The New York Times has a story today on one Steve Marshall, a British citizen living in Spain and running a Cuba travel agency. It seems that Mr. Marshall had 80 of his websites shut down by his U.S. registrar eNom after eNom got a call from the folks at the Office of Foreign Assets Control (“OFAC”). That agency had put Mr. Marshall’s websites, including www.cuba-hemingway.com on the SDN list. For the insatiably curious, a copy of www.cuba-hemingway.com is available via The Wayback Machine. It appears that these sites were mostly feeder sites to promote his Cuba-centric travel agency.

The NYT piece has much wringing of hands about the plight of Mr. Marshall, and although I am a vocal opponent of the Cuba sanctions, I’m not terribly inclined to join in the sobfest. Anybody running a business like Mr. Marshall’s would have to be, well, stunningly naive to think that they should register websites for that business with a U.S.-based registrar. It would rather be like trying to open an “adult” DVD store in Tehran and then being surprised when the religious police burn it down.

But one thing in the story caught my eye and is worth further analysis. eNom is refusing to release the domain names back to Mr. Marshall because, not surprisingly, the domain names are considered blocked property under the Cuba sanctions program. Of course, eNom has an agreement with the Internet Corporation for Assigned Names and Numbers (“ICANN”) where eNom agrees to abide by ICANN’s “Policy on Transfer of Registrations between Registrars.” That policy sets forth the only circumstances under which a domain registrar may refuse to transfer a domain name to another registrar, such as a court order or evidence of fraud. The policy does not permit withholding that transfer based on a claim that the domain names are blocked property under OFAC’s regulations.

In such cases Marshall would be entitled to avail himself of ICANN’s “Registrar Transfer Dispute Resolution Policy” to obtain an arbitral order requiring eNom to transfer the domain name and, if eNom still refused to do so, ICANN could terminate eNom’s status as a domain name registry. But here’s the rub: ICANN either can’t or won’t do that because it is a California non-profit corporation and is itself subject to the Cuba sanctions.

This, of course, resurrects the dispute that the rest of the world had in allowing the U.S. so much control over the Internet name-assignment process in the first place. The Department of Commerce, which originally controlled the process, sought to alleviate these concerns by handing the process over to ICANN as a private company. But if the U.S. can use its control over the Internet name assignment process to try to bootstrap the scope of its Cuba sanctions to cover a non-U.S. citizen operating a web business with its offices and servers outside the United States, this could well re-ignite the international debate that this critical part of the Internet should be turned over to an international organization.

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