Kentucky is just the beginning
This is a guest post written by Richard Douglas. He is the CTO of Secure Hosting Ltd., a company specializing in offshore servers with offices in Nassau, Bahamas and Kingston, Jamaica. Secure Hosting has been providing offshore web hosting services to clients since 2001.
The recent news about the Kentucky 141 is just the beginning. It is expected that there will be more court challenges to more domains in the coming months.
Remember that a court order from a US court can only be enforced in the USA. Most foreign countries simply ignore US court orders. It is very difficult and expensive to ‘domesticate’ a US court order in a foreign country, and they are normally never successful unless the action involves criminal activity such as drug dealing, money laundering etc.
Threats to domains
Domain owners are threated with lawsuits and invasion of privacy (think email and web server logs) every day. By using a registrar and web hosting outside the USA, you can make these threats go away.
Some types of threats to domain owners are:
1. Threat of civil lawsuit from a US attorney
2. Attempts to enforce a US court order
3. Legal threats to find the identity of the domain owner or web site operator
If you are using a US based registrar and hosting your web sites in the US or using a US parking/landing page company, then you’re in a mess of trouble. You’ll need to hire some attorneys and get ready for a lengthy and expensive battle to protect your assets.
In many cases, the courts will accept the weakest of arguments to allow a court action to go forward.
Generally, the US registrar and hosting companies will give in immediately and hang their domainer clients out in the wind once they receive a threat from an attorney or receive a notice from a US court. They simply do not want to deal with the hassle of being in the middle of any court action involving their client.
If you are hosted offshore using a registrar outside the USA, then none of these threats get very far. US court orders are not enforceable in foreign countries. US attorneys will say that they will take their court order and ‘domesticate’ it in the foreign court, or that they will hire local attorneys and sue you in a local court. These are lengthy and costly processes that typically get nowhere.
We’ve never seen a US court order domesticated and enforced in the Bahamas, nor a US civil action enforced in the Bahamas. And those phone calls and faxes trying to find out who owns a domain or operates a web site fall on deaf ears. As you might imagine, foreign courts are not as efficient or as sophisticated as US courts.
How to protect yourself
It is fairly easy to protect your domains and web site content. Most of the ‘big guys’ are already doing it. Sure, it takes a little work and might cost a little more, but it is worth it to protect your domains in the long run.
1. Chose a domain registrar and hosting company with a head office and staff outside the USA – i.e. no ties to the USA whatsoever. The Caribbean, Europe and Asia are all good places to look for a reliable company to work with.
2. Ask questions and do your homework. Many registrars and hosting companies may be headquartered outside the USA, but they host web sites (or their entire business) inside the USA. Perhaps they even have an office and staff inside the USA. This makes them subject to US law and you are wasting your time doing business with them to protect yourself because they will be forced to company with any US court order presented to them.
3. If you are using a parking/landing page solution, ask the company if they have an offshore parking/landing page solution. Some companies are already offering this, and I’d expect many more to start offering it soon.
Using a registrar and hosting company outside the USA is not going give you any protection if you are involved in copyright infringement, intellectual property theft or spamming. Most companies around the world will turn down your business or shut you down for doing these types of illegal activities.
But if you are a typical domain owner, by following these simple steps you can sleep better at night knowing that you won’t wake up one morning to find that your domains – and your entire livelihood in many cases – has been transferred to Kentucky or the next threat to come along.