The Juventud Rebelde newspaper published an article on Tuesday March 4, 2008 in The New York Times that reveals how the United States has blocked Internet websites of an English enterprise with the domain “.com.” Juventud Rebelde adds some questions and answers that the American newspaper fails to raise concerning this extraterritorial enforcement of US legislation

Steve Marshall is an English travel agent. He lives in Spain and sells trips to Europeans who want to go to sunny places, including Cuba. In October, about 80 of his Websites 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,” said Mr. Marshall by 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 US Treasury Department blacklist and, as a consequence, his American domain name with the server “eNom Inc.,” had been disabled. Mr. Marshall said eNom told him that it had done 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 disputing 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 registry. His servers, he said, have been in the Bahamas all along.

Mr. Marshall said he did not understand “how Websites owned by a British national operating via a Spanish travel agency can be affected by US law.” Worse, he said, “these days not even a judge is required for the US 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.

(Taken form The New York Times, March 4, 2008)

Footnote for The New York Times

The New York Times is right in calling the decision of the United States to enforce its policy toward Cuba on the Internet “scandalous.” It is an excellent article but leaves out key information that will help understand why the censorship of websites with the suffix .com, the most widely used on the Internet, is just the tip of the iceberg in a wave of aggression against Cuba and the world Internet.

—How many domains with the suffix .com related to Cuba are there in the black list of the US Treasure Department?

—Thoroughly and patiently revised, the OFAC list comprises 577 “damned” enterprises all over the world and 3,719 .com domains have been blocked on the Internet without a previous warning to their owners. For an idea of what it means, one can look at the most recent register of domains in Latin America (www.latinoamericann.org). There one can find that Cuba has 1,434 websites under the domain .cu. In other words, the United States has blocked almost three times as many websites as the number Cuba has registered under its own domain.

—What is eNom, the company that blocked Mr. Marshall´s websites?

—eNom Inc is he second largest domain registry company in the world, and is accredited by the ICANN (Internet Corporation for Assigned Names and Numbers), an independent organization under which the Internet is organized. The ICANN designates the names and the numbers of domains, which are equivalent to postal districts on the Internet.

—Can the United States block the entire Internet?

—This is new evidence that the United States not only controls access to the Internet of its citizens, but the access of all users to the world Internet. Although there is an abundance of rhetoric about freedom on the Internet, ICANN has to comply with the US Department of Commerce and American legislation. Any legal claim on property rights must be taken to an international court. However, eNom not only responded to a decision of the American government that violates the legislations of other countries, but it did so without a previous warning to the companies and people affected, as was noted by The New York Times. This fact shows that the United States controls the main international servers and can block anything on the web at will, even without the pretext of terrorist aggression.

—Under what law does the United States violate the sovereignty of Cuba and other countries on the Internet?

—The so-called Torricelli Act, passed in 1992, authorizes the connection of Cuba to the Internet via satellite with the condition that every megabyte (range of speed connection) be contracted with an American firm and that sites have to be approved by the Treasury Department. It established limitations on transactions and set extraordinary sanctions —like fines of $50,000 USD for each violation— for those either in or outside the United States. This has been rigorously enforced and OFAC, which has gradually expanded its black list until the extremes recently disclosed by the American newspaper.

—What can be done?

—The World Intellectual Property Organization (WIPO) established that any person in the world can present a lawsuit with the name of a domain registered under the suffixes .com, .net and .org. According to Item 4 of the policy of ICANN, a case can be taken to an international arbitrator in instances of abusive registries of the name of a domain or its censorship, circumstances that will have to be proven through the lawsuit. Thanks to this article of The New York Times and the opinion of specialists consulted by the author, there are 3,719 possible lawsuits for censorship by the United States government in sight. Which one will begin first?