This is absolutely and utterly wrong as was demonstrated by the National Arbitration Forum decision handed down yesterday. We’ll repeat the key findings here:

“To permit a registrar of record to withhold the transfer of a domain based on the suspicion of a law enforcement agency, without the intervention of a judicial body, opens the possibility for abuse by agencies far less reputable than the City of London Police. Presumably, the provision in the Transfer Policy requiring a court order is based on the reasonable assumption that the intervention of a court and judicial decree ensures that the restriction on the transfer of a domain name has some basis of “due process” associated with it.” NABP then claims that because the sites they go after are (ostensibly) fraudulent, it can be prevented from transferring away under the TDRP:

Prohibiting transfer is consistent with ICANN’s Inter-Registrar Domain Name Transfer policy, which permits “fraud” as a basis for denying transfer. Which was also specifically addressed in yesterday’s ruling and determined to be absolutely and totally wrong: “the reference to “evidence of fraud” in the Transfer Policy does not refer to fraudulent conduct by the holder of the domain name, but evidence of fraud with respect to the transfer of that domain name. See GNSO Issues Report, Inter-Registrar Transfer Policy Part B at 14-15 (May 15, 2009).” And finally: #4 There is an appeal process to this, but you will lose. If you or the registrant believe that they should be entitled to transfer the domain name, or simply wish to challenge the suspension, LegitScript, with NABP’s support, maintains an appeals process for rogue Internet pharmacy domain names. More information is available by contacting abuse.team@legitscript.com. Note, however, that due to the high level of accuracy involved in the abuse notification process, there has never been a successful appeal, even past Stage 1.

This is the second instance of non-governmental or quasi-governmental agencies reaching into the language in the 2013 ICANN RAA and trying to use it to compel registrars to takedown and seize domains without due process.

We have never received a takedown request from LegitScript, I don’t know if NABP has sent this letter to all Registrars or maybe just the ones who are in the habit of asking troublesome questions (i.e. “please show us the legal finding that makes X illegal”).

I’ve replied back to them outlining my concerns and I’ve also reached out to our ICANN liaison for some guidance on the language in the 2013 RAA, particularly Sections 3.18.1 and 3.18.2 (the parts that turn us all into global supercops).

It really is getting creepy out there.

We now know that we live in a total surveillance society, governments are printing money, going broke, manufacturing consent and lying about nearly everything; while quasi-governmental agencies all over the world are now asserting they have the authority to overturn legal process and basically dictate everybody else’s business.

This script is playing out almost verbatim what we wrote only three years ago in “First They Came For The File Sharing Domains”.

Who will be the next batch of clowns who tell us they can use liberally interpreted language in a couple of agreements that they aren’t even party to to compel us to takedown your website? Let’s start a betting pool.

Further Reading