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

[Carlos Afonso]

Fine, there might be horrid cases elsewhere, but there is no 
justification for yet anoter violation of rights by the US government 
regarding the Internet space. BTW, the servers were not in US territory, 
and the company is based in Spain.

As I said, anyone who purchases a generic domain name is a risk-taker 
regarding the USA's "reasons of State".

Verisign, through its subsidiary in Brazil, is doing an aggressive 
campaign here. It should put a footnote in its marketing pieces (in not 
so small letters) that there are risks of this kind involved in 
acquiring a generic domain name. Cuba is frequently visited by 
Brazilians, and several travel agencies here use a .com domain, quite 
certainly without knowing risks such as these.

frt rgds

--c.a.

Suresh Ramasubramanian wrote:
> But then there are similar issues elsewhere. Try hosting neo nazi content on
> a domain registered with a registrar / hosted with a provider in Germany,
> just for example.
> 
> Indymedia - cited previously - was a request from Italian law enforcement,
> through their MLAT with US law enforcement.
> 
> It would be utterly impractical to insist that the Internet operate in a
> vacuum.
> 
> This circleid thread has a much more informed discussion - the comment from
> John Berryhill below ..
> 
> http://www.circleid.com/posts/83420_controversial_domain_names/
> 
> <quote>
> 
> US law prohibits US companies from engaging in direct or indirect commerce
> with Cuba.  These and other domain names were put on the OFAC list some time
> ago, and in fact I notified Enom and other registrars by posting the update
> to the ICANN Registrar Constituency list.
> 
> IMHO, the US embargo is ineffective and silly, but that doesn't change the
> very straightforward and widely known fact that a US company is going to be
> subject to that embargo.
> 
> <end quote>
> 
> 	srs
> 
>> -----Original Message-----
>> From: Carlos Afonso [mailto:ca at rits.org.br]
>> Sent: Thursday, March 06, 2008 9:15 PM
>> To: governance at lists.cpsr.org; Riaz K Tayob
>> Subject: Re: [governance] A Wave of the Watch List, and Speech
>> Disappears
>>
>> Our discussion on net neutrality (and on freedom of expression, of
>> course) ought to take issues such as this into account as well. Every
>> gTLD domain name holder might be at risk of having their basic rights
>> violated. I wonder what the US government could (or will) do with
>> "suspicious", in their view, .org domain names...
>>
>> It is a scandal, says Susan Crawford, but violations of this kind will
>> continue, in the name of "State security", wherever the affected
>> servers
>> are, wherever the domain name holders are...
>>
>> In the ongoing debates about Icann internationalization and its current
>> vulnerabilities, some defend the idea that gTLDs should be left as a
>> problem of the USA -- unfortunately, people outside the USA, being
>> risk-takers, have purchased millions of these domains, so the issue
>> goes
>> far beyond the US borders.
>>
>> --c.a.
>>
>> Riaz K Tayob wrote:
>>> 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.
>>> ____________________________________________________________
>>> You received this message as a subscriber on the list:
>>>     governance at lists.cpsr.org
>>> To be removed from the list, send any message to:
>>>     governance-unsubscribe at lists.cpsr.org
>>>
>>> For all list information and functions, see:
>>>     http://lists.cpsr.org/lists/info/governance
>>>
>>>
>> ____________________________________________________________
>> You received this message as a subscriber on the list:
>>      governance at lists.cpsr.org
>> To be removed from the list, send any message to:
>>      governance-unsubscribe at lists.cpsr.org
>>
>> For all list information and functions, see:
>>      http://lists.cpsr.org/lists/info/governance
> 
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.cpsr.org
> To be removed from the list, send any message to:
>      governance-unsubscribe at lists.cpsr.org
> 
> For all list information and functions, see:
>      http://lists.cpsr.org/lists/info/governance
> 
> 

____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance