Internet Domain Censorship

The High Court has ruled that decisions made by Nominet's dispute resolution service (DRS) may not be appealed in the courts, in cases concerning accusations of abusive domain name registration.

The court held that the registration contract did not leave a role for the court, as abusive registration is a term that only has meaning within the context of the Nominet DRS and cannot itself be the cause of legal action before the courts.

The judgement overturns the ruling of the Patents County Court in a dispute between Michael Toth, who registered the domain name emirates.co.uk in 2002, and the Emirates airline, which later sought and gained possession of the domain name through Nominet's dispute resolution service.

Toth successfully appealed to the Patents County Court for a declaration that the domain name was not registered abusively. However, the case was subsequently appealed in the High Court, which last week ruled that the such cases cannot be appealed in the courts.

The DRS and Procedure put in place a regime in which the question of abusive registration is one for, and only for, the Expert appointed under the DRS.

The UK's Serious Organised Crime Agency (SOCA) has seized the domain of a popular music blog in the style of a U.S. Department of Homeland Security domain name seizure.

The RnBXclusive blog in question was running from a .com domain name, seemingly outside of British jurisdiction. Rackspace hosted the content in question, and its domain was registered with GoDaddy; both are U.S. companies. The site now just carries a threatening page including the message:

If you have downloaded music using this website you may have committed a criminal offence which carries a maximum penalty of up to 10 years imprisonment and an unlimited fine under UK law.

In speaking to GoDaddy, a spokesperson confirmed that the company had a presence in the UK, as has Rackspace. This seems to be enough for the UK authorities to demand a domain take down.

Nominet has been suspending domain names at the mere request of law enforcement agencies, without a fair trial. While most of these sites have been dodgy, some should not have been removed. This loophole in the justice system could be exploited and mistakes are inevitable, leading to deliberate or accidental censorship.

Despite ORG's demands that transparency and evidence remain the foundation of any policy, law enforcement agencies have refused to budge. They say they lack the resources and powers to use the courts.

ORG, ISPA and LINX all announced that they were unable to support the initial Nominet Issue Group statement. It is incredibly important for justice to be transparent and open to all.

Nominet have asked the Issue group for a further meeting, where ORG will explain why using the courts is a vital safeguard.

Search engines asked to help with copyright censorship

In addition to the discussions about a new, faster website censorship plan, Ed Vaizey is now also hosting roundtables between copyright owners and search engines. The aim is to tell search engines to do more to stop infringement by blocking, promoting or demoting certain sites.

Just like previous discussions about website censorship, these proposals have no basis in evidence, come seemingly at the say so of rights-holders, with no involvement from civil society. We're urgently looking to tell DCMS why private policing of the Internet is a bad idea.

We have been invited to the next round of discussions: tomorrow, with minister Ed Vaizey. This is a big win for you and ORG. Now we can try to open the process up to everyone.

Nominet is consulting and developing its procedures for taking down internet .uk domains when presented with claims of them being used illegally.

Under the latest changes, Nominet will be able to deny a site suspension request unless police provide a court order or the site is accused of putting the public at serious risk.

Early draft recommendations came in for criticism because police would be able to instruct Nominet to take down unlimited numbers of domains without a court order. Following previous coverage, many El Reg readers were outraged that the proposals didn't seem to do enough to protect ordinary .uk owners from over-zealous cops.

The new draft recommendations state that should a suspension notice be objected to by a domain's registrant, Nominet would be able to consult an independent expert , likely an outside lawyer, before deciding whether to ask police for a court order.

A new revision also draws a distinction between serious cases of botnets, phishing and fake pharmaceuticals sales, which pose an imminent risk to internet users, and cases of counterfeiting, which are perhaps not as risky.

Nominet would draw a distinction between the two scenarios. If it received a suspension request relating to a low risk crime, such as alleged counterfeiting, it would have to inform the registrant, giving them an opportunity to object and/or rectify the problem, before it suspended the domain name.

The policy has stated in all drafts that it would not be applicable to private complainants, such as intellectual property interests, and that hasn't changed. We're excluding all civil disputes, Blowers said. If the MPAA [for example] wanted to bring down 25,000 domains associated with online piracy, that would fall outside of this process.

The policy has also been tweaked with respect to free speech issues. To take down an overtly racist or egregiously pornographic site, Nominet would not suspend the domain name without a court order.

The recommendations are still in draft form but it is intended that the final version will be implemented early in 2012.

Update: LINX Concerns

29th November 2011. See  article from  theregister.co.uk

A spokesperson for LINX, representing ISPs said that the organisation fears social networks, online auction houses and similar sites could be unfairly taken down by cops if their users upload dodgy material. Its statement reads:

A domain owner should be allowed to defend themselves in court. We are also concerned that the law enforcement agencies' proposal does not limit suspension to domains where the domain owner had criminal intent itself: this could place at risk any domain with user-generated content, such as auction sites and social networking.

LINX members are committed to helping the police combat criminal behaviour online, but all such action needs to be balanced and proportionate, and respect the property rights of legitimate businesses. We would welcome suspension of domains held by criminal enterprises, but to protect the innocent suspension should be ordered by a court.

Update: Further Consultations

30th June 2012. See  article from  publicaffairs.linx.net

Nominet will conduct a further round of public consultation before implementing a policy for dealing with domains associated with criminal activity. The Nominet Board communique states:

Further research and legal advice was presented in relation to the ongoing policy development for dealing with domain names associated with criminal activity. The Board agreed to conduct a public consultation prior to implementing the final recommendations.

Nominet has suspended 500 .uk domains as part of an international operation to close down websites selling counterfeit pharmaceutical products.

Almost 13,500 websites worldwide were suspended as part of Operation Pangea IV, an Interpol coordinated effort which resulted in the seizure of more than 2.4 million pills.

Nominet acted to suspend the .uk domains following a request from The Medicines and Healthcare products Regulatory Agency (MHRA) and the Police Central e-Crime Unit.

Eleanor Bradley, Nominet's Director of Operations, said that the sites were in clear breach of Nominet's terms and conditions, due to their owners having provided fraudulent WHOIS details.

Police plans to shut down web domains are to be debated in public.

In November, the Serious and Organised Crime Agency (SOCA) tabled a plan to give such powers to Nominet, which oversees the .uk domain.

SOCA wants the power formalised as Nominet has no obligation to shut domains found to be used by criminals.

Those who want to take part are being asked to put their names forward by 23 February at the latest.

Nominet said earlier that it wanted to create a balanced group of stakeholders that would talk over the policy and its implications. A decision on who will be in the group will be taken by 2 March, said Nominet, and it is expected to have its first meeting later that same month.

  Police will effectively get more powers to censor websites under proposals being developed by Nominet, the company that controls the .uk domain registry.

Following lobbying by the Serious and Organised Crime Agency (SOCA), Nominet wants to change the terms and conditions under which domain names are owned so that it can revoke them more easily in response to requests from law enforcement agencies.

The changes will mean that if Nominet is given reasonable grounds to believe [domains] are being used to commit a crime it will remove them from the .uk registry.

Nominet said: There are increasing expectations from Law Enforcement Agencies that Nominet and its members will respond quickly to reasonable requests to suspend domain names being used in association with criminal activity and Nominet has been working with them in response to formal requests.

At present, there is no specific obligation under Nominet's terms and conditions for owners to ensure their domain names are not used for crime.

Despite this, last December, at the request of the Met's Police Central e-Crime Unit (PCeU), Nominet revoked the domain names of 1,200 websites it said were being used to sell counterfeit designer goods. For legal cover, it claimed the owners breached their contracts by supplying registars with incorrect details.

Plans for more such action, which was taken without any court oversight, are likely to raise concerns over the potential for increased censorship online.

Last week, for example, the PCeU contacted the ISP hosting Fitwatch, a website the Met alleged was offering supposedly illegal advice to student protestors, and had it taken down. Mirror sites and copies of the information it carried quickly sprang up across dozens of hosts, making the attempted censorship ineffective. By working through Nominet, however, it would be much easier for police to centrally block such efforts by revoking the domain name of any website republishing the allegedly illegal information.

Apparently aware of such concerns, Nominet said it will consider creating an appeals process, and that it will only act if the incident was urgent or the registrar failed to comply [with a police request to revoke a domain name] .