Are you a New Zealander with a .com web address? Know the legal risks

Vikram Kumar

Impossible. Nuts. Unbelievable. Those are some of the more polite reactions when I tell people that having a .com domain name for their website is sufficient for them to be subject to US jurisdiction - which allows for nasty stuff like the US government seizing their website or extradition to USA to stand trial over there based on allegations alone.

The bottom line: If you have a .com domain name, or other at-risk domain names like .net, you are subject to US domestic laws and jurisdiction.

This allows the US government to seize your website or even seek your extradition to USA to stand trial, based on allegations of breaking their laws. You’re also at risk from any mistakes and collateral damage.

I was initially hesitant to raise this issue because it might sound self-serving. InternetNZ is the designated manager of the country code .nz.

Two of our subsidiary companies do the actual technical and policy bits for the .nz domain name space. But given the risks and the general lack of awareness about the issues, it’s important to know the facts.

Bodog.com
The easiest way to explain is using a recent example, Bodog.com (have a look at the website to see what a seized website looks like). Bodog is an ‘online entertainment brand’ launched by Canadian Calvin Ayre in 1994. It rapidly evolved into a high-profile online gaming and betting website.

The US government has been targeting overseas online gambling websites for many years, stepping up efforts after a federal law passed in 2006 that prohibits unlawful Internet gambling operations from accepting payments from Americans. Something like 12% of Americans go to an online casino each year so online gambling involves a lot of people and money.

On 27 February 2012 the US Attorney’s Office for the District of Maryland got approval for the seizure of Bodog’s main domain name, Bodog.com. The registry for all .com domain names is run by Verisign, headquartered in California. Even though Bodog.com was registered by a Canadian company via a Canadian registrar DomainClip, Verisign duly complied with the court order and changed the rootzone for .com to redirect the domain to the takedown page.

There are a couple of additional points about this takedown, all highlighting how ends justify the means to the US Government:

  • Bodog’s business activities are completely legal in the country where it is registered, Canada.
  • For years the Department of Justice had maintained that online gambling was illegal. In a spectacular about turn just before Christmas last year, it said that the law (the Wire Act) only applied to sports betting. They finally recognised the obvious- it takes some skill to win at poker and blackjack. So when it took action against Bodog, it wasn’t for its main activity of online gambling but the relatively smaller one of sports betting.
  • In the past, some US registrars haven’t waited for a court order to take down their customers’ websites. The sorry story of JetForm is worth noting. JotForm is in the business of helping customers create online forms that can then be embedded in their websites for easy data collection.
  • Without any warning, at the request of a single employee of the US Secret Service, American registrar GoDaddy took down its website, immediately breaking 2 million forms across the Internet.
  • Later- much later after the owner made a fuss publicly- the US Secret Service admitted it made a mistake and “launched an internal review to make sure all our policies and procedures were followed in the matter.”
  • JotForm is not an isolated incident and the US government has acknowledged more mistakes, such as the seizure of hip-hop site Dajaz1.com under the 2008 Pro IP Act and once took down 84,000 websites by mistake.

US jurisdiction
Clearly, the US Government will try and find ways to claim jurisdiction to target overseas websites that it believes to be illegal under its own domestic laws. In the case of Megaupload, it was servers located in Virginia. For Bodog, it was their .com domain name. All of this even as SOPA-type laws are in the making.

Seizing websites for alleged infringements based on having a .com name, such as Bodog, are by no means a recent phenomena. An official spokesperson for ICE (US Immigration and Customs Enforcement) says they’ve seized 750 domains in this way. Much of the recent step-up has come from Operation In Our Sites launched in June 2010. With a huge amount of money and people dedicated to addressing the ‘problem’ of overseas companies ‘stealing’ or ‘harming’ US interests, the momentum to take high-profile action is only going to increase.

Amongst all of this, democratic foundations such as due process are either ignored or subverted. The ends justify the means.

Not .com alone
The official spokesperson quoted above also said, "They [US federal agencies] have the right to seize any .com, .net and .org domain as the companies with the contracts to administer them are located on American soil, and therefore fall under U.S. laws."

So it’s not only people with .com domain names that need to think about the risks. The same applies to other domain names run by Verisign (.net, .name, .jobs, .cc, and .tv) as well as by other US-based registries, such as the Public Interest Registry that runs the .org. domain.

We estimate that about 34% of domain names registered by New Zealanders, or about 250,000 domain names, are other than .nz. The vast majority of these are .com domain names with a sprinkling of the other at-risk domain names.

TVShack.net
The US government isn’t limited to foreign rich guys like Kim Dotcom and Calvin Ayre. For example, there is a 23 year old computer science student in England, Richard O'Dwyer. He’s been charged by ICE with criminal infringement for setting up TVShack.net. This website was like a search and listing service for links to TV programs and other online entertainment material.

ICE seized the TVShack.net in June 2010 on the basis of jurisdiction over all .net domain names. The replacement TVShack.cc was also similarly shut down.

Richard O'Dwyer has been fighting extradition to the US since May 2011 and, so far, both the courts and more recently the UK government has backed US authorities.

The fact that he was merely providing links to, rather than hosting, copyright infringing material hasn’t stopped the extradition process. This is despite linking sites having been found to be perfectly legal in UK.

Commenting on the case, an official ICE spokesperson said, “The jurisdiction we have over these sites right now really is the use of the domain name registry system in the United States. That's the key... The only necessary ‘nexus to the US’ is a .com or .net web address for which Verisign acts as the official registry operator.”

ICANN up in arms?
One could reasonably expect that ICANN [the global domain name body] would be up in arms over all this messing around with the domain name system. ICANN is, after all, the global body responsible for overseeing the domain name system. Unfortunately, perhaps due to its own difficulties with the US Government, ICANN ducked the whole issue. In a blog post, CEO Rod Beckstorm merely noted that ICANN doesn’t take down domain names, ICE does. No mention of undermining the domain name system, including a risk of splitting the root so that there is no longer a single Internet.

Worse, recently ICANN’s security team went further and issued a step-by-step guide that “offers guidance for anyone who prepares an order that seeks to seize or take down domain names.”

Bottom line
To reiterate: If you have a .com domain name, or other at-risk domain names like .net, you are subject to US domestic laws and jurisdiction.

This allows the US government to seize your website or even seek your extradition to USA to stand trial, based on allegations of breaking their laws. You’re also at risk from any mistakes and collateral damage.

If these risks are acceptable, then there’s nothing to do.

If they aren’t, use domain names (registry and registrar) and servers outside US jurisdiction. That will reduce, but not entirely remove, misguided threats from the US Government to your legitimate activities online.

Finally, a note of caution to the complacent, to the people in the “I’m not doing anything wrong so why should I care” camp. When a government finds a means that works, the range of ends to which it feels justified to apply that means can expand very quickly.

Vikram Kumar is chief executive of InternetNZ, which adminsters the .co.nz domain, and advocates on behalf of internet users.

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49 Comments & Questions

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Interesting and very informative. Which TLDs would you recommend?

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Interesting and informative. Which TLDs would you recommend?

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Thanks for this very informative article, Vikram. As someone who own's a couple of .com addresses, this is something we've been aware of. But it remains that for global business, the .com remains king.

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This applies to all countries that have control over a domain name. It not just a USA issue. Last year I believe the .ly domains had similar issues.

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Great article. Thanks.

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And to those who say "but I haven't done anything wrong": Neither did JotForm. Without due process, innocence doesn't matter.

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I thought .com just meant you operated in multiple countries, maybe there needs to be a root domain server outside of US like Switzerland, NZ or Canada.

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@ Anonymous | Monday, March 19, 2012 - 8:37am

ahhh there is...

.co.nz
.ca
.ch

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no, you clearly don't know what a root nameserver is

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I would prefer .eu as European citizen.

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well, there is .us, too. outside us would be nice...

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Interestingly, US laws apply, whenever and wherever the US likes - and it does not, where US laws are inconvenient (Guantanamo, on US soil but outside the border - at customs,...)

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You can see why there is so much animosity towards the backwards thinking, protectionist USA. This is ridiculous.

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It seems like it just leaves ccTLDs to be used.

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See this interesting article I found through Hacker News on safe domain names. Note it specifically suggests avoiding .nz domain names due to our cooperation in echelon. As stated .ch (Swiss) domain names are probably one of the safest and cheap and easy to register for anyone.
<url>http://gun.io/blog/secure-your-domain-where-is-safe-to-register-a-domain...

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Good read. Thanks.

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What if you have a .com that is redirected to say co.uk where the site is hosted? just curious?

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^ presumably if they are just redirecting the .com to a different host, the .co.uk and hosting will be unaffected, just those visitors who normally use the .com - unless they have served notice to the hosting company also and the registrar managing the .co.uk ccTLD.

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F*** you America. Each and every one of you vile ****. It's your hive mind of greed and stupidity that's causes most of the world's problems.

On the one hand you absolutely love to maintain an air of class and superiority while on the other you are all disgusting international criminals.

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You can still go to bodog just use bodog.bit

using the dot-bit alternate system to ICANN police state naming system.

http://dot-bit.org/Main_Page
http://dot-bit.org/How_To_Browse_Bit_Domains

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You can still go to bodog just use bodog.bit

using the dot-bit alternate system to ICANN police state naming system.

http://dot-bit.org/Main_Page
http://dot-bit.org/How_To_Browse_Bit_Domains

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Thanks for the comments.

It is important to distinguish between generic and country code Top Level Domains (TLDs). This article is about those 22 generic TLDs where the registry operator is US-based- those like .com, .net, and .org. Country code TLDs like .nz are independently and generally locally managed so are not subject to US jurisdiction.

US jurisdiction also applies where the registrar (that’s the organisation actually retailing a specific domain name) is US-based, irrespective of the TLD.

So, anyone who wants to be outside US laws and jurisdiction from a domain name perspective, needs to have a domain name where both the registry and registrar are not based in USA.

Personally, I don’t think the fact that NZ is a part of Echelon weakens .nz in any way.

For those who want to maintain a .com domain name, one suggestion is to have your main domain name as something.co.nz with something.com redirecting to something.co.nz. That way you get the benefit of having a .com domain name and operations can continue smoothly even if something was to happen to the .com domain name.

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Given ICANN is a US organisation (Californian), are all parties contracted with ICANN exposed to the same level of risk?

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How much of it is to do with where a site is hosted? Would bodog.com have been taken down if t was hosted outside the US?

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as far as we know it was hosted outside the US. it's the domain registration/redirect that was inside the US.

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And of course, this is only how not to get your domain seized and thus your business disrupted like nothing. Extradition still applies in a wealth of other circumstances.

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Vikram, if US authorities are prosecuting (perscuting?) Richard O'Dwyer on the basis of a site that merely links, then a redirecting .com domain name would surely be enough to satisfy a pliant US judge of jusridiction over a matter.

As for some country names being safer than others, I would suggest that most countries would (eventually, maybe) buckle under the weight of a concerted US diplomatic assault.

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This is just more justifications to take action against any American organisation for the arrogance and corruption within American. The follow the dollar and if you need something protected just show it effects the dollar and you will get your protection

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What about other companies hosting .com ? (of course VeriSign will try to stop this). If majority of the internet (DNS servers etc) started to allow other companies to actually maintain a .com domain then it is nothing to do with USA?

or create a new generic TLD which is decentralized like mentioned above. Each country can host their own domain.

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Unfortunately, where you have governments - such as the UK - not defending their citizens, but instead choosing to line up to bend over & be screwed by the USA ... well, to put it politely, life is going to get a littlr tricky ...

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I would rather be subject to US law than Russian. Who wouldn't? At least in the US you can make a big public stink about it and not get shot by the cops...

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The yanks do so love to play bully boy don't they?

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In response to some of the comments:

1. Sites hosted in the US, irrespective of domain name, are subject to US laws and jurisdiction. That’s how the US is claiming jurisdiction in the Megaupload case.

2. Bodog.com was taken down on the basis of its .com domain name. It doesn’t matter where the site itself was hosted.

3. As Andreas and Ken have said, a redirecting .com only tackles the website takedown angle. It still allows US to seek extradition.

4. All .com (and .net etc.) domain names are under threat, based on its operator Verisign being in the US. It doesn’t matter who the registrar is or where the site itself is hosted.

5. Typically ICANN requires all contracts to be subject to California jurisdiction. So any organisation contracting with ICANN becomes subject to US laws. Note that country code organisations do not contract with ICANN but all generic TLDs do. Country code organisations (including InternetNZ) are therefore not subject to US laws on a contractual basis.

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Kumar wrote:

4. All .com (and .net etc.) domain names are under threat, based on its operator Verisign being in the US.

Not true. Only those names being used to target audiences in the United States AND that have a business activity potentially in breach of US law are at risk.

For most of us, its business as usual.

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Peter, the US authorities define any website that allows people from USA to visit the website as targeting US audiences. And that's every website.

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Vikram,

Doesn't change the fact that there are only a very small number of sites the US Government would have an interest in.

The notion that every gTLD domain is at risk is in the realm of conspiracy theory.

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Directly, yes. But mistakes and collateral damage would still have the potential to impact any gTLD domain.

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We have a co.nz web presence but use google.com for email. Are there any problems with control and ownership of email material?

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@Peter Mott

The US government probably isn't interested in your domain, but if you are directly competing with a US company a quick word by them with a "friendly" DA and a pliable Judge and your website could be seized for long enough for you to lose the business.

New Zealanders are very naive about corruption. Probably related to our topping the Transparency International league table as the least corrupt country on Earth in 2011. The USA was 24th after Austria, Chile and Qatar.

@Graham E

A quick nslookup of the mx records for internetnz.net.nz shows that InternetNZ also have their mail hosted by Google.

I hope Vikram investigated this before putting internetNZ's email there.

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@Peter Mott

Why take chances? You might be quite innocent but the US could take down your site anyway: see Jotform, Dajaz1, mooo.com takedowns. US law has significant due process issues and NZ directors have a duty of care to minimise or mitigate exposure to business risks.

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http://eminem.in/
Thanks for this post a lot. And it's really a good idea that you've shown the images. It's become more interesting to read.

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Surely the best solution is for the global population outside the USA to cease purchasing from any websites with a .com domain. Then the US can play all by itself and the rest of us can get on with creating and using a global internet.

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These laws are getting out of control. Link: <url>http://www.yellowbot.com/user/1jag60k</url>Quote: <quote>book</quote>

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<a href="http://www.starrausten.com">http://www.starrausten.com</a>
Though this flies in the face of personal freedom of speech on the internet, it means they can pretty much shut down any website they want, and the countries that host the website are powerless to stop it, even if their own laws allow the sites to function. It becomes painfully obvious that the American government holds much sway over the world's politics and by somehow monopolising the .com and .net web addresses.

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NZ Market Snapshot

Forex

Sym Price Change
USD 0.7785 -0.0048 -0.61%
AUD 0.8853 -0.0020 -0.23%
EUR 0.6219 0.0005 0.08%
GBP 0.4869 -0.0028 -0.57%
HKD 6.0413 -0.0333 -0.55%
JPY 87.4210 1.8540 2.17%

Commods

Commodity Price Change Time
Gold Index 1171.1 -27.000 2014-10-31T00:
Oil Brent 85.9 -0.380 2014-10-31T00:
Oil Nymex 80.5 -0.520 2014-10-31T00:
Silver Index 16.1 -0.310 2014-10-31T00:

Indices

Symbol Open High Last %
NZX 50 5370.2 5405.3 5370.2 0.33%
NASDAQ 4639.4 4641.5 4566.1 1.41%
DAX 9283.4 9339.3 9114.8 2.33%
DJI 17208.8 17395.5 17195.4 1.13%
FTSE 6463.6 6553.4 6463.6 1.28%
HKSE 23913.7 24046.4 23702.0 1.25%
NI225 15817.1 16533.9 15658.2 4.83%