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In the news lately have been a number of incidents where U.S. courts, or the U.S. government itself has ordered domain registrars to shut down free speech.
First was the E360 vs Spamhaus case, in which accused spammer E360 Insight sued anti-spam organization Spamhaus for labeling them as spammers and won by default when Spamhaus insisted that U.S. courts did not have jurisdiction over them in England and didn’t appear. Unfortunately, U.S. courts did have jurisdiction over Spamhaus’ domain registrar, who was nearly ordered to shut Spamhaus down (a court order was under consideration). Fortunately, Spamhaus was able to move their registration overseas before any shutdown order could be issued.
Not so lucky was WikiLeaks, a whistle-blowing web site which blew the whistle against Swiss Bank Julius Baer, publishing documents that supposedly provided evidence of asset hiding, money laundering and tax evasion. Julius Baer sued in retaliation and was able to convince U.S. judge Judge Jeffrey White to order Wikileaks’ domain registrar to shut them down a few weeks ago. Although Wikileaks was foolish enough to have a registrar in U.S. jurisdiction, they were at least wise enough to have their servers in Sweden and to have mirrors in other countries, and so the organization was able to stay on the air. Shortly after, the judge reversed his decision.
Probably better known is the Pakistani censorship of YouTube. Late last month, the Pakistani government decided that some of the material hosted on YouTube was too offensive to be allowed inside the country, and ordered Pakistan Telecom to block YouTube at the border. Unfortunately, the method used by Pakistan Telecom was to advertise false domain routing for IP addresses owned by YouTube. This would have worked fine if not for the fact that the false routing information leaked out of Pakistan and shut down routing world-wide, knocking YouTube off the air for a couple hours.
But far worse than any of these is the outright censorship of a Spanish travel agency by the United States Government.
The travel agency in question—run by an Englishman named Steve Marshall who lives in Spain—specializes in trips to Cuba. Even though though the web site is not run by a U.S. citizen, is not based in the U.S., and is targeted at European travelers and not Americans, Marshall made one fatal mistake: he registered his domains in the United States.
That was enough for the U.S. government. In October, the U.S. Treasury Department ordered Marshall’s domain registrar, eNom, to not only pull the plug on Marshall’s domains, but to lock them down to prevent him from transferring them to a registrar outside of the United States.
The full story can be found in the New York Times article A Wave of the Watch List, and Speech Disappears. The article is well worth reading, and details abuses of the watch list the government uses to punish people who do business with Cuba.
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Dell Computer supposedly got and enforced a court order on VeriSign to lock out 3 offshore registrars of their .com registrations:
http://www.domainnamenews.com/legal-issues/registrar-belgium-domains-locked-out/1351
If someone at the U.S. government figures that out, oh boy.
I don’t understand the “worse” part.
US law prohibits US companies from engaging in direct or indirect commerce with Cuba. These and other domain names were put on the OFAC list some time ago, and in fact I notified Enom and other registrars by posting the update to the ICANN Registrar Constituency list.
IMHO, the US embargo is ineffective and silly, but that doesn’t change the very straightforward and widely known fact that a US company is going to be subject to that embargo.
The North Korean government used to have its domain name - korea-dpr.com - registered through Enom as well. The former Iraqi government had its domain - uruklink.net - registered through Register.com. Those domain registrants were invited to take their business elsewhere, since neither Enom nor Register.com could provide service to them.
This is not an unusual feature. If, for example, one were to run a pro-Nazi or holocaust-denier website, then there are several European countries in which the use of technical support providers would result in a shutdown.
Similarly, in Canada, there are laws governing the disclosure of information about pending legal matters which have, in the past, resulted in shutdowns of Canadian-hosted content about them.
The internet is borderless, but in situations where specific activity subject to national laws takes place in a relevant country, then the relevant national law will be applied to that specific activity within its borders.
The “speech” at issue here is the conduct of commercial activity, which is not subject to strict principles of the First Amendment of the US Constitution. As it stands, like it or not, commerce with Cuba or in support of Cuba is not legal in the United States, Enom is located in the United States, and that’s that.
John I couldn’t agree with you more. There is a big difference between censoring speech in violation of the First Amendment (referred to as pagewaxing) and enforcement of United States laws regarding commercial activity. There seems to be a definite trend by those labeled spammers, cybersquatters, and the wrongfully censored to fight back. However, just as intellectual property owners must be prudent and selective in choosing which matters to pursue, those “counterclaiming” must in turn be selective. We all now know that not all domain name and website take-downs are pagewaxing, reverse domain hijacking, or generally wrongful. Regardless, debates such as these tend to clarify which cyberuses and tactics are in fact misuses (the Cuba example) or abuses (pagewaxing).
@Dave Zan: If the US government starts exerting control farther up the chain, such as on US-based registries, or ICANN itself, it may well precipitate a revolution. The revolution may split the DNS very badly, but it’s a question of which kind of breakage seems preferable: US imperialism, or anarchy. The more egregiously the US abuses its privileged position, the more attractive anarchy is going to look.
@John and Brian: I have no comment on the US embargo of Cuba, or US laws as regards free speech and its lesser status in the commercial space. From a political perspective, the important note that you should take away from this article is that the US Treasury Department is able to effect this action unilaterally, without judicial oversight or approval, and the only avenue of appeal is through the same bureaucrat who made the decision to take action in the first place. I think you should be concerned about the complete lack of checks and balances in this scenario.
The other thing to note in this particular case, as relates to US interference in foreign affairs via the DNS, is that the registrar was not only ordered to disable the domain names in question, but also prevent the registrant from transferring them elsewhere. If this had been a simple matter of preventing US businesses from dealing indirectly with Cuba, it would have been sufficient to order the relevant registrars to cease doing business with Steve Marshall. By also ordering that the domains be locked, the US Treasury Department effectively extended its reach beyond its borders, preventing the foreign operation from resuming business as usual under non-US registrars.
In an ideal world, Steve Marshall would be able to appeal this situation further up the chain of DNS authority, either to the TLD registry, or the masters of the DNS root, but it’s currently US jurisdiction all the way to the top. Such an appeal may have worked if the shoe had been on the other foot: that is, if he were a US citizen, and the order had been effected by a government other than the US. If a non-US registrar locks a domain, a US citizen can request that a US court order a US registry to override that action. Such appeals should ultimately end with the IANA, the master of the DNS root, and this is one of the reasons why that function should be performed internationally. Without such international positioning, the rest of the world is effectively subject to US law as regards the DNS, to the extent that the US decides to make it so.
Neither the registries nor ICANN are similarly positioned here with respect to the way the law operates here, since neither of them has a direct and known commercial interface with the domain registrant.
Particularly in the “thin” registry situation w/r/t .com, the registry does not even know to whom a domain name is registered.
To take a similar situation, I can manufacture widgets and sell them to Canadians. Canadians can sell my widgets to Cubans. Only if I am selling to Canadians with the intent that they sell them to Cubans would I be liable under the relevant US law.
That is something of an oversimplification, to be sure, but the fact that something is sold to an entity on the OFAC list somewhere down the stream of commerce from where I sit, is not in itself sufficient to render me liable.
And again, the subjective merit of any particular US law or regulation is not relevant to its existence and enforcement.
Equal silliness can result from “international” control. There was nothing wrong with the domain bodacious-tatas.com and the manner in which it was being used by a New Jersey resident in connection with what most speakers of American slang understand to be “bodacious tatas”. That set of facts did not stop the Tata Corporation in India from shutting down that site under a proceeding conducted under the auspices of a United Nations agency - i.e. WIPO. So I fail to see the advantage there.
John, I don’t disagree with your analysis, but I think you’ve misunderstood my point. There are two issues here, and I’ve tried to keep them separate. The first issue is that the US Treasury Department is able to enforce this kind of action without any clear checks and balances on its activity. That is almost entirely a US-internal concern, or it would be if it weren’t for the second issue: the privileged position of the US with regards to taking action in matters relating to the DNS.
This is true in this specific instance, but not a general rule. The concern is that US government influence over ICANN and significant US-based registries is limited only by the laws that the same government decides to enact. In other words, “the way the law operates here” is subject to change. Also, please don’t overlook the fact that the registrar was made not only to cease business with the registrant, but also to lock the domain, which is an action directly aimed at the non-US registrant. Along which path lies the means for the registrant to appeal this action?
Strictly speaking, I think you’ll find that you’ll be liable under US law if the US Treasury Department claims that is your intent. That’s part of the first problem. The Treasury Department did not have to prove nefarious intent in the case of Steve Marshall, did it? To whom would it have to prove its case?
I don’t doubt that. Too much control by any one special interest will result in abuses by that special interest. Where the controlling party is the US government, that will result in abuses which benefit the US government at the expense of everyone else (as in this current case). Where the controlling party is WIPO, that will result in abuses which benefit large corporations with trademarks at the expense of everyone else, and so on. It’s necessary to make the process not only international, but also balanced across various other kinds of conflicting interests.
I don’t claim that such balance is easy to achieve. In fact, I will go so far as to claim the opposite: such balance is hard to achieve, particularly since many special interests make it their aim to obtain and maintain an unfair advantage.
Just be thankful that I didn’t really put the cat amongst the pigeons and ask whether ICANN itself is in violation of the law by allowing a TLD for Cuba in the DNS.
Indeed that is the 800 pound gorilla in the room, and has been since 2002:
http://www.dnso.org/clubpublic/ga/Arc10/msg01976.html
We have, for example, an economic embargo of Libya (.ly)in effect in the United States. We also have embargoes against Myanmar (.mm), Iran (.ir), North Korea (.kp not delegated), and Cuba (.cu), among others.
Your point on the lock is well-taken. However, if an instrumentality of some kind has been identified as being used in connection with Cuban commerce, I don’t know whether you’d be able to export it either. For example, if your boat was docked at a marina in Florida with a load of Cuban cigars, would you be able to say, “Okay, I’m taking the boat out of the country now.”
Agreed, if it were possible, and of which I am doubtful. It is easy to suggest to some ideal situation that would be an improvement over any practical one. I guess the question is whether one has mere faith that some hypothetical international structure would be “less bad” than the current circumstances.
I don’t know what the appeal process was for Google when Pakistan unilaterally knocked YouTube out of commission for several hours recently, either.
...and that’s the name of the game. If, for example, ICANN were considered a “model” of balanced representation, it’s a game I’d rather not play.
Meanwhile, Google apparently pays $350 per year for google.com.cu