of Women of Zimbabwe Arise and Island Hospice and Bereavement Service, would be
disabled so that BlueHost would remain in compliance with U.S. Treasury Department
restrictions. 12
BlueHost, which had hosted Kubatana’s Web site, told Burrell that her site was in
contravention of section 13 of their terms of service, which read in part:
Sanctioned Countries presently include, among others, Balkans, Belarus, Burma, Cote d’Ivoire
(Ivory Coast), Cuba, Democratic Republic of the Congo, Iran, Iraq, former Liberian Regime of
Charles Taylor, North Korea, Sudan, Syria, and Zimbabwe. ‘Sanctioned Countries’ shall be deemed
automatically to be added to or otherwise modified from time to time consistent with the determination(s) of the government of the United States, and shall include all other countries with respect to which commercial activities are prohibited, embargoed, sanctioned, banned and/or
otherwise excluded by determination(s) of the government of the United States from time to time.
1. Each Sanctioned Country, all governmental, commercial, or other entities located therein,
and all individuals located in any Sanctioned Country are hereby prohibited from registering or
signing up with, subscribing to, or using any service of BlueHost.Com. 13
These are not the terms of service Burrell agreed to when opening an account with
BlueHost. Archived copies of the BlueHost terms of service, retrieved via Archive.org,
do not contain section 13—the section was evidently added sometime after February
8, 2008 (the last date BlueHost’s terms of service is available via Archive.org). 14 Burrell
was unaware of the change in terms of service until BlueHost alerted her that she
would need to remove her Web site or face its removal.
Burrell challenged BlueHost’s decision, not by arguing that she was in compliance
with their terms of service—she clearly was not—but by arguing that these terms
of service misrepresented the U.S. Treasury Department’s sanctions. The sanctions
Zimbabwe faces are targeted to the Mugabe regime, not toward all Zimbabweans. The
U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) is quite specific
about who the sanctions target:
Executive Order 13391 prohibits U.S. persons, wherever located, or anyone in the United States
from engaging in any transactions with any person, entity or organization found to: 1.) be undermining democratic institutions and processes in Zimbabwe; 2.) have materially assisted, sponsored, or provided financial, material, or technological support to these entities; 3.) be or have
been an immediate family member of a sanctions target; or 4.) be owned, controlled or acting on
behalf of a sanctions target. Persons, entities and organizations referenced in Annex A of the Executive Order are all incorporated into OFAC’s list of Specially Designated Nationals (SDNs). 15
It would be difficult for a company like BlueHost to evaluate whether Burrell and
Kubatana were engaged in undermining democratic institutions. Fortunately, OFAC
maintains a list of Specially Designated Nationals that U.S. companies are banned
from doing business with—checking against this list is significantly simpler.
Burrell forwarded the relevant OFAC sanctions documents to BlueHost’s abuse
department, sought assistance from the U.S. Embassy in Zimbabwe, and mounted an
Intermediary Censorship
75
disabled so that BlueHost would remain in compliance with U.S. Treasury Department
restrictions. 12
BlueHost, which had hosted Kubatana’s Web site, told Burrell that her site was in
contravention of section 13 of their terms of service, which read in part:
Sanctioned Countries presently include, among others, Balkans, Belarus, Burma, Cote d’Ivoire
(Ivory Coast), Cuba, Democratic Republic of the Congo, Iran, Iraq, former Liberian Regime of
Charles Taylor, North Korea, Sudan, Syria, and Zimbabwe. ‘Sanctioned Countries’ shall be deemed
automatically to be added to or otherwise modified from time to time consistent with the determination(s) of the government of the United States, and shall include all other countries with respect to which commercial activities are prohibited, embargoed, sanctioned, banned and/or
otherwise excluded by determination(s) of the government of the United States from time to time.
1. Each Sanctioned Country, all governmental, commercial, or other entities located therein,
and all individuals located in any Sanctioned Country are hereby prohibited from registering or
signing up with, subscribing to, or using any service of BlueHost.Com. 13
These are not the terms of service Burrell agreed to when opening an account with
BlueHost. Archived copies of the BlueHost terms of service, retrieved via Archive.org,
do not contain section 13—the section was evidently added sometime after February
8, 2008 (the last date BlueHost’s terms of service is available via Archive.org). 14 Burrell
was unaware of the change in terms of service until BlueHost alerted her that she
would need to remove her Web site or face its removal.
Burrell challenged BlueHost’s decision, not by arguing that she was in compliance
with their terms of service—she clearly was not—but by arguing that these terms
of service misrepresented the U.S. Treasury Department’s sanctions. The sanctions
Zimbabwe faces are targeted to the Mugabe regime, not toward all Zimbabweans. The
U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) is quite specific
about who the sanctions target:
Executive Order 13391 prohibits U.S. persons, wherever located, or anyone in the United States
from engaging in any transactions with any person, entity or organization found to: 1.) be undermining democratic institutions and processes in Zimbabwe; 2.) have materially assisted, sponsored, or provided financial, material, or technological support to these entities; 3.) be or have
been an immediate family member of a sanctions target; or 4.) be owned, controlled or acting on
behalf of a sanctions target. Persons, entities and organizations referenced in Annex A of the Executive Order are all incorporated into OFAC’s list of Specially Designated Nationals (SDNs). 15
It would be difficult for a company like BlueHost to evaluate whether Burrell and
Kubatana were engaged in undermining democratic institutions. Fortunately, OFAC
maintains a list of Specially Designated Nationals that U.S. companies are banned
from doing business with—checking against this list is significantly simpler.
Burrell forwarded the relevant OFAC sanctions documents to BlueHost’s abuse
department, sought assistance from the U.S. Embassy in Zimbabwe, and mounted an
Intermediary Censorship
75