BY VITO ECHEVARRÍA | Cuba News | Outbound links to more information added by Rob Sequin from HavanaJournal.com

Stephen Marshall, a British entrepreneur known as a pioneer of e-commerce ventures in Cuba, has been battling the U.S. Treasury Department for years.

A member of Havana’s expatriate investor community since the mid-1990s, is best known for his online Cuba travel booking site GoCubaPlus.com.

Along with that, Marshall — whose British Virgin Islands-based firms included Digital Panorama SA and Tour & Marketing International Ltd. — had over 100 other Cuba themed sites providing tourism-related information on Cuba. They also were aimed at driving Internet traffic to GoCubaPlus.com. In time, Marshall became a target of Washington’s efforts to unplug any Internet ventures involving Cuba. As far back as Fall 2004, Treasury’s Office of Foreign Assets Control added GoCubaPlus.com and related websites onto its list of Specially Designated Nationals (SDN). This meant individuals subject to U.S. jurisdiction were barred from doing business with any entity or person on that list.

In addition, U.S. groups that won OFAC authorization to visit Cuba could not make travel bookings through any of Marshall’s online ventures, but only via bricks-and-mortar entities like Marazul Tours of Weehawken, N.J. OFAC’s actions had the desired impact: a chilling effect among U.S. firms worried about being hit with fines and other legal actions. In a previous email to CubaNews, Marshall shrugged off the action against his company, stating “we don’t care about American travelers. They can’t go anyway.”

Marshall left Cuba in late 2006 and relocated to the Canary Islands. He told us his primary motive was “changes in the investment climate” in Cuba. But he didn’t arrive in Tenerife empty-handed.

The year before, Marshall had already started up his current Spanish venture Online Travel Management SL. “OTM began to assume [in February 2007] some of the functions the prior T+M had but, with a much broader destination portfolio than just Cuba,” Marshall noted in a recent email to CubaNews. “OTM also began providing the booking services for now infamous domain names gocubaplus.com, bonjourcuba.com and ciaocuba.com.”

Amazingly, two years after closing all Cuba operations and relocating to Spain, OFAC took more action against his online business by telling U.S.-based domain registry firms eNom and ICANN to disconnect the domain names previously put on its SDN list.

As a result, these firms — which effectively control the gateway to the Internet for any site with the .com domain — took GoCubaPlus.com and his other dot-com sites off the web, to avoid legal problems with OFAC.

“In 2008, the U.S. ordered eNom to block the DNS routing of these domains, effectively censoring them and affecting free speech,” Marshall complained to us.
When CubaNews first talked to lawyers knowledgeable about OFAC enforcement activities, Washington attorney Hal Eren — a former OFAC official — noted that Marshall’s business is exclusively dedicated to Cuba, “which makes him eligible for the SDN list.”

At the time, OFAC stressed that any foreign companies active in Cuba and doing business on behalf of Cuban entities were “nationals of Cuba” for the purpose of forbidding Americans from conducting business with firms like Marshall’s.

In a 2004 press release, OFAC cited Marshall’s representation of Cuban state entity Agencia Receptora Ecotur SA as its rationale for designating it a “national of Cuba.”

In response, Marshall hired an attorney to try to have his “.com” websites taken off of the SDN list. On May 29, 2009, he received a letter from OFAC stating that its “review process can be lengthy” and that the agency may request further details “before a final determination is made” regarding his case.

That was the last time he heard from OFAC. Frustrated with the agency’s silence, Marshall claims the U.S. government is carrying out a double standard regarding free speech on the Internet.

COICA THREATENS CUBA WEBSITES

“On Jan. 21, 2010, [Secretary of State] Hillary Clinton lambasted China, Iran and Cuba for Internet censorship,” he complained to us. “Yet OFAC, which is controlled by the executive branch, is still, in effect, censoring these websites, which mainly provide travel information on Cuba.”

Marshall claims that the danger with allowing OFAC to censor websites, by listing them on the dreaded SDN list, is that it lets Washington to do this to any other website whose content it finds offensive for political or other reasons. He pointed to Wikileaks as a potential target of future U.S. censorship activity, due to its having released thousands of sensitive NATO documents related to the war in Afghanistan.

At any rate, these days OFAC would be hard-pressed to assert that Marshall owns a firm which acts as a “national of Cuba.” His current travel agency, OTM, has gone multinational, having strategic agreements with local travel agents in as many as 150 countries including the United States, Canada, Cuba, Mexico, Panama, Spain and Venezuela. Marshall is also behind Travelucion — a network of travel bookings sites.

On those grounds alone, OFAC should strike out GoCubaPlus.com and related websites off its SDN list, he argues. “Our interest in Cuba as a destination is as important as the other countries we serve, but our rejection of Internet censorship surpasses any commercial objectives,” said Marshall, “and this is why the U.S. government’s censorship of our Cuba-related travel websites is so important to us.” However, even if OFAC were to suddenly comply with Marshall’s request, Congress may enact a law that could complicate his unfettered use of the web to promote his Cuba-related travel services.

In September, the Combating Online Infringement and Counterfeits Act (COICA) was introduced in the Senate Judiciary Committee. Its co-sponsors’ intention is to halt the worst global offenders of online piracy. It would give the U.S. attorney general new powers to shut down websites that use counterfeit content, in part by urging Internet service providers to go after websites that are on a Justice Department blacklist.

Although theoretically, such sites would have to be engaged in “infringing activities” before the government can intervene, Internet freedom advocates claim the bill might pave the way for a small group of government officials to arbitrarily shut down websites that are otherwise operating legally. This would include websites dedicated to Cuba. “It is supposed to be directed to copyright infringement, rather than the Cuba embargo, so it should not be used to alter OFAC’s authority in any way,” said Corynne McSherry, an attorney with San Francisco-based Electronic Frontier Foundation (EFF).

“This is not to say that it won’t be. As we know, one of the dangers of laws like COICA is that it can be misused if appropriate checks aren’t put in place.” Senior staff technologist Peter Eckersley of EFF told FoxNews.com last month that the COICA bill can go as far as ordering the shutdown of a domain name altogether — the very same problem that Marshall is now grappling with.

Passage of COICA will surely hamper Marshall’s efforts to restore his websites. More importantly, his legal battle will act as a red flag for non-U.S. companies that follow a business model similar to Marshall’s in pursuing any online travel venture involving Cuba.

Vito Echevarria, a New York-based freelance journalist, writes regularly for CubaNews about business, e-commerce, the arts and entertainment.