Prosecutors in Sweden have sued the root domain registry of .SE domains to kill the domain name of The Pirate Bay. The root registry fights back heavily. This case is important to watch, as it can have thoroughly chilling results for the Internet’s domain name system if criminal secondary liability is established at the DNS level.

Nobody can say that the prosecutors are after justice – they are after results. In the initial lawsuit against IIS, the foundation that manages the root .SE domains, they insisted on an ex parte decision – meaning that they demanded the court to issue a domain seizure order, a final decision in this case, without allowing the accused to speak in their defense. That is not any normal kind of justice.

Just so we’re clear – this is not your average domain registrar, like GoDaddy, EuroDNS, or DomainDiscover. This is the domain registry, the root database of .SE domains, managed by the Swedish Internet Foundation (the IIS), which is the technical back-end to all those domain registrars you see. This makes the prosecutor’s actions even more jaw-dropping.

UPDATE

For the really technically minded, the registry referred to here is the top-level .SE ccTLD, managed by the IIS foundation. It is popularily described as Sweden’s root registry, but calling it a “root registry” would not be appropriate in the purest of technical settings, where it would be called a “top-level ccTLD” instead.

The IIS tells its side of the story, saying that;

In the eyes of the prosecutor, .SE’s catalog function has become some form of accomplice to criminal activity, a perspective that is unique in Europe as far as I know. There are no previous cases of states suing a registry for abetting criminal activity or breaching copyright law. Anyhow, Sweden strives to be the best and first in terms of the Internet, even if the country’s track record for this is highly questionable. And they want to do it quickly as well. Right before the Ascension holiday, we received the petition with two weeks to respond. The time to respond have now been prolonged until the beginning of June. The prosecutor believes that this is so pressing that the district court would be able to make a decision on the matters without deliberations.

The IIS is having none of it, of course, and are fighting back. This angers the prosecutor even more, who went on record in the newspapers saying this:

Ingblad [the prosecutor] also states that the foundation makes itself guilty of aiding and abetting assistance of criminal copyright monopoly infringement by not de-registering piratebay.se. “No charges have been filed”, says Ingblad, “but objectively, they are charging money to maintain a domain name for an activity that they know is criminal.”

This takes secondary liability, not to mention criminal secondary liability, to a whole new level.

(Fredrik Ingblad is one of Sweden’s two prosecutors that are dedicated to persecuting sharers of culture and knowledge, which is itself a questionable priority of judicial resources, seeing how confidence in Sweden’s judicial system is dropping like a rock.)

Even the mere hint of criminal secondary liability at the DNS root registry level for everything that happens on the web is nothing short of catastrophic for the Internet infrastructure and future economic development.

If secondary liability is established at the DNS level, not to mention criminal secondary liability, I predict the Internet community will drop DNS as a backbone protocol like a bad habit, and replace it with something different that is resilient to lawsuits and prosecutors. This would not be unprecedented, even for a backbone standard; it has happened many times before when technology has proven to be vulnerable to legal action, such as when the mature and ubiquitous Gopher protocol was dropped in favor of the new and untested HTML as hints of Gopher license requirements surfaced, when PNG was developed as a replacement for the suddenly lawsuit-riddled GIF format, and perhaps most pertinently, when BitTorrent replaced the vulnerable Napster protocol.

The IIS comments end on a quite relevant note:

This will be an expensive process and, although our lawyers will find it an interesting case, these are funds that we would rather spend on our investments in schools or digital inclusion.

See also the IIS’ own blog post (in English) on the case, as well as recent TorrentFreak coverage.