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Net neutrality died this week, but did it ever really exist?

Thursday, June 14, 2018 5:05
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This week saw many leading technology websites publish articles about how new rules, which came into force on June 11 2018, will allow internet service providers to prioritize certain internet traffic, and reduce the speed of other traffic as they decide. This, the commentators say, is the beginning of the end of “net neutrality”, but actually the internet has long been run in a way which is far from neutral. Since the early days of the web, and increasingly in recent years, weaknesses in the legal framework governing the use of the internet’s domain name system have allowed some rogue US government agencies to confiscate private property without proper legal procedures being carried out, as shown by the cases later being thrown out of court. Websites involved in merely talking about subjects which could be implicated in copyright infringement, such as file sharing or using online pharmacies, have been especially affected.

Cases are mounting of innocent website owners having their website names confiscated, with few legal protections and due process rules to protect them in situations where they are presumed guilty just by being accused. It is not just the website owners who suffer when domain names are confiscated unjustly. Many seized websites host active communities of users, who invest significant time and effort building up information pools for everyone to share, only to see all their efforts wasted when the domain disappears suddenly one day and leaves the underlying website impossible to find. In theory, the underlying website in such cases is still accessible through its IP address, a 12 number unique identifying address, but in practice, very few users know the IP address let alone note them down. The underlying websites are often still available, as US Constitutional protections on freedom of speech provide safeguards against rogue government agencies actually raiding the servers on which the supposedly-copyright infringing content is based. This is the case even when the servers are within the United States.

Shockingly there have been several cases where no copyright abuse has actually taken place and yet the website has still been seized by US courts. In 2010, four hip-hop music blogs had their domain names seized in what looks now to have been a bureaucratic error, simply because the same owner also ran another site discussing file sharing. The domains were finally returned after 5 years of expensive and time consuming court fights with the government agency involved. Another example was of a huge health forum which discusses online pharmacies, whose original .com domain was confiscated, forum, with no warning of the alleged copyright infringement being issued to the site owner. The ICE government agency alleged that this discussion site had been using copyrighted medicine logo images, despite the fact that the site is not a shop. Questions abound about whether the government agencies are incompetent or actually wilfully misusing the law to confiscate private property without due cause.

It would be easy to assume that the problem of US courts unreasonably confiscating .com domain names had been solved after the body responsible for governing the internet’s domain name system, ICANN, was moved from being under the control of the US Department of Commerce and the functions were transitioned to international control in October 2016, but this would be wrong. US courts can still do the bidding of US government agencies making unsubstantiated claims of copyright infringement, by confiscating any .com, or .net names, because of the unusual way in the way the domain name system is set up. In practice, an American company, Verisign, ultimately controls all .com and .net domain names through ownership of part of the naming infrastructure for these suffix domain names (by far the most common and prestigious on the web even today). US courts have jurisdiction over US companies, which gives them jurisdiction over all .com domain names even when the name is registered through a domain name registrar company based outside the United States, no matter which country the registrar company is based in. However, the situation looks to be changing. Neither US courts nor Verisign, have any control over country-level domain name suffixes such as .se and many countries allow foreign businesses and individuals to use their domains without being connected to the country. In this way, website owners who feel at risk of arbitrary domain name seizures can now shift to using such alternative domains, and the power of US government agencies to censor the internet looks like it is entering a sunset phase.

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