That's because transfer of "intangible" goods, like information, is exempt from the regulations, but goods considered tangible, such as software, are not.
Since when is software tangible? Um, that's why it's called SOFTWARE.
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Feds blacklist 'illegal' Cuban Web sites
Published: July 8, 2005, 2:42 PM PDT
By Anne Broache
Staff Writer, CNET News.com
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Americans should think twice before booking a Cuban holiday through scores of travel Web sites that the U.S. government has deemed to be off-limits.
The U.S. Treasury Department has blacklisted more than 60 Cuba-centric sites, many maintained by a travel company called Tour & Marketing International. The last update to the list was published by the department's Office of Foreign Assets Control on June 30.
Certain travel-oriented Web sites made it to the verboten list because they provide easy access to Cuba for Americans who choose to break the law, the OFAC says. While visiting the sites may be permitted, downloading software from them probably isn't.
The reason lies in a section of federal law prohibiting people living under U.S. jurisdiction from doing business with those on the OFAC's list of "specially designated nationals," a category that also includes known terrorists, narcotics traffickers and rogue regimes, such as Iran, Iraq and Syria. (Many of the Cuba sites have been on the list since a December update.)
It's already illegal to go to Cuba without a special Treasury Department-issued license, typically granted based on educational or professional purposes. Tourism, according to federal guidelines, is not allowed. Once licensed, travelers must make travel arrangements with an organization chosen from a list of OFAC-approved agencies.
But if booking travel with an unauthorized dealer is already illegal, then is booking travel through a company also on OFAC's verboten list an even greater offense? Lawyers aren't sure.
"I don't know what penalties OFAC would propose in connection with the use of these sites," said Daniel Waltz, a Washington, D.C., lawyer who specializes in U.S. embargoes. "They might take the view that because they're listed (with OFAC), the penalties should be higher. They might take the view that we'll penalize you once for travel and impose a second penalty for use of the listed site."
"The problem, really, with the OFAC regulations and export controls generally is they weren't designed for the Internet," said Douglas Jacobson, a sanctions lawyer in Washington, D.C.
Several of Tour & Marketing's sites--with gocubaplus.com as the flagship--allow customers to make online reservations for flights, hotels, rental cars and tour packages in Cuba by traveling via a "third country." The site mandates that customers pay online and claims to be "not only Cuba's number one agency for American travelers, but also...able to serve all travelers--regardless of whether they have a Treasury-issued license," according to a Treasury Department press release.
The bulk of the sites under the company's ownership provide information about the geography, history and tourist attractions in a host of Cuban locales, from Baracoa to Varadero Beach. Ads--also operated by the company--rim each page and point to the e-commerce sites.
It doesn't seem to be a crime to check Cuban weather or read up on Ernest Hemingway's ties to the island at the sites. Signing up for free e-mail lists would also be permissible, said Treasury spokeswoman Molly Millerwise, provided that they did not include "interactive software." That's because transfer of "intangible" goods, like information, is exempt from the regulations, but goods considered tangible, such as software, are not.
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Using the sites to get money to Cuban companies would clearly be illegal, but lawyers suggested that enforcement may be a little fuzzier.
"Theoretically, yes, a person can be prosecuted and subject to civil or criminal penalties by OFAC for purchasing a ticket or doing any businesses with any of these Web sites," Jacobson said. "The reality is, the chances of them actually being caught is relatively slim, because there's really no way to track that information. The only way they would do it is to raid their offices, take the server, get e-mail addresses...But I don't think they would go that far."
Owned by Stephen Marshall, a British entrepreneur, Tour & Marketing takes a strong stance on Cuban trade relations, defending the country's sovereignty and calling on the U.S. and British governments to cease their embargoes. According to an online statement by the company, "The United States' aim in stepping up the blockade is to isolate Cuba, strangle it economically and create the conditions for external intervention." Attempts to reach Marshall on Friday were unsuccessful.
The current OFAC list also contains Sercuba.com, a PayPal-esque electronic money transfer service, and Cimex, a corporation that runs travel agencies but does not appear to engage in e-commerce. Another site, Cuba-shop.net, which OFAC added to the list in February 2004, furnishes a 403 Forbidden screen when called up.
