VeriSign demands website takedown powers

Thu Oct 13 17:37:22 CEST 2011

I'm assisting ORG on its comments to Nominet and it would be very useful to have some input from the lawyers and others on this list. In particular -it would be useful to have some extracts from recent US authorities/academic works on Free Speech/the First Amendment and the right to receive and impart information online and in a domain name context particularly. Any references/cites to helpful recent US case law or papers on these issues would be helpful.

Thanks and best,

Victoria McEvedy

Principal

McEvedys

Solicitors and Attorneys

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From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Mary.Wong at LAW.UNH.EDU
Sent: 12 October 2011 22:58
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: [NCSG-Discuss] VeriSign demands website takedown powers

An impact statement would be timely and highly desirable.

Although I am sympathetic to certain law enforcement concerns, the vague language Verisign used in the RSEP filing is troubling. The anti-abuse policy it proposes seems to be a broader framework for denying, canceling or transferring domains - malware is just one of the grounds, and others include any "request from law enforcement or a government or quasi-government agency" (i.e. not just court orders). It seems to have consulted only with registrars (understandable), NCFTA and the Anti-Phishing Working Group (APWG), an association composed largely of industry and law enforcement bodies. There are no further details as to the principles or criteria to be used to determine "abusive", "non-legitimate" and similar broad/subjective thresholds.

The only reference I saw, in my quick read of the RSEP, is the possibility of a "protest mechanism" for (one presumes) a restoration of the domain, but it's not clear what that will look like.

The Nominet recommendations are somewhat clearer - e.g. limitation to "serious criminal activity" and the possibility of appeal - but still of concern. For example, and as Kathy and others point out, who would determine whether and what freedom of expression issues exist in a dispute?

I support us issuing a public statement and also would like us to form a small working team to reach out to Verisign, Nominet, the Registry and Registrar Stakeholder Groups to discuss the issue, hopefully in Dakar. I'd be willing to be the point person for the latter, if members feel that would be a good way to highlight our concerns to those directly implementing or at least considering these new practices.

Cheers

Mary

Mary W S Wong

Professor of Law

Chair, Graduate IP Programs

Director, Franklin Pierce Center for IP

UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong at law.unh.edu<mailto:mary.wong at law.unh.edu>
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584

>>>

From:

Milton L Mueller <mueller at SYR.EDU>

To:

<NCSG-DISCUSS at listserv.syr.edu>

Date:

10/11/2011 5:09 PM

Subject:

Re: [NCSG-Discuss] VeriSign demands website takedown powers

An issue here is what is the intended scope of the suspension service. If you look at VeriSign's actual announcement, it starts out talking about malware. But we all know that LEAs can consider copyright, gambling, and all sorts of other things to be grounds for suspension. The idea of a "free expression impact statement" is a great one, would it apply to this case as well? Would it also be advisable to push to constrain this process explicitly to malware and such technical threats?

> -----Original Message-----
> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
> Wendy Seltzer
> Sent: Tuesday, October 11, 2011 12:57 PM
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: [NCSG-Discuss] VeriSign demands website takedown powers
>
> Thanks Alex and Kathy,
>
> This development underscores the importance of including freedom-of-
> expression impact analyses in the policy review.
>
> We at NCSG should help ICANN staff to set a good framework for that
> review in the current report on registrar contacts for law enforcement,
> (Resolution 3.5 at <http://gnso.icann.org/resolutions/#201110>) that can
> serve as an example and precedent for future cases.
>
> --Wendy
> ut
> On 10/11/2011 11:29 AM, Kathy Kleiman wrote:
> > Tx you, Alex, for the posting.
> >
> > Takedowns is a growing issue, and Verisign's announcement builds upon
> > meetings that international law enforcement representatives held with
> > registries and registrars last year.  Verisign is asking for takedown
> > powers. Also, working with the Serious Organized Crime Agency of the
> > UK, Nominet (.UK) has issued a draft recommendation giving it takedown
> > authority in cases of alleged serious crime.
> > http://www.nominet.org.uk/news/latest?contentId=8617 (public comment
> > period technically over).
> >
> > The direction is clear - this is what law enforcement wants. The
> > question we can influence, I think, will be process:
> > - How can we ensure that only the most serious crime is subject to
> > this rapid takedown process?
> > - How can we ensure free speech/freedom of expression websites are
> > exempt ("The policy should exclude suspension where issues of freedom
> > of expression are central aspects of the disputed issue," Nominet)?
> > - How can we ensure a very rapid appeal for when mistakes occur?
> > - How can we help the good faith domain name registrants know where to
> > go for help?
> >
> > Best,
> > Kathy (Kleiman)
> >> No court order necessary
> >> By Kevin Murphy
> >> 11th October 2011
> >>
> >> <http://www.theregister.co.uk/2011/10/11/verisign_asks_for_web_takedo
> >> wn_powers/>
> >>
> >>
> >
> >
>
>
> --
> Wendy Seltzer -- wendy at seltzer.org +1 914-374-0613 Fellow, Yale Law
> School Information Society Project Fellow, Berkman Center for Internet &
> Society at Harvard University http://wendy.seltzer.org/
> https://www.chillingeffects.org/ https://www.torproject.org/
> http://www.freedom-to-tinker.com/

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