Last December I reported on proposals to give police new powers to take down websites. Nominet – the umbrella body that manages all domain names ending in .uk (ie .co.uk and .org.uk) – has, at police request, been reconsidering the terms under which it blocks websites. Under new proposals, a “request from an identified UK Law Enforcement Agency” may be all that is needed to bring websites down.
The good news is that many of those it has consulted have raised issues about due process, and the over-expansion of police powers. The bad news is that Nominet looks set to brush many of these concerns to one side. According to a report commissioned by Nominet, and released last week, many respondents “raised concerns that Nominet was unlawfully attempting to enforce criminal law, and was relieving the police of the need to prove criminal allegations against individuals”.
However, the reports author goes argues that these concerns are fundamentally irrelevant – since Nominet, by suspending websites upon police request, is not imposing criminal sanctions, but merely enforcing its side of a contract. As the report argued, “Nominet’s power to suspend derives from the registrant’s contractual commitments and not from any public duty to prevent or enforce criminal law”. In other words, by hosting a website on a .uk domain, you have entered into a contract with nominet – and its nominet’s prerogative to kick out your website if it feels the contract has been breached.
For the same reason, the report argued that concerns about the “right to a fair trial” or the principle of “innocent until proven guilty” were not applicable. “Fair trial rights”, it argues, “are not implicated in the decision to suspend”, since the “suspension of a domain name is not a criminal pentaly, but rather a contractual right enforced by Nominet.”
These conclusions are, formally correct, but they are also seriously unsatisfactory. Nominet, after all is not just another business with whom webmasters can choose to enter a relationship. They are the gateway the British internet. Only through nominet, are you able to register and use a .uk domain name. They carry an awesome public responsibility as custodians of free expression online in Britain. Yet as a private business, they can kick you off the web as easily a pub can remove one of its patrons.
What this report demonstrates is that we enjoy the ability to express ourselves online, not as citizens but as clients. We enjoy the basic means to make our voices heard, not because of any particular legal rights, but because a company like Nominet agrees, for the moment, to enter into a contract with us. This would be like Britain’s streets being sold to a private company, with whom any leafletters or demonstrators were expected to enter into a civil contract.
Nominet, in this sense, enjoys a level of private autonomy which is out of step with the hugely important public power that it exercises. It could, of course, be equally problematic for the government to bring the management of domain names completely in house. But there is certainly a pressing case for legislation that explicitly establishes our right to register UK based domain names, and which sets the (preferably stringent) conditions, under which that right may be withdrawn – in other words legislation that would make Nominet a semi-statutory body. As the internet becomes the primary forum for public debate, our ability to express ourselves online must be guaranteed by law.