Talks over an official policy on “fraudulent” Website suspensions have stalled
A group of prominent British Internet companies are demanding better protection for legitimate Website operators as law enforcement agencies continue the mass suspension of allegedly fraudulent sites.
The Open Rights Group (ORG), along with the UK Internet Service Providers Association (ISPA) and the London Internet Exchange (LINX), have said that draft policy plans on Website take-downs are unacceptable, in part because they do not require a court order for a site to be removed.
Earlier this month the Metropolitan Police’s Central e-Crime Unit (PCeU) said it had worked with UK registry Nominet to shutter more than 2,000 fraudulent e-commerce Websites ahead of the Christmas shopping season.
So far such takedowns have proceeded on an ad-hoc basis, without any formal policy in place, ORG noted. Talks to put such a policy in place began this spring, but ORG, ISPA and LINX said they cannot agree on the draft policy published by Nominet last month.
A fundamental sticking point is that the policy will continue to allow sites to be removed without a court order, although in some cases Nominet would be able to request that a court order be provided.
“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 executive director Jim Killock said in the statement.
ORG argued that Nominet’s current ad-hoc practices are in violation of the European Convention on Human Rights, whose Article 6 establishes the right to an independent and impartial tribunal established by law.
“ORG’s position is that seizures and suspensions should be taking place only on court orders as the law and the Convention require,” Killock stated.
ORG has been participating in Nominet’s policy discussion group this year in the hope of persuading those involved to seek court orders before suspending Websites, the group said.
However, events have been rather tending in the opposite direction, with law enforcement agencies seeking to further streamline the suspensions process and to officially dispense with the need for court orders, ORG said.
“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,” Killock stated. “Their reasoning has been based around a lack of resources.”
Killock said that the scope of the policy discussions had been set rather by Nominet’s de facto suspensions policy, rather than by any test of principle.
The result is a lack of agreement on any policy at all, ORG said.
“The result is a dangerous one. We have suspensions with no policy: and the possibility of legislation to compel domain suspensions,” Killock stated.
ORG also called on Nominet to publish the full details of the several thousand Websites that have been suspended to date, including the agencies making the requests, the domains affected and the alleged offences associated with the request.
ORG has been campaigning for more controls on Website suspensions since policy talks began in April.
“The danger is in the immense power Nominet wields over domains,” Killock stated at the time. “Any domain can technically be suspended, making Nominet an easy target for law enforcement authorities to cut out the hard work and get a quick result. Worse still, law enforcement agencies appear to have been arguing to Nominet and others that they are liable under the Proceeds of Crime Act if they do not suspend sites once they are made aware that criminal acts may be taking place on domains.”
Nominet concluded the latest round of talks on 20 October and published a set of draft recommendations, collecting feedback on these until 18 November.
Like ORG, the registry has acknowledged that a formal policy is needed on the suspensions issue.
“We believe that formal policy advice is needed to underpin proposals for a change to Nominet’s Terms and Conditions to give a contractual basis to suspend domains where Nominet has reasonable grounds to believe they are being used to commit a crime (e.g. a request from an identified UK Law Enforcement Agency),” Nominet said in its summary of the issue.
“There are increasing expectations from Law Enforcement Agencies that Nominet and its members will respond quickly to reasonable requests to suspend domain names being used in association with criminal activity and Nominet has been working with them in response to formal requests,” the registry stated.