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More Cuba than Cuba

Thu, 6th March 2008, 17:50

The New York Times Tuesday had a disappointing and frightening story titled, "A Wave of the Watch List and Speech Disappears". The article tells the story of  Steve Marshall, an English travel agent who made the mistake of using a US firm to register his domains. Mr. Marshall lives in Spain and sells trips to Cuba through his websites. In October, 80 of his domain names stopped working. eNom

Enom Inc., his registrar, had disabled them after finding out his sites were on a Treasury Department blacklist. They did this without notifying him, and will not release the domains to him.  From the article:

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.

To recap: A British National who operates through a Spanish travel agency selling trips to Cuba to Europeans gets blacklisted by the US Treasury Department, and since his domain names are registered through a US company, they are obligated to freeze his assets, specifically the domain names. This was done to Mr. Marshall with no court proceedings. Welcome to the land of the free, the home of the brave. Isn't this type of thing the rationale for the Cuba embargo? Apparently it is okay for the US to act this way, yet we have a different standard for the rest of the world.

A Lawyers Committee for Civil Rights report on the Office of Foreign Asset Control (OFAC) list (pdf) is disturbing to read. It reports that over 6,000 names are on the list, and that even sharing a first or middle name with someone on the list can lead to consumer transactions either being delayed or denied. The report tells the story of a man, Tom Kubbany, whose middle name, "Hassan"  was an alias for Saddam Hussein's son. This man was born in Michigan, had never been to Iraq and was thirty years older than Hussein's son. Nevertheless, his credit report had an alert attached to it and this caused his mortgage broker to stop returning his calls. The report goes on to say that even though there are many false positives, there is no procedure to permanently distinguish yourself from the person on the list. You get to go through the procedure of clearing your name for each and every transaction. That is if you are fortunate enough to be given the reason for your treatment. Some transactions are ended simply because the lender does not want to bother with determining if the person is actually on the list or not. There is no redress mechanism in place for mistakenly flagged individuals. No one in the United States is allowed to do business with anyone on the list. Period. In 2003 the Treasury Department expanded the reach of the laws, so even if you didn't "willfully" violate the law, you were still subject to civil penalties. If you sell a pack of gum to someone on the list, you are liable. The law is sweeping in scope and there are no limits in place on the screening. 

The Register has covered this as well. Their well written and clever (it is the Register, after all) piece mentions that Canadian Climate Scientist Pierre Boileau of Montreal is on the OFAC list, under the Cuba heading, with no explanation. Maybe climate science = terrorism to the Bush Administration. Also mentioned it the practice of outsourcing compliance, where private companies manage their own version OFAC database and sell it to banks and institutions to help them minimize risk. As The Register says: "It is, for all intents and purposes, the outsourcing of the blacklist, to companies accountable to no one." These are Orwellian times.

The lesson in all of this? You take a risk if you register your domain with a US firm. Sadly, this will only continue the push business away from the United States. I hope people will wake up and demand some clarity and common sense in US law. The US legal system is a cancerous monster that continues to grow unabated.Write your congressman or senator. Write your potential or current registrar, telling them of your concerns. We need to work together to stop this insanity.  The US government reminds me of a line from a Jane's Addiction song, "You know the man you hate? You look more like him everyday!" Using repression to fight repression. We need a change.