.S can certainly criminalize the expenditure of money by U.S.
citizens in Cuba," 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."

Rankin, the Treasury spokesman, said Marshall was free to ask for a
review of his case. "If they want to be taken off the list," Rankin
said, "they should contact us to make their case."

That is a problematic system, 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 blacklist. Its subtitle: "How a Treasury Department
Terrorist Watch List Ensnares Everyday Consumers."

The report, by Shirin Sinnar, said 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 Marshall's case does not appear to be one of mistaken identity. The
government quite specifically intended to interfere with his business.

That, 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," he said.