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.health backer has cop-like takedown powers for all gTLDs in Japan

Kevin Murphy, December 8, 2014, Domain Registrars

LegitScript, a US company focused on eradicating illegal online pharmacies, which backs the .pharmacy and .health gTLDs, has been given police-like powers to have domain names taken down in Japan.

It has also emerged that when IP Mirror, a brand protection registrar, was hit with an embarrassing ICANN contract-breach notice in November, it was as a result of a LegitScript complaint.

Under section 3.18.2 of ICANN’s 2013 Registrar Accreditation Agreement, registrars must have a 24/7 abuse hotline that can be used by “law enforcement, consumer protection, quasi-governmental or other similar authorities” to report illegal activity.

Registrars must act on complaints made to the hotline within 24 hours, but only authorities designated by national governments get to use it.

Now, it transpires that LegitScript has been formally designated a 3.18.2 authority by the Japanese Ministry of Health, Labor and Welfare.

That means the US company’s complaints about domains hosting potentially illegal pharmacy sites have the same weight as complaints from the Japanese police, when made to registrars that have an office in Japan, even if they’re headquartered elsewhere.

IP Mirror, which was recently acquired by CSC Digital Brand Services, is based in Singapore but has an office in Tokyo.

As far as I can tell, most of the top 10 registrars do not have offices in Japan. KeyDrive (Moniker, Key-Systems etc) may be the exception. GMO is the largest registrar based in Japan.

LegitScript announced its relationship with the Japanese ministry in September (I missed it at the time) and company president John Horton provided some context to the IP Mirror breach notice on CircleID today.

I only report the deal today because it strikes me as noteworthy that a private enterprise has been given the same powers under the 2013 RAA as law enforcement and government consumer protection agencies — and it’s not even in its home territory.

Horton told DI today that while LegitScript is legally based in the US and has offices in the EU, only Japan has so far formally granted it 3.18.2 powers. He said in an email:

We only have formal Section 3.18.2 designation in Japan at present. We have some other endorsements or recommendations by or on behalf of government authorities, although they do not specifically reference Section 3.18.2. We work closely with the Italian Medicines Agency and the Irish Medicines Board, for example, and report rogue Internet pharmacies in consultation with them.

Horton pointed out that anybody is able to to file abuse complaints under the 2013 RAA — and registrars are obliged to “take reasonable and prompt steps to investigate and respond appropriately”.

His CircleID piece cites two instances in which such complaints from LegitScript resulted in ICANN breach notices.

The chief difference is that under 3.18.2 registrars do not have much flexibility in their response times. They have to “take necessary and appropriate actions” within a black-and-white 24-hour deadline.

FDA to get domain name takedown role?

Kevin Murphy, October 4, 2010, Domain Policy

The US Food and Drug Administration may in future take a stronger role in having domain names associated with rogue internet pharmacies shut down.

Following the meeting between domain name registrars and registries and the Obama administration at the White House last week, I reached out to a few attendees to find out what was discussed.

I didn’t have much luck, to be honest. Some said the meeting was quite dull. But Christine Jones, Go Daddy’s general counsel, was good enough to answer a few questions via email.

The meeting was scheduled to discuss voluntary measures domain firms can take to shut down web sites selling counterfeit pharmaceuticals. I asked whether any specific solutions were discussed.

Jones replied: “Not specifically. There could be an FDA-led solution at some point, which Go Daddy supports.”

The FDA has taken action against illegal online pharmacies in the past, but it does not currently appear to do so on a day-to-day basis.

In November 2009, the agency sent warning letters to the operators of 136 web sites that appeared to be selling medicines illegally. The letters were also sent to the registrars of record for the sites’ domains, most of which were taken down.

The FDA said at the time that the intention was to alert the registrars that the registrants in question may have been in violation of their terms of service and eligible for termination.

In general, the FDA says that overseas pharmacies selling prescription drugs into the US, whether counterfeit or not, is illegal. What this would mean for any “FDA-led solution” is a matter for speculation.

It’s well-known that sick people in the US tend to pay more for their prescription drugs than in other nations, due in part to years of protectionist policies designed to keep the pharma business healthy.

While there are plenty of crooks selling potentially dangerous bogus pills online, some say there are also many legitimate Canadian pharmacies online that supply authentic products more cheaply to US-based prescription holders.

Currently, many US registrars use services such as LegitScript to identify potentially infringing sites. Demand Media’s registrar, eNom, is the most recent convert.

LegitScript, which also only approves US pharmacies, is subject to a certain degree of controversy.

Last week it threatened to sue a web site that made a number of allegations about its financing and the motivations of founder John Horton.

Horton founded LegitScript in 2007, shortly after leaving his Bush administration role as associate deputy director of the Office of National Drug Control Policy.

LegitScript’s main competitor, PharmacyChecker.com, recently asked the US Congress to investigate Horton for alleged ethics violations, claiming he set up LegitScript while still in government.

In April 2007, the ONDCP issued a report which harshly criticized PharmacyChecker for approving Canadian pharmacies that sell drugs to US citizens over the internet, which it said was illegal.

The domain name legitscript.com was initially registered on March 20, 2007. The earliest Whois record I can find, from July that year, shows Horton was the registrant.

Horton’s LinkedIn profile says he left the administration in May 2007.

It seems likely that even if LegitScript did not exist until Horton was out of government, he was preparing its foundations months earlier, at the same time as his office was trashing his future competitor.

Finally, to return to last week’s White House meeting, I asked Go Daddy’s Jones whether the focus was on healthcare or IP protection, and she had this to say:

The focus of this particular meeting was definitely not IP protection. Although IPEC [Intellectual Property Enforcement Coordinator] organized the meeting, there were administration officials and law enforcement attending from many areas of the government. The focus was on finding ways to deal with the rogue pharmacy issue, to get non-compliant registrars to join the fight, and to beef up AUPs to cover registrars in these cases.

She also said that the topic of COICA, the Combating Online Infringement and Counterfeits Act, was not raised.

As I’ve previously reported, ICANN did not attend the White House meeting.