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

from the due-process-matters dept

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.

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

EasyDNS Continues To Fight Bogus Website Seizures By City Of London Police After Verisign Issues 'No Decision'

from the a-decision-of-no-decision? dept

Back in October, we wrote about the absolutely ludicrous situation in which the City of London Police ordered registrars to take down a bunch of websites and point them to a page designated by the police (which pointed to some commercial services in London). There was no court order. There was no court involved at all. No one had been charged, sued, tried or anything. Just the City of London Police, their brand new "Intellectual Property Crime Unit" (set up at the urging of the RIAA), and a demand that the website domains be yanked and that the registrars bar them from being transferred out. While some registrars, such as the incredibly misnamed "Public Domain Registry," caved immediately to the completely bogus request, EasyDNS strongly and publicly refused (telling the police to come back with a court order) while also questioning (1) whatever happened to due process and (2) how any registrar could do this when it clearly violated ICANN's policy on transferring domain names.

Given this, EasyDNS went even further and filed a "request for enforcement" against Public Domain Registry, for locking the domains from being transferred out (and to EasyDNS). As EasyDNS notes, PDR's decision to lock the domains, despite being asked to do so by the police, violated ICANN's policies. ICANN's policies are pretty straightforward: the only times a registrar can deny a transfer-out request is in a few specific cases. And "asked by random police" isn't one. Instead there's "court order by a court of competent jurisdiction." But, again, there's been no court order.

Given this, the fact that PDR is denying to transfer the domains to EasyDNS it seems like an open and shut case that PDR is violating the rules. Verisign, which oversees all of this, should have made quick work of this in telling PDR to get on with the transfers. Instead... it totally punted, issuing one of the most bizarre statements you can imagine:

Subject: TDRS Case 45337 – Decision Rendered/ No Decision [ ref:_00DA0Zmyt._500A0GS9Pe:ref ]

Please be advised that Verisign has completed its review of Request for Enforcement Case # 45337 and has rendered a decision of No Decision.

REASON FOR DECISION: Pursuant to Section 3.3.4 of the Registrar Transfer Dispute Resolution Policy, the data provided by the Respondent is inconclusive as to the issues presented.

Got that? Verisign reviewed everything and it's issued its decision, which is no decision. How very Abbott and Costello of them. Furthermore, the "reason" is even more bizarre. Basically, PDR -- the registry accused of violating the rules -- did not provide sufficient data. Huh? That's like saying that someone charged with a crime automatically gets off if they don't provide the evidence against themselves, no matter what evidence the police have.

From here, it appears the process was:

EasyDNS: Here's our request for enforcement with lots of evidence that PDR folded like a cheap card table when some power hungry police force told them to shut down sites and block transfers despite no court order. This violates ICANN's transfer rules.

Verisign: PDR, what happened?

PDR Hmm?

Verisign: Well, EasyDNS, we are issuing a no decision decision, because PDR's answer is inconclusive.

EasyDNS is going to continue to push the matter, however, because it notes the dangerous consequences of Verisign's ridiculous non-decision.

We feel we have an obligation to push this to an appeal now, because otherwise it means that Registrars can arbitrarily slam the doors on outbound transfers, ignore any enforcement requests from the registry and then be granted decisions of "no decisions", thus allowing them to simply keep the domains hostage.

Now there's an easy way to reduce customer churn – to zero.

Filed Under: city of london police, domain registrars, domain transfers, domains
Companies: easydns, public domain registry, verisign