ICANN is to terminate the contract of a Chinese registrar linked to dodgy pharmaceuticals web sites and other malfeasance.
Nanjing Imperiosus Technology Co, which does business as DomainersChoice.com, has been told it will lose its registrar accreditation February 3.
ICANN said in the termination notice that the company had failed to keep records related to abuse reports, failed to validate Whois records, and failed to provide ICANN with registration records, all in breach of the Registrar Accreditation Agreement.
The breaches related to complaints filed by illegal pharmacy watchdog LegitScript last September, I believe.
DomainersChoice and its CEO Stefan Hansmann were listed in Whois as the owners of potentially hundreds of domains that were being used to sell medicines for conditions ranging from heart disease to erectile dysfunction.
The domains 5mg-cialis20mg.com, acheterdutadalafil.com, viagra-100mgbestprice.net and 100mgviagralowestprice.net were among those apparently owned by the registrar.
According to LegitScript, thousands of DomainersChoice domains were “rogue internet pharmacies”.
The registrar has also been linked by security researchers to mass typosquatting campaigns.
The company’s web site even has a typo generator. While one could argue such tools are also useful to brand owners, DomainersChoice’s name suggests it’s geared towards domainers, not brands.
DomainersChoice had about 27,000 domains under management at the last count, which ICANN will now migrate to another registrar.
It’s not known how many of those were self-registered domains and how many were being used nefariously, but LegitScript CEO John Horton estimated (pdf) at least 2,300 dodgy pharma sites used the registrar.
ICANN has implicated a Chinese domain name registrar in the online selling of medications, including Viagra and Cialis, without the required prescription.
The organization’s Compliance department filed a contract breach notice with Nanjing Imperiosus, which does business as DomainersChoice.com, today.
The move follows an allegation from pharmacy watchdog LegitScript in the US Congress that DomainersChoice is “rogue internet pharmacy operator”.
Because ICANN has no authority to police online pharmacies, it’s gone after the registrar based on an obscure part of the Registrar Accreditation Agreement.
Section 3.7.7 of the 2013 RAA says that domains must be registered to a third party, unless they’re used by the registrar in the course of providing its registrar services.
According to ICANN, DomainersChoice has refused to provide evidence that many of its domains are not in fact registered to itself and CEO Stefan Hansmann, in violation of this clause.
It cites 5mg-cialis20mg.com, acheterdutadalafil.com, viagra-100mgbestprice.net and 100mgviagralowestprice.net as examples of domains apparently registered to Hansmann and his company.
Historical Whois records show Hansmann and Nanjing Imperiosus as the registrant of these names until recently.
The domains all refer to erectile dysfunction medicines, which are usually only available in the US with a prescription.
A reverse Whois lookup reveals Hansmann’s name in the records for many more pharmaceuticals-related domains, some of which are for more serious medical conditions.
Several of the domains contain the words “without prescription” or similar, where the drug in question requires a prescription in the US.
Some of the domains do not currently resolve or no longer provide current Whois records and others have been recently transferred, but some resolve to apparently active e-commerce sites.
ICANN’s breach notice (pdf) doesn’t allege any illegal activity.
The same cannot be said for LegitScript CEO John Horton, who lumped DomainersChoice in with a few other registrars he believes are operating “illegal online pharmacies”.
Horton testified (pdf) before Congress last month that the registrar was playing host to 2,300 such sites.
The testimony was filed September 14, the same day ICANN began its compliance investigation.
ICANN’s notice, which alleges a handful of other relatively trivial breaches, asks that Hansmann provide a full list of domains registered in his and his company’s name via DomainersChoice.
It also demands evidence that the domains were either used to provide registrar services or were registered to a third party.
It wants all that by November 2, after which it may start to terminate the company’s RAA.
ICANN may be able to provide registrars, intellectual property interests and others with clarity about when domain names should be suspended as early as next month, according to compliance chief Allen Grogan.
With ICANN 53 kicking off in Buenos Aires this weekend, Grogan said he intends to meet with a diverse set of constituents in order to figure out what the Registrar Accreditation Agreement requires registrars to do when they receive abuse complaints.
“I’m hopeful we can publish something in the next few weeks,” he told DI. “It depends to some extent on what direction the discussions take.”
The discussions center on whether registrars are doing enough to take down domains that are being used, for example, to host pirated content or to sell medicines across borders.
Specifically at issue is section 3.18 of the 2013 RAA.
It requires registrars to take “reasonable and prompt steps to investigate and respond appropriately” when they receive abuse reports.
The people who are noisiest about filing such reports — IP owners and pharmacy watchdogs such as LegitScript — reckon “appropriate action” means the domain in question should be suspended.
The US Congress heard these arguments in hearings last month, but there were no witnesses from the ICANN or registrar side to respond.
Registrars don’t think they should be put in the position of having to turn off what may be a perfectly legitimate web site due to a unilateral complaint that may be flawed or frivolous.
ICANN seems to be erring strongly towards the registrars’ view.
“Whatever the terms of the 2013 RAA mean, it can’t really be interpreted as a broad global commitment for ICANN to enforce all illegal activity or all laws on the internet,” Grogan told DI.
“I don’t think ICANN is capable of that, I don’t think we have the expertise or resources to do that, and I don’t think the ICANN multistakeholder community has ever had that discussion and delegated that authority to ICANN,” he said.
Grogan notes that what kind of content violates the law varies wildly from country to country — some states will kill you for blasphemy, in some you can get jail time for denying the Holocaust, in others political dissent is a crime.
“Virtually everybody I’ve spoken with has said that is far outside the scope of ICANN’s remit,” he said.
However, he’s leaving some areas open for discussion,
“There are some constituents, including some participants in the [Congressional] hearing — from the intellectual property community and LegitScript — who think there’s a way to distinguish some kinds of illegal activities from others,” he said. “That’s a discussion I’m willing to have.”
The dividing line could be substantial risk to public health or activities that are broadly, globally deemed to be illegal. Child abuse material is the obvious one, but copyright infringement — where Grogan said treaties show “near unanimity” — could be too.
So is ICANN saying it’s not the content police except when it comes to pharmacies and intellectual property?
“No,” said Grogan. “I’m saying I’m willing to engage in that dialogue and have that conversation with the community to see if there’s consensus that some activities are different to others.”
“In a multistakeholder model I don’t think any one constituency should control,” he said.
In practical terms, this all boils down to 3.18 of the RAA, and what steps registrars must take to comply with it.
It’s a surprisingly tricky one even if, like Grogan, you’re talking about “minimum criteria” for compliance.
Should registrars, for example, be required to always check out the content of domains that are the subject of abuse reports? It seems like a no-brainer.
But Grogan points out that even though there could be broad consensus that child abuse material should be taken down immediately upon discovery, in many places it could be illegal for a registrar employee to even check the reported URL, lest they download unwanted child porn.
Similarly, it might seem obvious that abuse reports should be referred to the domain’s registrant for a response. But what of registrars owned by domain investors, where registrar and registrant are one and the same?
These and other topics will come up for discussion in various sessions next week, and Grogan said he’s hopeful that decisions can be made that do not need to involve formal policy development processes or ICANN board action.
The Defending Internet Freedom Act of 2015, introduced to the US Congress last month, contains a provision that could be interpreted as pro-pron, pro-piracy or even just pro-crime.
The act is designed to prevent the US giving up its oversight of ICANN/IANA unless certain quite strict conditions are met.
It’s a revised version of a bill that was introduced last year but didn’t make it through the legislative process.
Like the 2014 version, it says that the US cannot sever ties with ICANN until its bylaws have been amended in various ways, including:
ICANN is prohibited from engaging in activities unrelated to ICANN’s core mission or entering into an agreement or modifying an existing agreement to impose on a registrar or registry with which ICANN conducts business any condition (such as a condition relating to the regulation of content) that is unrelated to ICANN’s core mission.
It’s the “regulation of content” bit that caught my eye.
Presumably written as a fluffy, non-controversial protection against censorship, it ignores where the real content regulation conversations are happening within the ICANN community.
It’s a constant mantra of ICANN that is “doesn’t regulate content”, but the veracity of that assertion has been chipped away relentlessly over the last several years by law enforcement, governments and intellectual property interests.
Today, ICANN’s contracts are resplendent with examples of what could be argued is content regulation.
Take .sucks, for a timely example. Its Registry Agreement with ICANN contains provisions banning pornography, cyber-bulling and parked pages.
That’s three specific types of content that must not be allowed in any web site using a .sucks domain.
It’s one of the Public Interest Commitments that were voluntarily put forward by .sucks registry Vox Populi, but they’re still enforceable contract provisions.
Using a dispute resolution process (PICDRP), ICANN would be able to levy fines against Vox Pop, or terminate its contract entirely, if it repeatedly allows porn in .sucks web sites.
This sounds quite a lot like content regulation to me.
It’s not just .sucks, of course. Other registries have PICs that regulate the content of their gTLDs.
And every contracted new gTLD registry operator has to agree to this PIC:
Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.
It’s convoluted, but it basically indirectly forces (via registrars) new gTLD domain registrants to, for example, agree to not infringe copyright.
The PIC is paired with a provision (3.18) of the 2013 Registrar Accreditation Agreement that requires all registrars to investigate and “take necessary and appropriate actions” in response to abuse reports within 24 hours of receipt.
Section 3.18 is essentially the RAA mechanism through which ICANN can enforce the PIC from the RA.
This is currently one of the most divisive issues in the ICANN community, as we witnessed during the recent Congressional hearings into ICANN oversight.
On the one hand, big copyright owners and online pharmacy watchdogs want ICANN to act much more ruthlessly against registrars that fail to immediately take down sites that they have identified as abusive.
On the other hand, some registrars say that they should not have to engage in regulating what content their customers publish, at least without court orders, in areas that can sometimes be amorphously grey and fuzzy.
Steve Metalitz, from a trade group that represents the movie and music industies at ICANN, told the US Congress that registrars are dismissing piracy reports without investigating them, and that “unless registrars comply in good faith, and ICANN undertakes meaningful and substantive action against those who will not, these provisions will simply languish as empty words”.
John Horton from pharmacy watchdog used the same Congressional hearing to out several registrars he said were refusing to comply with 3.18.
One Canadian registrar named in Horton’s testimony told DI that every complaint it has received from LegitScript has been about a web site that is perfectly legal in Canada.
In at least some cases, it seems that those pushing for ICANN to more stringently regulate content may have “internet freedom” as the least of their concerns.
If the Defending Internet Freedom Act becomes law in the US, perhaps it could prove a boon to registries and registrars upset with constant meddling from rights owners and others.
On the other hand, perhaps it could also prove a boon for those operating outside the law.
Momentous says CEO Rob Hall is NOT the man behind a registrar devoted almost exclusively to running “illegal” online pharmacies, after the US Congress was told he was a few hours ago.
In written testimony to Congress today, LegitScript president John Horton linked Hall to an “illegal online pharmacy network” called 4rx.
Horton said that the people running 4rx, which he said sells prescription drugs without a license, are also running the ICANN-accredited registrar Crazy8Domains
He went on to produce Canadian corporation records naming Hall as the sole director of the registrar.
I had a bit of a Google and found that Crazy8Domains says it’s based in a building in Ottawa that appears to have been once owned by Momentous.
But Rob Villeneuve, CEO of Momentous registrar Rebel, told us today that Crazy8Domains has not been part of Momentous for years. He said:
the Momentous group sold that Registrar over two years ago, and ICANN approved the sale. Mr. Hall and Momentous are no longer involved in Crazy8Domains in any way. We are unsure why the Industry Canada records have not been updated, and we have today notified Industry Canada of their error.
While Momentous may not be involved with Crazy8Domains, Horton presented some compelling evidence that it’s basically just a puppet registrar for an online pharmacy outfit.
It also goes by the name Kudo.com.
The contact name for the registrar listed by ICANN is Sabita Limbu, who is also listed in Whois as the registrant of domains such as indianpharmaonline.com, offshorerx1.com, and cheapestonlinedrugstore.com.
These sites offer hundreds of generic varieties of drug that purport to treat every condition under the sun, from erectile dysfunction to cancer.
Prescriptions do not appear to be required, and there’s a US toll-free number in case there was any doubt whose citizens are being marketed to.
Whether that’s illegal or not, I couldn’t possibly comment, but Horton told Congresspeople today that there are no countries where it is legal to sell prescription drugs without a license.
According to Horton, Crazy8Domains only has 18 domains live at present, and 15 of them are pharmacies:
In short, for all practical purposes, the ICANN-accredited registrar is the illegal online pharmacy, and the illegal online pharmacy is the ICANN-accredited registrar.
This means it would be virtually impossible for an outfit like LegitScript to get them taken down — any complaints made to ICANN would simply be referred to the registrar, which is in this case also the registrant.