City Of London Police Cannot Seize Domains Just Because Hollywood Says The Websites Are Infringers

from the due-process-matters dept

Thu, Jan 9th 2014 3:11pm — Mike Masnick

Last fall, we noted that the City of London Police, who had just set up a special "intellectual property crime unit" which appeared to be taking orders directly from Hollywood, had issued bizarre orders to registrars, based on no court order or ruling, that they hand over domain names to the police, point them to a splash page that advertised Hollywood-approved businesses, and block the transfer of those domains to anyone else. A bunch of registrars actually did this, despite the lack of a court order or ruling of any kind. Just because the City of London Police said so. The only registrar who apparently resisted was EasyDNS, who pointed out that there's such a thing called due process. Furthermore, EasyDNS pointed out that the registrars who complied with the order almost certainly violated ICANN policies for registrars, which has a very specific set of conditions under which a registrar can freeze a whois record, none of which include "because some Hollywood-controlled police force says so."

The owners of at least one of the frozen domains sought to then (smartly) move the domain to EasyDNS, who would actually protect them. EasyDNS went to Verisign with a "request for enforcement" against the registrar who froze the whois, the incredibly misnamed "Public Domain Registry." For reasons that make no sense at all, Verisign responded with a "no decision."

EasyDNS appealed that ruling, and finally after all of that, the National Arbitration Forum has pointed out exactly what EasyDNS said from the very beginning: Public Domain Registry cannot freeze the domain:

No court order has been issued which would prohibit the transfer of the domain names at issue from the Registrar of Record to the Gaining Registrar. Therefore, there is nothing in the Transfer Policy which authorizes the Registrar of Record to refuse to transfer the domain names.

The ruling notes that while one may think it makes sense to obey a request from the police, "the Transfer Policy is unambiguous in requiring a court order before a Registrar of Record may deny a request to transfer a domain name." It further notes, correctly, the nature and importance of due process, as without it, abuse is too easy:

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 and judicial decree ensures that the restriction on the transfer of a domain name has some basis of “due process” associated with it.

Public Domain Registry tried to defend itself, by arguing that it could freeze the domains because "their involvement in fraudulent activity." However, the arbitration ruling says both that this is wrong and a total misreading of ICANN's transfer policy. It's wrong in that no one has actually presented any evidence of fraudulent activity, and because the sites being used for fraudulent activity is not one of the reasons why a registrar can block a transfer.

The Registrar of Record argued that a basis for withholding the transfer of the domain names was their involvement in fraudulent activity. The Response stated that the three domain names “were involved in criminal distribution of copyrighted material directly or indirectly and are liable to prosecution under UK law which serves as evidence of fraud” under the Transfer Policy. First, the Registrar of Record’s assertion is not correct as the London Police Request does not state that it has evidence of fraud. The Registrar of Record apparently contacted the London Police, as the Registrar states that the London Police have “agreed to answer any and all questions that might arise with regards to these domain names.”

Second, the reference to “evidence of fraud” in the Transfer Policy does not refer to fraudulent conduct by the holder of the domain name, but evidence of fraud with respect to the transfer of that domain name

Kudos to Mark Jeftovic and EasyDNS for fighting for basic due process. If you're looking for a DNS provider or registrar, they seem like a good one, who is willing to actually stand up for their users' rights and basic concepts like due process. If you're looking for a registrar to avoid, Public Domain Registry immediately goes to the top of the list, for not only failing to comprehend the official transfer policies it is bound to uphold, but for not even remotely caring about basic due process, and being willing to lock down domains despite absolutely no judicial review.

easyDNS Technologies Decision FA 1532690 (PDF)easyDNS Technologies Decision FA 1532690 (Text)

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Filed Under: city of london, city of london police, copyright, domain seizure, domain transfers, domains, uk
Companies: easydns, public domain registry

37 Comments

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Anonymous Coward, 9 Jan 2014 @ 3:29pm

Thank god for due process. However, these domains will no doubt be added to the "Website block" list by the BPI in the UK to be blocked by the ISP's in the UK.
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Anonymous Coward, 9 Jan 2014 @ 3:31pm

in case no one else has noticed what is going on here, UK Prime Minister Cameron, who has such a cosy relationship with President Obama (who just so happens to be sponsored by the USA entertainment industries and Hollywood) has stepped right up to the plate left unoccupied by all that was, but now has stopped happening on the copyright infringement/piracy/file sharing front, just to keep that relationship going. having jumped on board the NSA rowing boat via GCHQ, he saw this as another way of ensuring he is in the US good books! he has gone even further and started down the censorship road on behalf of the industries again but under the pretense of 'protecting the children from porn'! anyone who actually believes that has less brains than a fucking amoeba! i 'm just waiting to read where both the UK and him in particular are being sued under EU law because from what i have previously read, he has forced ISPs to only allow certain information through their internet 'pipes' which is contrary to EU law. that should really put the cat amongst the pigeons!
considering how he keeps promising but not actually doing (in typical politician fashion, to hold a referendum in the UK about leaving the EU, i am surprised the EU hasn't started a referendum of the other nations to decide whether they still want the UK with them, considering how he is a member of the EU club but siphoning info on EU citizens and the heads of EU governments by spying on them and then handing it, via GCHQ over to the USA via the NSA! if that doesn't put him and the UK in a whole heap of shit without wellies, i dont know what will!
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Anonymous Coward, 9 Jan 2014 @ 3:34pm

Public Domain Registry and the London Police, hates it when due process is enforced.
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Anonymous Coward, 9 Jan 2014 @ 3:55pm

"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."

far less reputable? there isn't much that fits that bill, except for maybe the NSA?
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Anonymous Coward, 9 Jan 2014 @ 4:04pm

By agencies far less reputable? Seems like the issues lies with agencies exactly as 'reputable' as the city if London police...
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This comment has been flagged by the community. Click here to show it

Just Sayin', 9 Jan 2014 @ 4:25pm

Aiding infringement is an offense no matter how you want to put it. Of course, you only want due process for pirates.

How long is this post going to be held for moderation? We shall see!
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Anonymous Coward, 9 Jan 2014 @ 4:26pm

is this is same London police who executed one of their paid drug mules on the London underground?

(Charles Menendez is said to have been involved in the reselling of the 80 TONS (yes TONS!) of heroin that has vanished from London Police evidence lockers since 2000.
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get a load of this guy, 9 Jan 2014 @ 4:58pm

Re:
LOL
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Dave Z, 9 Jan 2014 @ 5:40pm

Re:
And you know for a fact that infringement occurred because?
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Another AC, 9 Jan 2014 @ 5:58pm

Forgot something
If you're looking for a registrar to avoid, Public Domain Registry immediately goes to the top of the list, for not only failing to comprehend the official transfer policies it is bound to uphold, but for not even remotely caring about basic due process, and being willing to lock down domains despite absolutely no judicial review.

It's worse than that, they should go to the top of the list for actually trying to fight and argue that they should keep the domain against their own customers demands. That alone should be enough motivation for all of their customers to leave.
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art guerrilla (profile), 9 Jan 2014 @ 6:21pm

Re:
*aiding* infringement ? ? ?
even *TALKING* about, the, um, the um, i-word, should be punishable by death ! ! !
are we not placed on thisy here ball-o-mud in order to indefatigably defend the absolute right of omnipotent korporations to profit off their stolen kultur 4 EVAH ? ! ? ! ?
ain't that why we is all here ? ? ?
*snort*
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That One Guy (profile), 9 Jan 2014 @ 7:49pm

Re:
You know, it's always funny to see people like you, people who claim that piracy is wrong because it's against the law, show such open contempt for the law and the principles behind it.

It's like you can't, or refuse to, realize that justice is either applied to everyone, whether you like them or not, or the entire concept of 'justice' crumbles and becomes nothing more than a sham.
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techflaws (profile), 9 Jan 2014 @ 10:08pm

Re:
Not in moderation but as it's the usual inane BULLSHIT from you and your ilk, I'm more than happy to click report. You're welcome.
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Clownius, 9 Jan 2014 @ 10:11pm

Re:
City of London Police.

Different to the normal police that patrol London (the met). Lets make sure we call out the real douchbags
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Clownius, 9 Jan 2014 @ 10:12pm

Re:
Nope this is the City of London Police not the Met
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G Thompson (profile), 9 Jan 2014 @ 10:48pm

Re:
Aiding can ONLy occur after infringement has been PROVEN

I know these words are hard for you to understand and have more than one syllable but I see you have learnt what moderation is.. maybe you should moderate yourself from making out you're an even bigger fool than previously thought
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Anonymous Coward, 9 Jan 2014 @ 10:57pm

Re: Re: Clownius is right.
Clownius is right. The City of London is distinct from London. Basically, the City is the medieval city-cum-finance district. It has it's own police force, and a variety of startling special legal protections. History, you know.
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Anonymous Coward, 9 Jan 2014 @ 11:03pm

Thailand Watch
Over in Thailand, the Electoral Commission, charged with organizing elections, has failed to let candidates register in Southern provinces, preventing a government from taking power because the Constitution says 95% of seats need to be elected for the government to call a meeting.

The 'anti-corruption' body is investigating the elected government for daring to propose a fully *elected* senate. Apparently giving the power to Thai people constitutes an illegal power grab from the elite who currently 'appoint' half the senate.

It's all fun and games over in Thailand, as the old-boys try to hang on to power, and prevent an elected they know they will lose badly.
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haiku, 9 Jan 2014 @ 11:29pm

Re: Re: Re: Clownius is right.
City of London (area): 1.12 square miles.

Talk about punching above their size ... 8)
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Anonymous Coward, 10 Jan 2014 @ 12:36am

"For reasons that make no sense at all, Verisign responded with a "no decision."."

I'm sure it makes perfect sense to a lot of us who were not surprised in the least by that verdict.

If any decision-making body were to render a truly impartial (and rule-abiding) verdict, then that just means Hollywood lobbyists were caught slacking off.
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Anonymous Coward, 10 Jan 2014 @ 12:37am

Re: Re:
No, the Met are douches too. Just ins a slightly more moustache-twirling way.
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That Anonymous Coward (profile), 10 Jan 2014 @ 12:49am

When those charged with upholding the law violate it at the whim of the rich and "powerful", is there anyone shocked when people have little regard for those laws?

This is the best intimidation money can buy, and one seriously should demand an inquiry into the city of london police to find out why they have all of this time to service a single group.
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Anonymous Coward, 10 Jan 2014 @ 3:06am

Re:
And exactly how many additional sales has that little project generated?

The facts and figures indicate a big fat 0.
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anonymouse, 10 Jan 2014 @ 3:46am

Re:
This is why so many big organisations including some of those that are involved in the internet infrastructure are looking to create a new internet that blocks the likes off verisign and icann. A new internet where it is much harder to track people and where there is real freedom just as the internet was intended to be. If people do not want to join this new internet they will be left behind ruling over something that is irrelevant to most of the populations around the world.
I am personally hooked on mesh networking and how it can and will give people complete or almost complete anonymity and access to data at speeds unheard of in the internet industry that exists today.With no restrictions to what you can view or what you can download free internet access at dream like speeds and no more isp's making a small fortune restricting what paying customers can access by implementing data caps and speed restrictions. There is no reason that ever single person on the internet could not achieve 1gb speeds, even in the uk the last mile is now the only part of the infrastructure that is preventing 1gb internet access and i am sure that over time this will be upgraded..hopefully for the isps sakes, before real meshnetwork devices are being sold en mass.
Once mesh networks are big enough and sponsored enough to become mainstream isp connectivity will be almost irrelevant which in one way is sad as they have provided a very good service in the UK most of the time.
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Anonymous Coward, 10 Jan 2014 @ 6:02am

I tip my hat to those who fought back, in this ongoing struggle against this self entitled authorative mentality
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Pragmatic, 10 Jan 2014 @ 6:11am

Re: Re:
I believe a gentleman called Lauren Weinstein is trying to do such a thing. Check him out, then help him out. He calls it "IDONS."
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Anonymous Coward, 10 Jan 2014 @ 7:34am

Re:
horse with no name just hates it when due process is enforced.
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Zonker, 10 Jan 2014 @ 11:30am

Re:
Far less reputable: NYPD?
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Dave, 10 Jan 2014 @ 12:43pm

Re:
It probably depends on which country's laws you're looking at but that's immaterial. Police cannot just by-pass a court of law (although they seem to try a lot of the time) and, equally, cannot issue arbitrary orders that have not gone through due process. They have also stated that certain websites are engaged in criminal activity. It is NOT their place to do this. The police are supposed to investigate, THEN others decide if there is enough evidence to bring before a court. The police do NOT set themselves up as judge and jury, as seems to be the situation in this case.
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Anon, 11 Jan 2014 @ 3:11pm

Re:
No, that was the Met. The City has it's own force.
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cliftz, 11 Jan 2014 @ 4:38pm

Re: Re:
pure Art.
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Anon, 11 Jan 2014 @ 4:43pm

Re:
Actually a lot of times its common to automatically respond with a no decision, likely their original appeal lacked information they did not know they needed. Its very common for a lot of things to decline most applications like that and then tell you what you need for the appeal. Its kind of similar to if you ever apply for unemployment or reimbursement for something for work, most people get denied on their first application and have to appeal it with in depth information. It's bureaucracy at its finest.
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Anon, 11 Jan 2014 @ 4:56pm

Re: Re:
Mesh networks will never actually work large scale, and the entire system is not designed for that. They are great small scale but large scale they are worthless. For example, most houses only can get 1 or two wireless signals, which means on a one way street the data at the last house has to go through every other link in the chain and on and on, the farther down the chain you get the slower it becomes. It might work in a large really densely populated city with apartments where each place 5+ other links, but then you have entire rural routes or even normal neighborhoods where it just does not work. Aside from that you have areas between cities where you have to lay fiber and use ISPs not to mention crossing the oceans.

Mesh networks are also only fast when sharing localized data from a small area as well, like there is data on a friends machine who is two houses down, when your talking longer distances like a few city blocks they are actually much slower than tradition networks, and if the data you want is halfway around the country or world they are insanely slow.
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Anon, 11 Jan 2014 @ 5:04pm

Re: Re: Re:
That system will never work, for one it makes squatting way to easy when it can be done for free with zero oversight. If they went with that system every domain name under 20 letters would be instantly squatted. The biggest thing keeping the squatters from taking every domain name is the cost, make it free and any new website would have to have a huge name that is impossible to remember.
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art, 11 Jan 2014 @ 7:07pm

Re: Charles Mendez
you are a clueless conspiracy theorist. there is no such thing as the "london police". This article is about The City of London Police. Do some research
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Anonymous Coward, 13 Jan 2014 @ 1:00pm

Hey Hollywood you are not World Police like the USA
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Anonymous Coward, 14 Jan 2014 @ 11:46pm

Re: Thailand Watch
Sorry, wrong kind of registrar. This article is about internet registrars, not political. If you wanted to submit this as a story for Mike, there is a link at the top of the page for that.
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