Nominet’s discussions about domain suspensions started yesterday. Over 3,000 sites have so far been ‘suspended’ at the request of the Police. This has been taking place without any formal procedure, although an appeals mechanism has handled 12 complaints, of which 9 were upheld.
We were told that the vast majority are clearly criminal and that other methods of stopping the sites – such as working through webhosts and registrarss is exhausted first. We also heard how successful the financial industry is at taking down criminal sites within hours, no matter where the sites are hosted, and they do not need Nominet to suspend domains.
The danger is in the immense power Nominet wields over domains. 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.
Yet domains are generally regarded as people’s property. Seizing a domain is an incredibly serious thing, potentially disrupting people’s businesses and livelihoods, as well as their freedom of expression. Doing this without due process infringes on another fundamental right. The default position must surely be that court orders be required.
This is not to say that there are absolutely no circumstances in which a domain may need to be suspended. Perhaps sometimes hosts and registrars are uncontactable and something very nasty and urgent is taking place.
But we do not yet know; as yet we have only been given very general and anecdotal evidence. We asked for much more specific advice from law enforcement agencies and Nominet at the end of yesterday’s meeting and will share it once we have it.
The bottom line is that court orders should be the norm for suspension requests. Legal processes have immense advantages, such as being open, transparent, and making sure the accused can be represented, knows what they are being accused of and being able to defend themselves.
Anything that reduces these rights needs careful consideration, check and balances to compensate and clear rights of swift redress rather than blanket powers for law enforcement to request suspensions.
For all that, these discussions represent a serious step forward. Currently, suspensions are taking place without safeguards. Furthermore, they are swiftly identifying that our legal framework may not give domain registries and registrars proper legal protections, unlike hosts and ISPs. This is useful and constructive.