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…
And my usual request for attribution:
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2014, London police domain seizures under scrutiny after arbitration decision, in Iptegrity.com 15 January 2014. Commercial users - please contact me.