The Closing of the Net  "original and valuable"  Times Higher Education

City of London police domain seizures on behalf of copyright industry claimants  are coming under scrutiny following an adjudication  obtained by a Canadian domain registrar. EasyDNS, based  in Ontario, Canada, filed a complaint  regarding a transfer from another registrar, of domains that were under a seizure order. The decision obtained under the Internet governance rules, stipulated that there should be a court ruling. It  provides much food for thought in terms of the legality of take-down notices.

 The issue at stake is a new strategy by the copyright industries to get Bittorrent sites taken down using criminal law procedures, instead of taking action in the civil courts. Last autumn, the City of London police, acting on the orders of rights-holders,  sent out a number of domain seizure notices  - which would have the effect of taking down entire websites – to several domain registrars worldwide.

One of those registrars was EasyDNS in Canada. The company  refused to act on the notice, since it had come directly from the City of London police with no court order or ruling attached.  EasyDNS  demanded a court order. The  proprietor, Mark Jeftovic,  made the point very clearly on a public blog posting that there should be due process in cases when domain seizures are requested.

Then, EasyDNS received transfer orders for domains that had been subject to the seizure orders, but were registered with another Registrar, called Public Domain Registry, based in India. When the Indian registrar refused the transfer, on the basis of the police notice, EasyDNS filed a complaint with the .com registry operator, Verisign. When Verisign refused to come to a decision, EasyDNS took the matter to a higher level, using the process established by the Internet governance body, ICANN.

The Canadian  domain registrar went to a body called the National Arbitration Forum, which runs the dispute resolution service for ICANN. The decision, released last week, underscores EasyDNS and its stance on due process.

 The decision stated that:

 “To permit a registrar of record to withhold the transfer of a domain based on the suspicion of a law enforcement agency, without the intervention of a judicial body, opens the possibility for abuse by agencies far less reputable than the City of London  Police. Presumably, the provision in the Transfer Policy requiring a court order is based  on the reasonable assumption that the intervention of a court”

 The decision incorporated an order that the domains should be tansferred from their original registrar to EasyDNS.

 The decision raises further questions as to whether all domain seizure orders should be accompanied by a court order, under Internet governance rules that.  If that were the case, domain registrars would be within their rights to refuse to act merely on the receipt of such police notices – at least, that is the tone of the EasyDNS decision.

 Requiring a court order would be compatible with  EU law,  which, under Article 1.3a of the Telecoms Framework Directive (2009) reminds national governments that they should follow due process  - a prior, fair and impartial hearing - before taking measures to restrict the Internet (see Telecoms Package: the verdict ) . The City of London police notices relate to criminal law, which, in the EU, remains the competence of the individual member states.

The interesting point concerns the legal  jurisdiction. The seizure requests were made in Britain by a British law enforcement agency, on behalf of a British-based organisation.  EasyDNS is in Canada, both in terms of its company registration and its servers. Public Domain Registry is in India. The decision was taken by the National Arbitration Forum, which is a United States administrative body that handles domain name disputes on behalf of the internet governance body ICANN.

 More work for the lawyers…

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 This article has been compiled using material on the EasyDNS website with a tipoff from Techdirt

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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