ICANN just issued a “thought paper“” entitled “Guidance for Preparing Domain Name Orders, Seizures & Takedowns”
According to ICANN this “thought paper” offers guidance for anyone who prepares an order that seeks to seize or take down domain names. ”
However having read through the paper, what I don’t see discussed is the legal rights of registrants and protections they should be given from domain seizures.
The “thought paper” from what I read assumes the domain holder in question is guilty of criminal conduct and doesn’t even discuss the possibility that the domain holder is innocent and in anyway caution law enforcement from taking an action prematurely before law enforcement is quite satisfied that the party is in fact in violation of the law.
I also didn’t see anything in the thought paper about returning a domain name to the domain holder if and when it is determined that the domain holder didn’t engage in any wrongdoing.
The paper was prepared by Dave Piscitello, Senior Security Technologist at ICANN, with the assistance of the ICANN Security Team. ICANN welcome additional comments. Please forward all comments by electronic mail to email@example.com
“Its purpose is to help preparers of legal or regulatory actions understand what information top level domain name (TLD) registration providers such as registries and registrars will need to respond promptly and effectively to a legal or regulatory order or action. ”
“Generally, court-issued seizure warrants or restraining orders in the United States or similar governmental jurisdictions identify the required, immediate actions a party must take and accompany these with sufficient information for domain name registration providers such as registry operators or registrars to comply. Domain name registration providers can promptly obey complaints or legal or regulatory actions (or voluntarily cooperate with law enforcement agents and the private sector) when the instructions of the court or regulatory entity specify the immediate and long-term actions required as completely and unambiguously as possible”.
“Providing all of the information that registry operators or registrars need to comply with an order or request requires some familiarity with Internet protocols, technology and operations. Law enforcement agents, attorneys, officers of courts and others who are not familiar with the operation and interrelationship of domain name registration services, the domain name system (DNS), and WHOIS services can benefit from a reference list of questions and guidance for “answers” (information) that ideally would be made available when action is specified in a court order”.
“We offer a list of questions and encourage preparers to answer each when the legal or regulatory action seeks to seize or take down a domain name. For each question, a checklist or explanation of information that preparers should make available to registry operators or registrars is provided. Note that it may not necessarily be the case that all of the information identified in this list will be relevant for all types of seizure or take down actions”.
“The information discussed here is not exhaustive, nor are these questions prescriptive. However, the preparation and execution of actions or orders may be expedited if these details are considered during the preparation of a legal or regulatory action or during the onset of an incident involving the DNS, including domain name registrations”.
“The comments and recommendations made in here are based on experience with actions and orders that have been prepared and executed by U.S. courts. This is a lay document. Its authors and contributors are technical and operational staff, not attorneys [although persons with legal expertise were consulted in the preparation.”
“We offer no legal advice here.”
“Our purpose is to share “field experience” so that these can be taken into consideration for future actions and orders involving domain name seizures and take downs”.
“Domain name seizures are typically ordered in association with criminal acts”.
“Preparers of orders should consider whether disputes concerning alleged abusive registrations of domain names (e.g., bad faith use, confusing similarity) may be handled through the Uniform Domain Name Dispute Resolution Policy and administrative procedure”