UK and US authorities are tightening their control of the internet in their fight against copyright pirates and counterfeiters.
But their moves may reverse the principle that people are innocent until proven guilty, and open the way to censorship of online material such as the diplomatic cables published by Wikileaks.
This threat to the internet's free expression is provoking a backlash in the internet community that may make it harder to police.
In the latest move against online criminals, US law enforcement authorities seized 82 websites this week, alleging they distributed illegal copyright or counterfeited material. Among the brand names mentioned in the list of seized domain names are Burberry, Louis Vuitton, Nike and Timberland.
Some site owners were quick to move their data to servers outside US influence (including domains managed by Verisign), leaving Twitter messages pointing customers to the new domain.
Also this week, Nominet, which manages the .uk and .44 domains, said it would work with the Serious Organised Crime Agency to safeguard the domains from criminal use.
It said it would explore a change to Nominet's terms and conditions that would allow it to suspend domains where it had reasonable grounds to believe they were being used to commit a crime. Such grounds could be a request from an "identified UK law enforcement agency".
A year ago Nominet responded to police requests to shut down 1,200 false-front websites.
Shortly after that, the government threatened to take direct control of Nominet.
These recent state actions appear to tie in with agreement of the words of the multilateral Anti-counterfeiting Trade Agreement (Acta). The text is now with the parties, which include the UK and US, for legal review.
According to a report on Torrent Freak, the goal is to "create an application that runs as a service and hooks into the hosts DNS system to catch all requests to the .p2p TLD (top level domain) while passing all other request cleanly through. Requests for the .p2p TLD will be redirected to a locally-hosted DNS database.
"By creating a .p2p TLD that is totally decentralised and that does not rely on ICANN or any ISP's DNS service, and by having this application mimic force-encrypted BitTorrent traffic, there will be a way to start combating DNS level based censoring, like the new US proposals as well as those systems in use in countries around the world including China and Iran."
The move is a response to proposed US legislation, the Combating Online Infringement and Counterfeits Act (COICA), which is presently before the US senate, as well as the recent take-downs.
Presumption of guilt
If passed, COICA will change the US federal criminal code to authorise the Attorney General (AG) to ban a domain name used by an internet site that is "dedicated to infringing activities," even where such a domain name is not located in the US.
It defines such sites as subject to civil forfeiture, designed primarily to offer goods or services in violation of federal copyright law, or selling counterfeit goods.
It requires the AG to maintain a public listing or blacklist of domain names that the Department of Justice (DOJ) claims are "dedicated to infringing activities", but for which the AG has not filed an action.
It "allows parties to petition the AG to remove such a domain name from the list and obtain judicial review of the final determination in a civil action".
The difficulty with the authorities' actions is that they precede court action. This effectively reverses the principle that people are innocent until proven guilty.
Nominet's director of operations Eleanor Bradley believes that, provided the process is "legitimate" - that is, that enough interested parties have given their assent - this is a "pragmatic" response to a clear problem, although the exact nature and scale of the problem is in dispute.
Eleanor Bradley says Nominet will invite interested parties to debate the change in the terms and conditions Nominet imposes on its customers. However, the list on the website has not one representative from civil society; all are government or industry bodies (see panel below).
It also provides the authorities with a potentially less controversial route than the Digital Economy Act to fighting copyright thieves. Following victory for ISPs BT and TalkTalk, the parts of the act that deal with copyright infringement and prevention will go to judicial review in the new year.
Computer Weekly asked ISPA, the trade body for internet service providers (ISPs), for comment, but it was holding its annual conference. It is believed these moves were on the agenda.
|Organisations Nominet believes "would usefully be involved in the discussion" on how to take down websites without a court order|
|Serious and Organised Crime Agency (SOCA)|
|Police Central e-Crime Unit (PCeU)|
|OFT Cybercrime Unit|
|HM Revenue & Customs|
|Medicines and Healthcare Products Regulatory Agency|
|Health and Safety Executive|
|Department for Business Innovation and Skills (BIS)|
|Confederation of Business and Industry|
|Federation of Small Businesses|
Nominet says there is likely to be a preliminary meeting early next year, possibly followed by a formal consultation. To contribute to the debate, contact Nominet at firstname.lastname@example.org