Domain name seizures and .CA

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Domain name seizures have been top-of-mind for many people lately.

It was one of the topics identified at the Canadian Internet Forum, and the high profile seizure by the U.S. government of the Canadian online gambling site bodog.com has been getting a lot of media attention. This also isn’t the first time the U.S. government has seized domain names based on ‘illegal’ activity. In 2010, a number of .COM, .NET and .ORG domains were seized, and a country code top-level domain (ccTLD) operated by VeriSign in California, .TV, was seized as well. In 2011, another 150 were seized.

For the most part, the Internet does not recognize national borders. Internet traffic is routed all over the globe, and it’s possible to register a domain using a wide variety of domain name extensions.

Here’s the thing – the stuff to the right of the dot matters: note that bodog.ca still resolves.

If you register a domain name with an extension that is managed in another country, it is likely subject to the laws of that country – full stop. If a website is found to be in violation of American law, and the domain for that site is an extension managed by a U.S. entity, the U.S. government may seize it.

If you keep your business in another country (in the case of Canada, register a .CA with a Canadian Registrar and use a Canadian web host), foreign governments can’t unilaterally seize it. CIRA has never been asked by a foreign government to shut down or seize a domain name.

The DNS root zone does fall under American jurisdiction with ICANN (through IANA) as the operator. However, ICANN has explicitly stated in a blog post that they do “not take down domain names” and that they “have no technical or legal authority to do that.”

The fact is ICANN couldn’t cherry-pick domains even if it wanted to. If the U.S. government decided that they wanted to shut down a .CA website, and tried to do it through ICANN, they would have to shut down all of .CA in the root zone. This would involve cutting off every single .CA website and email address from the Internet, and they’re not going to do that for a number of reasons (not the least of which is the fact that shutting down the entire .CA domain space and everything in it would be a major international incident).

The global economy would freeze if the U.S. government took such an action. The underpinnings of the Internet would be completely undermined. Think about this: the U.S. government hasn’t even shut down the Internet in nations they’ve been at war or have very strained relations with – Iraq, Libya, Iran are just a few examples – because the trust that supports the Internet is fundamental to the economic and social well-being of humanity.  Given that, why would they shut down an entire top level domain over a single website?

The Internet has brought us incredible benefits, many due to the fact that it breaks down national and geographic borders.  However, because of the very nature of the Internet – the fact that it is ‘virtual’ and ‘in the cloud’ – most of us don’t tend to think of it being governed by the laws of a particular nation. But as the bodog.com case demonstrates, it is critically important to be aware of which jurisdiction your digital assets are in, and therefore what laws they may be subject to.

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  • http://jamesplotkin.blogspot.com James Plotkin

    It’s refreshing to know that the U.S. Government won’t shut down .CA. That being said, I wonder what effects ACTA and SOPA/PIPA (if Passed) will have on the internet situation north of the border. Presumably, CIRA would still have to comply with any take down requests.

    While the Americans shutting down .CA unilaterally would surely make huge waves, CIRA refusing to “homologate” American take down request couldn’t help relations with them either.

  • McTim

    Hi Byron,

    excellent post, as usual…I am wondering, since you have never “been asked by a foreign government to shut down or seize a domain name”, do you have a procedure “on the shelf” ready to be dusted off and used if such a request came in?

  • Byron

    CIRA is subject to the laws of Canada. If we are ever the subject of a Canadian court order or judicial instrument, we would comply. We are not subject to the laws, or wishes, of foreign jurisdictions and, as such, would not be bound by any such requests.

  • http://adnausi.ca/ Chad English

    This may represent how things currently stand, but that doesn’t mean we should feel safe. SOPA could have changed that dynamic, and efforts still exist to get SOPA-like laws in place.

    Consider the case that SOPA defined Canadian (and Carribean) websites, domain name servers, service providers, advertisers, and payment networks as U.S. “Domestic Internet Site” on the basis of IP address (since Canadian & Carribean IP addresses are assigned by the ARIN), but would be defined as a “Foreign Domain Name” based on a .ca addresses.

    Hence, under SOPA, a Canadian site (IP address) could be ordered by a U.S. court to block it’s own .ca domain name. If it decided to ignore the order, being a Canadian company, the U.S. could order all U.S.-based support organizations from facilitating the Canadian site, including pay sources like PayPal or credit card companies, or advertising like Google AdSense.

    Under such laws, the U.S. could effectively force Canadian companies, operating on Canadian soil, with Canadian IP address, and .ca domain names, directed at Canadian customers, following Canadian law, to conform to U.S. law (such as copyright) or suffer severe financial penalties. The entire process can bypass CIRA completely.

    Yes, SOPA is not in and Bodog doesn’t quite fit this scenario, but given Bodog, Megaupload, and TVShack cases, and the efforts to get SOPA-like laws in place, there is still very much to be worried about.

  • http://daltoncommunications.ca Jorge de Mendonca

    The issue of foreign governments either seizing or blocking national dot-CA domains does have a flip side as well; namely, what is CIRA doing regarding dot-CA names that appear to be held by off-shore companies for the sole purpose of reselling the domain name? As an example, there is a company based in the Cayman Islands which appears to solely be a broker selling domain names at inflated prices, among which are dot-CA names. Even CIRA’s own WhoIs registry has the domain ownership based in the Cayman Islands. Yet, when you go to the sites in question they have no Canadian content, only various links including one that points to a sales page for that domain name.

    As a user of dot-CA domain names I am not as worried about the transgressions of foreign governments attempting to police the internet based on their own laws, however relevant, as I am about CIRA properly managing the ownership of dot-CA domain name and usage so that it is fair for Canadians.

  • Byron

    Hi Jorge

    Please keep in mind that Canadians live all over the world. As long as you are Canadian (among other categories) you can have a .ca, regardless of where you live.

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  • http://daltoncommunications.ca Jorge de Mendonca

    Thank you for your comment Byron, but to clarify, I was talking about a site that is not in use and is for sale through a company registered outside of Canada. If it is in use, and owned by a Canadian – either individual or corporation – I do not have an issue with it. It is when domain names are being registered for the sole purpose of resale with no apparent Canadian connection that I find CIRA falling short of its mandate.

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