RACHEL MARTIN, host:
So here's a story about a British travel agent based in Spain, Steve Marshall, who sells Cuban vacations to Europeans. He runs a bunch of websites, some selling travel, some just informational. Then in October of last year, 80 of them were shut down by the U.S. Treasury Department. Stay with us here, because it's part of a fascinating story by Adam Liptak, in the New York Times, that we're ripping off from the headlines.
Seems the Treasury Department blacklisted Marshall's websites, saying the services they provided violated U.S. trade sanctions with Cuba. This forced his domain name registrar to shut down the sites. So how does the U.S. government have authority over a British guy living in Spain, operating websites hosted on servers in the Bahamas? Well, the "dot com suffix" in his web address is operated by the American company VeriSign, and the domain name registrar for Marshall's sites is based in Washington State. So, they arguably fall under U.S. government jurisdiction. The U.S. says the travel agent has helped Americans circumvent U.S. travel restrictions to Cuba. The travel agent says that's just not true. After all, why would he cater to U.S. nationals when they can't legally go to Cuba anyway? We wanted to know more about this story, so we called up Internet law expert Susan Crawford to break it down for us.
MARTIN: So, first, let's talk about this. The Treasury Department has been shutting down websites with ties to, or in some cases, even just referencing Cuba. On what grounds? What's the argument for that?
Professor SUSAN CRAWFORD (Visiting Professor, Yale Law School; Professor, Benjamin N. Cardozo School of Law): Well, here, this is an instance of the Cuba Sanctions Program, so any site that is believed to be violating the idea that we're trying to isolate the Cuban government and economically deprive it of U.S. dollars. So no products or services are allowed to be exported from U.S. to Cuba. So any site that looked like it was dealing in, or assisting in, the sale of goods or commodities to Cuba would be viewed by the Treasury as violating the sanctions. And so here, the business that's being done is the registration of a domain name for a company that the U.S. Treasury Department believes is assisting Americans in traveling to Cuba.
MARTIN: But this specific case has to do with a European, right? It's a third country, a third party that's being victimized, quote, unquote, "by this law."
Professor CRAWFORD: You've got an Englishman who lives in Spain, and his servers are actually in the Bahamas, and he claims that he doesn't work with Americans because they can't travel to Cuba. Not worth his time. So the only contact with the United States, from his point of view, is that he registered a domain name with a U.S.-based company.
MARTIN: And is this the first time we've heard of a case like this? I mean, they must have been happening.
Professor CRAWFORD: No. There have been lots of cases like this over the years. They don't usually rise to public attention. This one did because the New York Times got hold of the story, and it seems strange that without any judicial intervention, and without any real appeal, you could be sent into darkness as a website.
MARTIN: So what does this signify? Is this an illustration of a more sweeping control by the Treasury when it comes to enforcing in this way? I mean, a domain name that doesn't exactly sound like business, that doesn't qualify as business. But they would probably object.
Professor CRAWFORD: Well, there are two ways of looking at this. You've got a U.S.-based business providing a service. And it may be a slightly less tangible service than we're used to. It's not like, for example, importing cigars, but it is providing a service to a Cuban national - or so the Treasury Department believed. And so, the fact that it's a domain name doesn't change the analysis from the Treasury Department point of view.
This is just a special case of a much larger issue, which is that sovereigns have power, have tanks and guns, with which they can go after information resources located in their country on the Internet. So even if the site itself isn't targeted at the United States, isn't being hosted in the United States, the fact that there's a U.S. company, the Treasury can act. They can plunge that site into darkness, gives our sovereign power. But there are lots of other sovereigns around the world doing similar things.
MARTIN: And what about other relationships, other websites not related to Cuba, but perhaps are referencing other countries that we have perhaps a not-friendly relationship with?
Professor CRAWFORD: We've got sanctions programs in place with Burma, Iran, North Korea, the Congo, lots of areas. Most of the things that go on the list from the Treasury Department aren't domain names. Usually, it's actual businesses or assets inside the United States that the Treasury Department wants frozen. What's special here is that a domain name is really on the line between a good or a service, and just an information flow. A domain name is much closer to something like a telecommunications line or piece of information, and those things are carved out of the sanctions program because we want to continue communicating with Cuba, North Korea and Burma, but this odd thing of a domain name is right on the line.
MARTIN: But it's not a business transaction. It's a conduit for business.
Professor CRAWFORD: Yes, that's an argument. Although the U.S. registrar acted appropriately in freezing the name because they have, automatically, taken money from someone to register a domain name, and that's a service.
MARTIN: OK.
Professor CRAWFORD: So there's an entry in a database that's been paid for. That's the service here.
MARTIN: Talking about other businesses that get on this blacklist, how do you get off once you're on? Is it over?
Professor CRAWFORD: That's mysterious, and that's the overall problem here. The Treasury acts as prosecutor, and judge, and appeals court. You'd have to go back to them and ask for your name or asset to be removed from the list. And it's unclear to me, hunting through the website, how you'd get that done.
MARTIN: Is this legit on behalf of the Treasury Department? Is this something that is within their bailiwick? Within their purview to do?
Professor CRAWFORD: Yeah. We've got a very broad sanctions program. They view this as a service to Cuba, and so automatically, without going to a judge, they can just put this name on a list and have it blocked. What's interesting here is that it took almost three years for the registrar to hear about the sanction. And they only heard about it from another blog. So the Treasury Department isn't doing a good job at getting out the news about its own sanctions. But once the registrar heard that the name was on a list, they blocked it.
MARTIN: But they were clearly aware of the sanctions the U.S. has against Cuba, they just didn't think that its business qualified? Or...
Professor CRAWFORD: Based on the information the registrar had, it's unclear to me how they would have known that they were dealing with a Cuban company, or dealing with a Cuban company that serviced Americans. These are all automatic transactions. The address of the registry - the registrant here is someone who is sitting in Spain.
MARTIN: So then - so their argument is we had no clue.
Professor CRAWFORD: We have no clue, but they have to comply, because the penalties are fierce. You can have prison time, big fines for a U.S. company that violates the sanctions program.
MARTIN: Susan Crawford, professor - visiting professor at Yale Law School. Internet Law Expert. Thank you very much, ma'am.
Professor CRAWFORD: Thank you.
ALISON STEWART, host:
Coming up on the Bryant Park Project, the cool kids of the Internet. That's right, the most popular, or the most-read, or the most-emailed, or most-viewed, all of those lists, you find them online. We call it The Most, and it is coming up next. You'll find out what the newest sins the Vatican has added to that long list.
MARTIN: Also we're going to check in with our friend Andy Langer. He's Esquire's music critic and he's down in Austin, Texas, speaking to cool kids. That's where they're all at this week. We're going to talk to him about new music, what's being released this week, and what's cool and fun in Austin. That's coming up on the BPP from NPR News. Transcript provided by NPR, Copyright NPR.
