FDA Is Angry That ICANN Won't Just Censor Websites On Its Say So

from the what's-wrong-with-a-court-order? dept

It's not just the City of London Police demanding that websites be taken offline without any due process. It appears that the US Food & Drug Administration (FDA) is getting in on the game as well. The Wall Street Journal recently published a detailed article about how angry the FDA is with ICANN (there's also a corresponding blog post which may not face the same paywall restrictions) for not simply killing domains that the FDA deems "rogue pharmacies." That's not to say that there aren't reasonable concerns about rogue pharmacies. There are clearly some concerns about those sites, but it seems like there are better ways to deal with those than just barging in and saying that ICANN and registrars need to take down sites based solely on their say so.

In July, the FDA teamed with Interpol and dozens of countries to try to shut down more than 1,300 websites suspected of selling drugs without a prescription. Officials sent a list of all the websites, carrying names such as buyoxycontinonline.com and approvedonlinepharmacy.net, to the Chinese company that registered them. The company replied with a request for a court order and then sent a terse follow-up email: “It is not possible for us to take action.”

In frustration, officials turned to the Internet’s central administrator, an organization called the Internet Corp. for Assigned Names and Numbers, or Icann. Its contract with the registrar, BizCN.com, requires the company to investigate reports of illegal behavior.

But here's the thing. Everyone in the articles (including the reporters) seem to take it as perfectly reasonable that ICANN and/or these registrars should have just taken down these sites. No one points out that BizCN seemed to respond properly by asking for a court order. ICANN isn't in the business of censorship. It shouldn't be the one to determine if a site is an illegal pharmacy or not. There's a reason why we have due process and courts to adjudicate decisions like that. Putting the entire burden on registrars and/or ICANN to act as internet cops, ready to take down sites at a notification's notice seems tremendously problematic.

It's a recipe for censorship, stifling free speech and hindering innovation. And yet, that's what the FDA and others want:

Because of its central role, regulators and law-enforcement agencies around the world say Icann could be crucial to their crackdown on illicit Internet operators of all kinds.

Already, just in the online pharmacy space, we've seen how certain pharmaceutical companies like to conflate the small number of truly "rogue" pharmacies that sell either counterfeit drugs or real drugs without proper procedures, with perfectly safe and legal Canadian pharmacies that many Americans rely on for cheaper drugs. The big pharmaceutical companies would like to shut down that competition, even as American politicians have explored expanding the ability of US citizens to get their drugs from such pharmacies. And that's why it's reasonable to ask for an actual court order before taking down sites -- rather than just assuming that some bureaucrat at the FDA can accurately determine which sites are "good" and which are "bad," and then demand that registrars or ICANN automatically take action.

Filed Under: canadian pharmacies, censorship, fda, icann, interpol, pharmaceuticals, pharmacies, registrars, rogue pharmacies, rogue sites
Companies: bizcn, icann

EasyDNS Tries To Balance Bogus Requests To Take Down Legit Foreign Online Pharmacies Against Truly Rogue Pharmacies

from the not-an-easy-balance dept

We've written a few times about domain registrar/hosting company EasyDNS, which has been pretty vocal about how law enforcement and industry groups have recently started targeting registrars and hosting comapnies as "the soft underbelly" for censorship and coercive control. While we've covered this issue frequently as it relates to things like copyright, the real ground zero for this may be around online pharmacies. The online pharmacy space is a bit complicated -- because there are really a few different kinds. There are US-based accredited/approved pharmacies, there are overseas accredited/approved online pharmacies... and then there are flat-out rogue pharmacies dealing in illegally obtained or counterfeit medicines. Obviously the last one is in a different category altogether from the first two, but US drug companies like to conflate legal foreign online pharmacies with the rogue ones.

For years, there have been fights over the issue of "gray market" and "re-imported" drugs. The most common case involves Canadian pharmacies, which are perfectly legitimate, selling into the US, but at prices much cheaper than the drug companies would like (undercutting the prices charged by American pharmacies). Fake and dangerous drugs from rogue pharmacies are a real (if relatively small) problem. Legitimate foreign pharmacies selling into the US at cheaper prices are a made up problem by US drug companies. But those US drug companies like to take the "small" problem, and blame it on any non-US pharmacy in an attempt to block out the competition. This has been going on for years, but has ramped up recently.

We've written about how the big drug companies recently got control over the .pharmacy domain, and the indications are that they're planning to use it to block out legitimate foreign pharmacies by arguing that only online pharmacies with a .pharmacy domain are "legit" and then banning legitimate foreign pharmacies from getting the domain. Earlier this year, we also wrote about the lobbying group, the National Association of Boards of Pharmacy, telling registrars that if they complain about a site, it must be taken down.

Mixed in with all of this is the somewhat questionable setup of an operation called "LegitScript," which is an organization that claims to verify which pharmacies are legit. The history of "LegitScript" is extremely sketchy, involving a former White House official who specifically worked to block legitimate Canadian pharmacies from sending drugs to the US, and who then immediately went off to form LegitScript as a competitor to PharmacyChecker -- a similar service that verifies online pharmacies including Canadian pharmacies. Oh, and the "immediately" in the last sentence may be inaccurate as the guy, John Horton, appears to have registered the domain for LegitScript while he was still a federal government employee... Either way, the US pharma industry has worked hard to make LegitScript the standard while pushing back on PharmacyChecker.

Back to EasyDNS: the company has been fighting off these demands to shut down sites repeatedly, saying that it will only do so with a court order. After getting into a fight with the US's Food and Drug Administration (FDA) over demands to take down a bunch of domains, EasyDNS finally agreed to take down a site, after being provided with evidence that it was truly a rogue pharmacy, and someone had died from taking drugs ordered from that site. Because of this EasyDNS has adjusted its policy, saying that if you are selling drugs, you have to prove to EasyDNS that you have a license to do so, or be approved by either LegitScript or PharmacyChecker (meaning that it will allow legitimate foreign pharmacies to exist). EasyDNS is still standing up to bogus requests (including new ones from the City of London Police) to take down websites, but is being more proactive when an online pharmacy has no signs of being legitimate.

While some people complained about EasyDNS's new policy, the company's CEO Mark Jeftovic explained it as follows (after referencing the latest copyright takedown demand from the City of London Police):

So in one case we have people allegedly pirating Honey Boo Boo reruns and on the other we have people dying. We don't know where exactly, but the line goes somewhere in between there.

We have always done summary takedowns on net abuse issues, spam, botnets, malware etc. It seems reasonable that a threat to public health or safety that has been credibly vetted fits in the same bucket.

As a private company we feel within our rights to set limits and boundaries on what kinds of business risk we are willing to take on and under what circumstances. Would we tell the US State Department to go to hell if they wanted us to take down ZeroHedge? Absolutely. Do we want to risk criminally indicted by the FDA because of unregulated drug imports? Not so much.

He also notes, as we did, how Fedex was recently indicted over deliveries from questionable online pharmacies, and notes that it's only a matter of time until criminal charges are filed against a registrar or hosting company as well.

These are not easy decisions for anyone -- though, I have to imagine that truly "rogue" pharmacies are increasingly moving to the darknet and underground markets anyway. However, while some may disagree, there does seem to be a reasonable argument for why a registrar like EasyDNS decides it really doesn't want to be involved with clearly rogue pharmacies.

Filed Under: domain registrars, fda, grey market, online pharmacies, pharmaceuticals, reimportation, rogue pharmacies
Companies: easydns, legitscripts, pharmacychecker

UPS Coughs Up $40 Million Because It Delivered Drugs From Rogue Pharmacies

from the uh,-secondary-liability? dept

Whenever we talk about things like "secondary liability" and why it doesn't make sense to blame a company for something their users do, we'll often use examples like pointing out that it's inappropriate to blame AT&T if someone makes a bomb threat over the phone, or to blame Ford for someone driving too fast. Another example in the "of course that's silly" list may have to removed however: the inappropriateness of blaming UPS or Fedex for what's in the packages they deliver. That one now has to be retired. Because the good old US government has made UPS forfeit $40 million to the government for shipping drugs from "illegal internet pharmacies." Details on what actually happened here are sparse, but the DOJ will be celebrating this one, despite almost none of the important details being shared.

UPS put out a statement that doesn't sound even remotely forced upon it by DOJ people holding guns.

"We believe we have an obligation and responsibility to help curb the sale and shipment of drugs sold through illegal Internet pharmacies," said Susan Rosenberg, a UPS spokeswoman.

Of course, what is an "illegal internet pharmacy"? There's a bit of an issue there because the DOJ thinks that an illegal internet pharmacy includes that Canadian pharmacy that is much cheaper, but which is making perfectly legitimate drugs and then shipping them -- gray market style -- into the US. That's a very different picture than the "illegal internet pharmacy" selling sugar pills or worse. But, here's the thing about all that: for all the talk of the risks and dangerous of illegal internet pharmacies there are amazingly few stories of any actual harm. And, in fact, various random tests of the drugs coming from "illegal internet pharmacies" suggest that, for the most part, they're safe (and frequently appear to actually be what they say on the box). So what is the DOJ protecting us from here? The scourge of more affordable legal drugs?

The bigger issue, however, is the question of secondary liability. I don't want UPS going through my packages to make sure they're not illegal drugs. Perhaps the government showed direct plans and strategies by UPS to attract illegal pharmacies, but from the outside, given the information that's been revealed, it looks like the real problem is why is the DOJ even bothering? If UPS and Fedex are going to have to start checking what's inside packages to avoid getting itself fined again, that's a really bad and dangerous precedent.

Filed Under: doj, drugs, rogue pharmacies, secondary liability
Companies: doj, ups