US Govt. shuts down European owned websites

[Stormlight]

Steven Marshall, the owner of T&M and affiliated websites such as www.cuba-hemingway.com, www.cuba-oldhavana.com, and www.cubanculture.com, is a British travel agent with an interest in Cuban culture who sells tours to Cuba to European tourists. Unfortunately for Mr. Marshall, the American government has little sympathy for those who don't share its hardline views of the Caribbean nation. Imagine his surprise when he woke up one day and rubbed his eyes clear - unbeknown to him, his company had been blacklisted by the American government, and his hosting company Enom had shut down all his websites.

The American government's obsession with all things Castro has led to some of the most restrictive trade sanctions in the world. Since 1963, the Office of Foreign Asset Control (OFAC) - an arm of the Treasury Department that enforces asset forfeiture decrees against international drug king pins, terrorists and assorted political undesirables - has robustly asserted its authority to seize assets of Americans or American companies that in any way, shape or form provide hard currency to the Castro regime.

But as the New York Times reported yesterday, the Treasury Department is taking an even more expansive view of its jurisdiction over the Cuban embargo, if the T&M case is indicative of things to come.

The case also threatens to renew lingering concerns in the internet community over continued American dominance of the internet. Marshall is a British citizen living in Spain. He sells tours to tourists in Europe, which imposes no restrictions on travel to Cuba. His servers were located in the Caribbean.

His only proven ties to the United States were domain registrations through ICANN-approved registrar Enom and his use of the .com top level domain, whose registry is, for all intents and purposes, owned by Verisign, an American company with close ties to the American government. The move by OFAC has troubled American experts on internet law. Should registration through an American registrar or registry really justify American jurisdiction and the forfeiture of websites which are not even hosted on American shores?

http://www.theregister.co.uk/2008/03...cuba_websites/

Troubling. Maybe it's time to find an alternative to the current internet DNS system. It cannot be controlled by one country.

[Watser?]

Ah yes, that would be that freedom of speech thing that they keep spreading around the world.

This will work against the US in the long run, I think. In the end Europe (and South America and other countries) will work around them.

[Farren]

Its funny how a year ago people were energetically arguing that American control of registration had no practical risks in terms of Internet liberties, even as many people were warning of exactly this risk. The situation cannot remain as it is. The Chinese have even threatened to split away their entire Internet infrastructure and establish an alternative hierarchy, meaning that you'll have to set up a second "Internet" configuration for browsing the Chinese Internet. And the Bush admin, as of when I last looked into this debate (a year ago) was pushing for more, not less control. Fucking idiots don't have a clue.

[Caligulette]

No, they have too many clues, really- all pointing toward further curtailing of civil rights.

[California Tanker]

Should registration through an American registrar or registry really justify American jurisdiction and the forfeiture of websites which are not even hosted on American shores?

I don't see that as being any different to a company which is incorporated under American law, but happens to have Germany as its base of operations.

If he went to a .co.uk domain, I don't see the US having any great say over the issue.

NTM

[Adam]

Remember how "deeply distressing" it was last month when Pakistan managed to take YouTube down for a few hours by playing with DNS? Technically, this is the exact same thing. Cue overheated hand-wringing from all the same sources...

[seebs]

Originally Posted by California Tanker

I don't see that as being any different to a company which is incorporated under American law, but happens to have Germany as its base of operations.

If he went to a .co.uk domain, I don't see the US having any great say over the issue.

NTM

Well, that's sort of the problem.

If he had a .com.us domain, this would be reasonable.

The US has previously claimed it is not asserting ownership of .com/.org/.net.

It should not be taking actions that imply jurisdiction over domains run outside the US.

[California Tanker]

Hmm. Up until now, I've always assumed that .com was us, and .country was non-us. Have never heard of a .whatever.us before.

NTM

[seebs]

Originally Posted by California Tanker

Hmm. Up until now, I've always assumed that .com was us, and .country was non-us. Have never heard of a .whatever.us before.

NTM

While .com was originally primarily US, there's no inherent reason it has to be.

If we want a US-only domain hierarchy, we have one -- .us. It already has a full population of things like .mn.us, .ca.us, .vt.us, and so on.

I don't see any reason to treat .com/.org/.net as US-only; maybe they sort of were historically, but the time has long since come to recognize that these are global things, not local things, and to use our local hierarchy if we really want local.

[California Tanker]

I have to say, I've never heard of a .ca.us site. Who uses it?

NTM

[Naru]

Originally Posted by California Tanker

I have to say, I've never heard of a .ca.us site. Who uses it?

NTM

A google search for ".ca.us" shows a number of sites, though not all of the hits use it.

[viscousmemories]

From the NY Times:

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.”

And a long list it is!

Fuckin' America.

[Stormlight]

Originally Posted by California Tanker

I don't see that as being any different to a company which is incorporated under American law, but happens to have Germany as its base of operations.

If he went to a .co.uk domain, I don't see the US having any great say over the issue.

NTM

Indeed. So freedom of speech is no longer relevant?

[California Tanker]

What does freedom of speech have to do with anything?

For better or ill, the US embargoes Cuba. Which means that any business operating in the US has to follow the policy, or pay the penalty. People can say whatever they want, as long as they don't do business with Cuba.

who sells tours to Cuba to European tourists

It's more than just talking about it.

NTM

[fragment]

Does registering domains with a US based registry count as operating in the US? Seems to be stretching the bounds of the concept to me. Seems different to being incorporated under US law as well.

[California Tanker]

Would certainly qualify as doing business in the US. Even if both the client and salesmen were in Europe, the transaction is basically routed through the US. At the very least, the 'carrier'/registrant would be American and subject to US governmental pressures.

NTM

[mickthinks]

What does freedom of speech have to do with anything?

I like your analysis, CT. It seems to me that it is the US company, eNom, that has had to comply with the US embargo. Steven Marshall's business is with Cuba, among other places, and eNom has been informed that they must stop doing business with Marshall's company.

Since the business they are doing is supplying Marshall with his web presence, the consequence of withdrawing their business is that his business also appears to have been withdrawn. Thus it looks as if the US government has imposed its embargo on him directly.

It has this to do with free speech. The internet is, first and foremost, a means of communication. When the US embargo results in the closure of a website, that is an infringement of the website users' freedom of speech. The fact the company using that website was also involved in economic activity with Cuba is, when you examine it, incidental. The website was just talk, albeit talk about economic activity with Cuba.

If the right to free speech is taken to include a right to run a website if you so choose (it'll take a lot to persuade me that it doesn't) then I think the first amendment requires ISPs in the US be granted special exemption from at least some of the rules enforcing the economic embargo of Cuba.

Mick

[Farren]

The opposite situation is also quite interesting. US embargos apply to non-US branches of companies that want to operate in the US. I read recently about a hotel chain that was forced to eject Cuban diplomats from a Swedish hotel because of the US embargo. I wonder if this has ever caused a conflict with local law? I mean, I can imagine that such actions might violate trading conditions in some other countries, making it impossible for the transnational to comply with the law of both lands.

I'm not, in principle, opposed to all such far-reaching laws. EU laws intended to prevent transnationals from fostering corruption in places like Africa, for instance, allow EU prosecutors to nail Euopean companies in Europe for corrupt practices elsewhere. But in the case of the EU law, the intention is that you simply don't do business in places where doing business benefits only the corrupt members of a kleptocracy rather than the locals. In the case of US embargo laws applied in the EU, its more a case of making it difficult to do business with the US' own allies, over a disagreement in how to conduct international diplomacy. Another, similar situation, is the whole privacy law conundrum. The EU member states' privacy laws are waaay more stringent than most places, making it difficult to even transfer client information, within the EU, IIRC. I should imagine that makes the global provision of services quite complicated.

[Stormlight]

Originally Posted by fragment

Does registering domains with a US based registry count as operating in the US? Seems to be stretching the bounds of the concept to me. Seems different to being incorporated under US law as well.

Agreed. And that is why the whole Internet DNS system needs to be re-thought and taken out of American hands and fast.

[California Tanker]

Originally Posted by mickthinks

The fact the company using that website was also involved in economic activity with Cuba is, when you examine it, incidental. The website was just talk, albeit talk about economic activity with Cuba.

At first blush, the vast majority of any economic activity inherently involves talking. Step 1 of a legal agreement/contract is an offer to sell and there is little dispute that those can be regulated.

NTM

[mickthinks]

Originally Posted by California Tanker

At first blush, the vast majority of any economic activity inherently involves talking. Step 1 of a legal agreement/contract is an offer to sell and there is little dispute that those can be regulated.

NTM

Wouldn't quibble with you there, CT. I'm not saying that any and every activity that involves speech is protected by the first amendment, though, so I don't see the relevance, sorry!

Mick

[fragment]

Farren's example of the hotel chain seems the most analagous situation mentioned yet, although even then we're talking about a US-operating company that supplied a service directly to the Cuban government, not to a third party located internationally that also does business in Cuba.

Here's a question: registering a domain name is nothing more than paying someone to have you on a list that connects a string of characters to IP addresses and providing that information to others who request it.

Any server that resolves DNS requests is also providing exactly the same information, and if it is keeping a cache (i.e. nearly always) it is in fact also keeping exactly the same information as the registry. If we accept that the registry was breaking the embargo, do we also conclude that every DNS server situated in the US was also breaking it every time it resolved and cached requests to those domains? And that these servers would be doing so even if this travel agent had his sites on .co.uk domains?