Let's see this Treasury Department list again... Aiman Al-Zawahiri....Radovan Karadzic....Alexander Lukashenko.... ah, Tour & Marketing International.

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?

Pierre Boileau, come out, come out, wherever you are

The "Specially Designated Nationals" (SDN) list can be found online, and consists largely of internationally known drug dealers, top flight terrorists, and political strongmen and their cronies. It can be cross-referenced by sanction program or by national origin, such as Burma, or, of course, Cuba.

Cuba, in fact, is the only country with websites even listed - and none of those were owned by or affiiated with the Cuban government. They are all (or were) owned by T&M International. It is also the only country with travel agencies listed, including agencies based in Germany, Mexico and Canada. (Dodgy South American airlines don't count.)

One of the troubling issues raised by the OFAC list is that many of the websites owned by T&M are purely informational, such as those listed above, and purely informational websites are supposedly exempt from the sanctions regime. They shouldn't be there in the first place, whether the Cuban embargo is a waste of time or not. And what about individuals such as Pierre Boileau of Montreal (er, the Canadian climate scientist?) and Alfred Stern of Prague, who are listed as SDNs under the Cuba section without any of the usual aliases associated with terrorists or international criminals - just names on a list, residents of American allies. How were they put on? How do they get off, if they shouldn't be there? Who knows?

Whether it's an individual with an uncommonly common name, such as Alfred Stern, or an informational website, such as www.cuban-baseball.com, the procedure for removal is the same - throw yourself at the mercy of the same bureaucrats who threw you on the list in the first place, and hope they believe you. Good luck, friend. Steven Marshall chose to transfer his domains to registrars not under the thumb of the American government, mostly in the .net top level domain.

Here comes the free hand of the market - the outsourcing of the blacklist

Those thoughts are even less comforting in light of the direction the United States is heading as far as enforcement of financial regulations goes. One of the most controversial trends in American government the last decade has been the outsourcing of services traditionally performed by the government.

As increased pressure, mostly via the Patriot Act, has been put on private industry to enforce government laws and regulations (they can be severely penalized if they do not), banks and other institutions that fall under the jurisdiction of OFAC are increasingly turning to private companies for "compliance solutions" to help them navigate OFAC regulation and supervise their transactions.

A little-known by product of this trend has been the development of private databases that go above and beyond the SDN list supplied by the government, which are sold to financial institutions to insure that absolutely no shady transactions will ever put the bank at risk.

It is, for all intents and purposes, the outsourcing of the blacklist, to companies accountable to no one. Accuity Solutions, the world leader in this regard, has parlayed its stranglehold as the official registrar of American bank routing numbers into a nice business selling privately developed lists of "Politically Exposed Persons" (PEPs) and SDNs to financial institutions concerned with potential exposure to illegal transactions. As any American who has ever had to deal with a faulty credit report knows, trying to get a private company to correct misinformation can be like dealing with a communist bureaucracy.

Fortunately, the court system has yet to be privatized, right? Well, that didn't help Steven Marshall, because Enom pro-actively seized his domains and cut him off after a phone call from the OFAC - there was no legal proceeding at all. Not even the usual draconian asset forfeiture proceedings - at least according to federal court filings at cases.justia.com and the New York Times. Nothing.

Of course this is Cuba, and the Bush administration has drawn an even harder line than its predecessors in this regard, and he won't be around much longer. Will it matter? The bureaucracy, after all, is forever. ®