Much of the time I have a blog entry due, I find myself casting about for good topics. Sometimes I turn to (my literally dozens of) Twitter followers for inspiration. Sometimes I go whine to Jen, our PR manager and my de facto editor, about how hard it is to think up new subjects regularly, and she reminds me of a topic I came up with weeks ago and promptly forgot.
This week, though, I find myself with an obvious topic but afraid to touch it. But as my wife will attest, discretion has never been my strong suit, so here goes.
Last month, the U.S. government seized of dozens of domain names allegedly associated with the illegal sale and distribution of counterfeit goods and copyrighted works. Based on the description of the operation on ICEs web site, the case against the owners of these web sites appears strong. And I'm very sympathetic to the plight of copyright holders as a copyright holder myself, who often finds his works posted on web sites outside U.S. law enforcement jurisdiction.
But these seizures accomplish more than just shutting down a web site.
First, they increase the perception that the U.S. government has a special and privileged role in Internet governance. Could the government of Bhutan have forced VeriSign to change the delegation of 82 domains as easily as Washington did? I doubt it.
The seizures also raise the question of jurisdiction. Is the Internet subject to the laws of every country on Earth? If a company's web site runs afoul of the regulations of some random reactionary regime, can that regime demand the companys domain name? Or does each registry answer only to the laws of the country in which it's incorporated? In which case, couldn't registry operators flee to some permissive nation, some Switzerland of smut or Panama of porn?
Theres also the issue of due process (in my opinion, anyway, and I'm certainly no lawyer). From the list of domain names involved, these companies were small players, and ICEs release says many were based outside the U.S. ICE went to U.S. magistrate judges to issue the orders to seize the domain names, so there's evidently some process at work. But I have no doubt that there are bigger U.S. companies who inadvertently, I'm sure, are involved in trafficking counterfeit goods. Had they been implicated, I can't imagine the government would have simply seized their domain names without warning.
Finally, I'm not convinced of the long-term efficacy of commandeering a domain name. How much effort is it for the affected merchant to buy a new domain name from a registry beyond the reach of ICE? Isn't this just the beginning of a game of global Whac-A-Mole? (<- Please note my careful use of the trademark symbol.)
As I said before, though, I'm not a lawyer, and I leave it to those of you who are to set me right and explain why my fears are unjustified.