US government accidently shuts down 84,000 websites

United States of America
Brand owners wishing to recuperate domain names registered by cybersquatters infringing their brands are often forced to pursue legal action, either by filing a complaint under an alternative dispute resolution procedure, such as the Uniform Domain Name Dispute Resolution Policy, or by court litigation. However, more serious criminal activity, such as using domain names to point to websites containing child pornography, justifying the involvement of national enforcement agencies, often results in much swifter action.
 
The US government, via the Department of Homeland Security, occasionally sees fit to seize domain names used for illegal activity. For example, days before the Super Bowl in February 2011, US Immigration and Customs Enforcement (ICE) seized 10 domain names linking to websites that were illegally streaming sporting events in violation of US copyright law. Furthermore, in June 2010 US authorities executed seizure warrants against nine domain names pointing to websites offering pirated copies of unreleased films and, in November 2010, 82 domain names pointing to commercial websites engaged in the illegal sale and distribution of counterfeit goods and copyright works were seized. One of the most recent seizures, referred to as ‘Operation Broken Hearted’ on February 14 2011, involved 18 domain names linked to commercial websites engaged in the illegal sale and distribution of counterfeit goods.
 
However, a recent operation generated some bad publicity for ICE when it seized 10 domain names targeting child pornography as part of ‘Operation Protect Our Children’. One of the domain names was ‘mooo.com’, held by an entity called FreeDNS offering users third-level subdomains such as ‘john.mooo.com’. Presumably, ICE intended to seize one of these third-level domains, but technically, only the domain name owner controls the third level. Consequently, ICE presumably seized the domain name instead, resulting in 84,000 websites going down. Furthermore, innocent owners and users of the corresponding websites were surprised to find that the usual content had disappeared to be replaced with the Department of Justice’s logo and text reading as follows:
 
"Advertisement, distribution, transportation, receipt and possession of child pornography constitute federal crimes that carry penalties for first-time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution."
 
Normal service was resumed within days, but the outage caused a storm on the internet, with many users questioning whether the US government was abusing its authority, especially as the court hearings required to seize the domain names via registrars often take place behind closed doors, and domain owners are not given a chance to defend themselves before the domain names are seized. Had FreeDNS been given a chance to explain how it was using the domain name in question, it is unlikely that the problem would have arisen.
 
Unless ICE is far more careful in future, the controversy looks set to run and run, especially given the US government's apparent concern to ensure that individual countries are not allowed to block free and open communication via the internet while at the same time inadvertently silencing its own citizens.
 
David Taylor and Jane Seager, Hogan Lovells LLP, Paris

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