ISPA, LINX and ORG insist on Court Orders for domain suspensions

Today, ISPA, ORG and LINX have informed Nominet that we are unable to agree with the draft Issue Group statement on domain name suspensions. We have been closely involved in these discussions.

Nominet has to date been suspending domain names at the mere request of law enforcement in a variety of cases. The full details of these suspensions have not been released: rather, some summary information has been provided orally giving an indication of the volumes and the nature of the offences. We are asking Nominet to publish this information.

Law enforcement have argued that Nominet must take responsibility for acting once they are informed of suspensions, in some cases threatening them with potential liabilities under the Proceeds of Crime Act. We have no doubt that so far most of the domains have been worth removing. Some clearly have been taken down incorrectly. But whatever the current practice – the scope of a criminality policy puts in place principles which will inevtably be used much more widely in the future.

Currently, no-one can know in advance when their fundamental Convention rights of freedom of expression, assembly, property and private communications may be interfered with by Nominet – acting at its own discretion on advice from a variety of state agencies.

Nominet – who are aware that running ad hoc procedures is dangerous and unsustainable – therefore convened an Issue Group to try to create a process to deal with these requests from law enforcement.

This process has been unable to reach agreement. ISPA, LINX and ORG have each separately decided that domain suspensions need to take place after receipt of a court order, and informed Nominet of this today.

ORG’s understanding is that Nominet’s current practices fail to comply with the European Convention on Human Rights (the Convention).[1] It is an Article 6 right under the Convention to have an open fair and public hearing by an independent and impartial tribunal established by law. Article 6 rights cannot be waived.  Further the underlying rights are only subject to justified or authorized interference in accordance with or prescribed by law –which is accessible and formulated with sufficient precision to enable citizens to regulate their conduct.[2] This is not and cannot be met when Nominet itself exists in a statutory and legal vacuum –and now acts without court orders.

ORG’s position is that seizures and suspensions should be taking place only on court orders as the law and the Convention require.

ORG has participated in Nominet’s stakeholders issues group in the hope of persuading the stakeholders to agree to seek court orders, and to introduce transparency and clarity. We have tried to find ways to balance the rights of individuals, but law enforcement agencies have been resisting suggestions that court orders might ever be sought. Their reasoning has been based around a lack of resources.

We have had some fundamental concerns with the process:

• The level of detail and specification needed in the policy was difficult to achieve: and without this, we could not be confident in the way the recommendations might be acted upon
• The scope of the policy, including non-urgent problems such as counterfeit goods sites, was set by Nominet’s de facto suspensions policy, rather than any test of principle
• Law enforcement agencies in effect were able to rule out prior or first-available opportunity court orders, constraining our ability to construct a truly compliant policy
• We had not resolved whether we would not have the ability to input to final policy language—without such input we would potentially be signing away your fundamental rights.

Nevertheless, the result is a dangerous one. We have suspensions with no policy: and the possibility of legislation to compel domain suspensions. We will need to hear from Nominet how they wish to proceed, particularly

• how they will act on future law enforcement requests, and whether they will require court orders
• whether law enforcement will be seeking new legislation, and what balances Nominet will argue for
• whether they will publish full details of suspensions to date, the agency making the request, the domains affected and the alleged offences associated with the request

Thanks to Victoria McEvedy for her advice and help with the legal aspects of this post