[governance] A Wave of the Watch List, and Speech Disappears

[Riaz K Tayob]

 A Wave of the Watch List, and Speech Disappears
    By Adam Liptak
    The New York Times

    Tuesday 04 March 2008

    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.
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