Takedown of domain names - the rule of law and due process

This is a repost of a November 2011 guest post from Debbie Monahan, Domain Name Commissioner, DNCL (a wholly-owned subsidiary of InternetNZ), in the context of the 2011 London Conference on Cyberspace. We have re-posted it on the occasion of a presentation by Debbie at the ccNSO Members meeting at the 58th public ICANN meeting held in Denmark in March 2017.

There is a concerning trend where domain names used, or alleged to be used, by miscreants to facilitate fraud and theft over the Internet are becoming the target of law enforcement agencies which seek the immediate removal of the name from the DNS without following due process.

There is a risk in this “shoot and ask questions later” approach that the line between what is reasonable and what could be considered to be an abuse of power becomes blurred with the potential for fundamental principles that underpin our rule of law to be undermined.

New Zealand, like a number of other countries including the United Kingdom, United States and Australia, is a common law jurisdiction with due process a key principle of the rule of law. Our rule of law encompasses safeguards against the abuse of wide discretionary powers and ensures that a person or party is given the opportunity of a fair hearing before an impartial court or tribunal before they are negatively impacted by a decision of which they had no knowledge or input.

Is the Internet sufficiently different to warrant the application of different standards and approaches for ‘offences’ committed, or alleged to have been committed, over this medium relative to other sorts of offending? To what other offences are the police able to say ‘that’s breaching the law’ and get their desired result without testing it through an independent arbitrator or court, or giving the ‘offender’ the opportunity to have input or comment.

While all support the containment of unlawful acts by law enforcement agencies, care must be taken before agreement to takedown without due process is granted. The potential otherwise is the commitment of a ‘wrong’ by the state.

In addition to the rule of law argument, there is also a question of ‘reasonableness’ and when it is appropriate for law enforcement to intervene. There are many possible ‘offences’ that could be committed over the Internet – what constitutes a case that warrants law enforcement involvement and a decision to invoke a takedown of a domain name without due process? Reference is sometimes made to ‘clear criminal activity’ as a subjective test but what does this mean? Law enforcement agencies must present a case to the courts for determination, regardless of the perceived strength of evidence or the apparent ‘clarity of offending’.

It is important that law enforcement agencies work with relevant authorities, including the courts and local domain name registries, to adopt balanced processes for the takedown of domain names. Without that balance, deliberately sought, there is real risk that our rule of law is undermined. The blurring of the boundaries that determine where and when action may be taken without due process will compromise citizens and law enforcement agencies alike.

Such a collaborative approach to resolving this issue is consistent with the multi-stakeholder approach upon which the Internet has been built. The dialogue must involve civil society, the private sector and the technical community working together with government and law enforcement agencies to find appropriate solutions that ensure accountability and transparency in actions. Takedown of domain names may be a reasonable and appropriate response to a given situation but only after following due process. Indeed there is already precedent for the cancellation of .nz domain names due to breaches of policies and failure of registrants to undertake the required remedial actions. Additionally, .nz has developed template documents to assist parties in gaining appropriate and timely court orders to enable action. These have been provided to banks and law enforcement agencies and have been successfully used in the past. This approach can be developed further to ensure Internet offending is dealt with in a manner consistent with the New Zealand rule of law.

New Zealand has a reputation for operating fairly and respecting the rights of its citizens. It is important this isn’t undermined by accommodating actions in breach of due process.