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Enough With Blacklisting Online Pharmacies, Isn’t It Time to Consider White Lists?

Ronald N. Andruff

On June 7, 2018, per PICDRP Section B.3.3., ICANN Compliance appointed a Standing Panel to bring their findings in the matter of the National Association of Boards of Pharmacy (NABP) .Pharmacy Registry refusing a potential registrant. One month later, the three independent panelists were unanimous in their 10 July 2018 decision noting three breaches, the most egregious resulting from:

"NABP's failure to operate the top-level domain ("TLD") pharmacy in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies, as required by Section 3.c. of Specification 11 of the RA."

But I'm getting ahead of myself…

Before I go back to the beginning, let me make clear that what follows are my personal observations vis-a-vis how NABP is managing the .Pharmacy Registry relative to personal experience as founder, President and CEO of Tralliance Corporation, the original manager of the .Travel Registry. My analysis may be a little long, but I promise that if you stay with me, you will be enlightened.

Canadawide Pharmacy (CWP) is an independently-owned and licensed Canadian online pharmacy which sells only to customers in Canada (geo-blocked for Canadian customers only) and has objectively met the .Pharmacy registration criteria; yet the National Association of Boards of Pharmacy, the .Pharmacy Registry Operator, has stonewalled CWP's application for its domain name for well past one year.

Using fuzzy, and factually incorrect, allegations about "affiliations" as its ultimate cause for denial, the application sat with the Registry Operator for over 180 days before being refused, despite NABP's own claim to apply a 60-day review process.

Adding insult to injury, the Registry's declination letter made clear that it was disinterested in discussing the merits of its decisions, stating: "NABP refuses any reconsideration of its determination;" and "NABP refuses any discussion of the matter or refiling of an application until an additional 180 days have passed." [Emphasis added]

That a domain registry — an entity that subsists from the sale of domain names — would refuse dialogue with members of the very community it is intended to serve, is wholly inconsistent with its responsibility to serve that community. It begs the question: Why would any registry refuse discussion with an applicant "until an additional 180 days have passed"?

All TLD operators, including NABP, are entrusted with the management of a critical global resource. Yet, the .Pharmacy Registry Operator appears, in my view, to have quite a different objective: Complete control over the Internet/online pharmacy space.

To inform that interpretation, I did some homework and found something inconceivable, as compared to when I oversaw .Travel. Consider how many top-level domain registries have become access gatekeepers to Google and Bing, or credit card companies, VISA and MasterCard? How many TLD operators do you think have managed to achieve such an enviable position of influence?

The answer: One. The National Association of Boards of Pharmacy.

At the urging of the NABP and its allies, search engine operators have been encouraged to prominently rank .Pharmacy domain names among relevant search results — as indeed such names, properly-allocated to eligible registrants should be — but NABP has gone further, to utilize the .Pharmacy TLD as a qualification of which sites may, or may not, participate in search engine keyword advertising for pharmacy-related search engine queries.

The .Pharmacy Registry has also collaborated with the policy development offices of other crucial Internet partners by inserting a TLD policy that denies virtually every legitimate online pharmacy that lacks a .Pharmacy domain name the ability to process credit cards.

The specific policy I am referring to says that a pharmacy must not only be licensed in its own domicile but also be licensed wherever in the world a potential customer comes from. Then — and only then — can a pharmacy buy keywords and take credit card payments, according to NABP. This one-of-a-kind policy creates an all-but-impossible hurdle for virtually every Internet-based pharmacy.

Because of the impact on search engine prominence and the ability to do business, being locked out from registration of a .Pharmacy domain name is not simply a matter of choosing a name in another TLD and making do with that. That doesn't 'bestow access', as previously noted. Again, in my view, notwithstanding having fully satisfied all of the registration criteria, CWP has not been allowed to register a .Pharmacy domain name for reasons that the NABP has never made clear.

On 09 March 2018, in response to NABP's oppressive tactics, CWP finally took the step of filing the PICDRP with ICANN Compliance on the basis that the .Pharmacy Registry Operator was derelict in its responsibility to..."operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination..."

The PICDRP process provides for a series of activities to take place, the first of which is a 30-day consultation period between the applicant and registry operator. NABP allowed 24 days to pass and then, in the last week, requested an "email conference for one hour" to discuss "how to resolve the matter". From the vast array of possible conference methods available today, the choice of an 'email conference' clearly demonstrates the Registry's lack of interest to engage in an actual discussion to find resolution. Instead, the .Pharmacy Registry chose to wait until the time was almost expired to simply check ICANN's PICDRP consultation box, and move on.

ICANN determined a compliance investigation was indeed appropriate and elected to invoke a Standing Panel on 07 June 2018; all three independent panelists were unanimous in their agreement on three breaches.

ICANN requested "that NABP cure these breaches by 11 August 2018, 30 days from the date of [the Breach Notice] letter, by taking the following action:

Provide ICANN with corrective and preventative action(s), including implementation dates and milestones, to address the PIC Reporter's complaint, the PIC Standing Panel's findings and ensure that NABP will operate the TLD .Pharmacy in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies;"

The Standing Panel specifically stated, "The need to provide sufficient and compelling reasons for the Registry Operator's final determination was strengthened by the fact that the review and processing of the PIC Reporter's application took nearly six months, which far exceeds the 60 days normally expected."

Based on PICDRP, Section 4.5, ICANN Compliance set a date of 11 August 2018 for NABP to cure the three issues that led to the formal Breach Notice; then — without notice to CWP — ICANN extended the date to 10 September… and then, again with no notice to CWP, extended it again to 01 October 2018.

During that time, on 31 August 2018, NABP sent CWP a second letter supplementing their rejection letter from 8 months earlier, in which NABP said: "This follow-up letter describes the bases [sic] for NABP's original finding that the applicant, Canadawide Pharmacy Ltd (Company), at the time of application on June 27, 2017, had affiliations with noncompliant entities." Bizarrely, NABP claimed "affiliations" that did not previously exist under the definition of "affiliate" at the time of the application but was based on claims concerning former ownership of CWP and the unsurprising fact that, like many corporations including existing .Pharmacy applicants, CWP shares an administrative mailing address in the same building as unrelated and unaffiliated companies.

In-keeping with what can only describe as NABP's condescending attitude, the supplemental letter to CWP ended with the following statement: "As explained in the Notice, all decisions to close Company's .Pharmacy application are final. NABP will not reconsider any of its decisions. If Company wishes to reapply for a .Pharmacy domain, Company must, at the time of application [designated at an additional 12 months from now], comply with the then applicable Program Standards and Terms and Conditions and must send NABP written notification of how it has remedied the noncompliances set forth in the December 21, 2017 Notice and as clarified herein." [Emphasis added]

On 03 October, ICANN Compliance sent CWP a letter advising that the Registry Operator had cured all of the breaches and thus Compliance summarily closed the ticket. Despite ICANN's Breach Notice demands, no further information was provided to CWP. Nothing about which policy changes were, in point of fact, revised to demonstrate that NABP will no longer act in a discriminatory manner. No information was offered about which corrective measures have been taken. Nothing about how NABP will ensure that it will operate the TLD in a transparent manner. No further information was provided CWP to show evidence that supported the closing of the breach notice or addressing the findings of the Standing Panel.

Today, 20 October 2018, CWP finds itself in the exact same position as it was mid-June 2017!

How is this possible?

Despite the Standing Panel's unanimous findings; despite ICANN's demand that corrective action be taken; despite the time and cost of filing the PICDRP. My personal view is that CWP is further behind now than it was when it began its quest for a .Pharmacy domain name because it has endured 15 months of unrecoverable revenues.

Such an adversarial approach to potential registrants must not go unchallenged because the ICANN community needs to be aware of this untenable and unacceptable behavior; it flies in the face of a TLD operator's responsibility to fairly serve, in this case, a regulated global community.

While the National Association of Boards of Pharmacy and their surrogates spend a lot of time and money talking about defending consumers against 'rogue pharmacies' and adulterated medicines, for my part, it appears that NABP's allegiance is neither to consumers nor to the global community of pharmacies. I say this because of yet another anomaly within the .Pharmacy TLD management.

Consider the television ad campaign NABP has run on CNN new network in Canada. One can't help wonder, why, exactly, would a Registry Operator with only 505 registered names (258 of which are parked, i.e. not in use) promote something that is effectively not offered in a nationwide public service announcement?

Here is the text in full:

"MANY WEBSITES SELLING MEDICATION MAY LOOK PROFESSIONAL AND LEGITIMATE BUT THE VAST-MAJORITY OF SITES SELLING PRESCRIPTION DRUGS ARE DOING SO ILLEGALLY. HAVE YOU SEEN WEBSITES THAT DON'T REQUIRE A PRESCRIPTION OR OFFER TO SHIP MEDICINE INTERNATIONALLY? THEN YOU'VE SEEN A ROGUE WEBSITE. OFTEN THEY SELL FAKE MEDS WITH TOO LITTLE, TOO MUCH, OR NO MEDICINE AT ALL. CRIMINALS USE WEBSITES TO SELL COUNTERFEIT MEDICATIONS THAT MAY CONTAIN LIFE-THREATENING TOXINS.

.PHARMACY IS A WEBSITE VERIFICATION PROGRAM THAT HELPS YOU IDENTIFY SAFE AND TRUSTWORTHY ONLINE PHARMACIES. YOU KNOW WHERE ".COM" IS LOCATED IN A WEBSITE ADDRESS, RIGHT? THAT'S WHERE YOU WILL FIND .PHARMACY. AND BECAUSE IT'S PART OF A WEBSITE ADDRESS, .PHARMACY CANNOT BE FAKED. THINK THAT A SEAL ON A WEBSITE MEANS SAFETY? ONLY .PHARMACY WEBSITES ARE FRAUD-PROOF.

PURCHASING MEDICINE ONLINE DOESN'T HAVE TO MEAN RISKING YOUR HEALTH. FINDING A SAFE ONLINE PHARMACY IS EASY. JUST LOOK FOR PHARMACY TO THE RIGHT OF THE DOT IN WEBSITE ADDRESSES. A PUBLIC SERVICE MESSAGE FROM THE NATIONAL ASSOCIATION OF BOARDS OF PHARMACY."

With just 247 active .Pharmacy domains worldwide, and I would hazard a guess that 10-20% of those are in Canada, this CNN ad buy — something less well-financed registries could only dream of using to promote their TLDs — doesn't make any sense. Which CEO runs a nationwide advertising campaign to promote a handful of domain name holders?! The cost per domain name registered is excessive and the marketing action is premature at best.

But, maybe that's not the point… maybe there is something else going on.

Were NABP to be serious about proactively seeking ways to grow the .Pharmacy Registry, they would be engaging in dialogue with every potential registrant; they would be promoting values and benefits, rather than fear. There would be no reason to delay bona fide pharmacy application reviews — for months and months on end; neither a reason to write policies for critical Internet third parties designed to keep certified, licensed and compliant pharmacies from doing business using the Internet.

Of course at the end of the day, the simplest and most effective solution to resolving all of this, of identifying and separating out reputable online pharmacies from the rogues, would be to engage in dialogue with online pharmacies, law enforcement, academics, government officials and all other relevant parties in the creation of a White List, the virtues of which can be seen in an article by Jeremy Malcolm, formerly of the Electronic Frontier Foundation (EFF). A White List — based on principles and standards — would weed out rogue pharmacies, while supporting and protecting the millions of consumers the world over who search online every day for genuine, safe and affordable maintenance medicines.

In this observer's humble opinion, that would require NABP to refocus on earnest dialogue with its pharmacy community to seek solutions, and to be transparent about its true purpose, which — at this point in time — appears to be maintaining absolute control over online pharmacies, as the final arbiter over which pharmacies are deemed free to use the Internet to build their businesses, and which are not.

Watch this space.

By Ronald N. Andruff, President & CEO, dotSport LLC
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Share your comments

Not surprising. The NABP's officially-stated position is Todd Knarr  –  Oct 20, 2018 7:57 PM PST

Not surprising. The NABP's officially-stated position is that it needs to be illegal and not possible for US citizens to buy drugs from non-US pharmacies. There's been a running feud between the NABP (and LegitScript) and PharmacyChecker over the issue. Frankly I wouldn't trust any national organization to run the .pharmacy domain because of exactly that mess, and I don't see any easy solution to the problem of defining what a "legitimate" pharmacy is when national laws vary so widely.

The only solution to resolve this conundrum Ronald N. Andruff  –  Oct 25, 2018 4:07 AM PST

The only solution to resolve this conundrum is for legitimate online pharmacies to distance themselves from rogues, once and for all.  The first step is to develop sound high-level principles, followed by robust standards and other such unimpeachable arguments that demonstrate legitimacy on their face. To that end, leaders in human rights on the Internet and academics collaborating with the World Health Organization and United Nations, amongst others, came together to develop the Brussels Principles at the last two RightsCon conferences. Here is the fruits of those labors: www.brusselsprinciples.org

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