Nominet consulting on suspensions to stamp out crime

United Kingdom
Nominet, the ‘.uk’ domain name registry, has begun the first in a series of Issue Groups. In short, the aim of these groups is to raise some of the more pressing issues affecting the ‘.uk’ domain name space, seek participation across a wide spectrum of stakeholders, and ultimately report back to the Nominet board and make recommendations regarding any changes to the ‘.uk’ policy. This is the first time that Nominet has formally consulted in this way, and the hope is that this more democratic approach will better reflect the wishes of the ‘.uk’ community.

The first Issue Group was proposed by the Serious Organised Crime Agency (SOCA), and relates to dealing with domain names which are used in connection with criminal activity. Criminal activity on the internet is increasing, and SOCA proposed this topic with the aim that ways to cooperate and tackle take-downs at registry level could be formalised, as opposed to the relatively ad hoc manner which currently exists.

The participant members of the Issue Group come from a wide range of backgrounds, including SOCA, Trading Standards, the Metropolitan Police Central e-Crime Unit, the Medicines and Healthcare Products Regulatory Agency, the Anti-counterfeiting Group, Microsoft, Tucows, Privacy International, the Open Rights Group and a number of others.

Prior to the first meeting of the Group in April, Nominet asked Micheál O'Floinn, an independent PhD researcher from Queen Mary College, University of London, to prepare a background report on the legal issues arising from the suspension of domain names. Its purpose was to help focus the discussion topics of the group and to provide background. The report is a detailed and academic assessment of the position, including in relation to any potential liability which Nominet faces for suspending, or not suspending, a suspicious domain name.

The first meeting of the group took place in London on April 4 2011, and it was not long before the disparate approaches and views came to the fore. While the meeting was subject to the Chatham House Rule (which allows for the sharing of information, but not for it to be attributed to a particular speaker), what can be reported is as follows.

First, some people queried the need for a consultation on this matter when there were already systems in place which enable domain names to be suspended if and when required. In other words, why discuss formalising something which already works? Others also queried the need, but from a different perspective - why should Nominet be involving itself in suspending domain names, as in all but a fraction of a percentage of cases, the registrar and its complaints procedure was the correct approach? After all, approaching Nominet directly could increase the risk of incidents such as when the US Immigration and Customs Enforcement accidentally pulled the plug on around 84,000 domains because some of the domains it was actually targeting hosted third-level sub-domains (for further details please see “US government accidently shuts down 84,000 websites”).

The other hot topic of discussion was to what extent the actual commission of a crime would need to be shown in order for Nominet to act - the point being that no one knows for certain whether a crime has been committed until it goes before the courts and someone is convicted. In other words, to what extent can mere suspicion of a crime be sufficient, and should it be enough to merit suspension of a domain, and indeed should Nominet be judging that in any event?

After two-and-a-half hours of discussion, a consensus was not reached - hopefully the bridges will be built over the course of the next two meetings.
 
David Taylor and Charlie Winckworth, Hogan Lovells, Paris

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