Today EFF and Public Knowledge are releasing a whitepaper titled Which Internet registries offer the best protection for domain owners? Top-level domains are the letters after the dot, like .com, .uk, .biz, or .mobi. Since 2003, hundreds of new top-level domains have come onto the market, and there has never been more choice for domain name registrants. But apart from choosing a name that sounds right and is easy to remember, a domain name registrant should also consider the policies of the registry that operates the domain, and those of the registrar that sells it to them.
To draw one example of out of our whitepaper, if you're running a website to criticize an established brand and you use that brand as part of your domain name, it may be wise to avoid registering it in a top-level domain that offers special rights and procedures to brand owners, that could result in your domain name being wrongly taken away or could embroil you in dispute settlement proceedings.
This probably means you'll want to think twice about registering in any of the newer global top-level domains (gTLDs), which provide brand owners access to a privately-run Trademark Clearinghouse that gives them veto powers that go far beyond those they would receive under the trademark law of the United States or those of most other countries.
For example, under U.S. trademark law, if a trademark applicant sought to register an ordinary word such as smart, forex, hotel, one, love, cloud, nyc, london, abc, or luxury, they would have to specify the category of goods or services they provide, and protection for the mark might only be extended to its use in a logo, rather than as a plain word. Yet each of the plain words above has been registered in the Trademark Clearinghouse, to prevent them being used in any of the new gTLDs without triggering a warning to prospective registrants about possible infringement.
This applies regardless of whether the planned usage covers the same category of goods or services as the original trademark—indeed there isn't even any way for the registrant to find out what that category was, or even which country accepted the mark for registration, because the contents of the Trademark Clearinghouse database are secret. And since 94% of prospective registrants abandon their attempted registration of a domain after receiving a trademark warning, this has a drastic chilling effect on speech.
EFF is currently participating in an ICANN working group fighting to ensure that brand owners' veto rights aren't extended even further (for example to catch domains that include typos of brand names), and to prevent these outrageous rules being applied to older gTLDs such as .com, .net, and .org. But for now, you can minimize your exposure to trademark bullying by avoiding registering your website in one of the new domains that is subject to these unfair policies. Our whitepaper explains what to look for.
The same considerations apply if you're setting up a website that could fall subject to bullying from copyright holders. In this category, we draw attention to the policies of registries Donuts and Radix that have established private deals with the Motion Picture Association of America (MPAA) appointing it as a "trusted notifier" to initiate a registry-level take down of websites that it claims are engaged in extensive copyright infringement.
Our whitepaper illustrates why remedies for copyright infringement on the Internet should not come from the domain name system, and in particular should not be wielded by commercial actors in an unaccountable process. Organizations such as the MPAA are not known for advancing a balanced approach to copyright enforcement.
To avoid having your website taken down by your domain registry in response to a copyright complaint, our whitepaper sets out a number of options, including registering in a domain whose registry requires a court order before it will take down a domain, or at the very least one that doesn't have a special arrangement with the MPAA or another special interest for the streamlined takedown of domains. For example, it was recently reported that the registry for Costa Rica's .cr domain has been resisting extralegal demands from the U.S. Embassy to delete the domain "ThePirateBay.cr" without a court order.
Copyright and trademark disputes aren't the only grounds on which domain name registries can be asked to suspend or cancel your domain name. They are also frequently asked to do this because the website associated with the domain is hosting content or selling products that are unlawful or against their acceptable use policies. That's why it's important to know what those policies are, how and by whom a breach of those policies is decided, and what national law or laws are taken into consideration. An appendix to our whitepaper breaks this down.
EFF's default position, drawn from the Manila Principles on Intermediary Liability, is that the only way that a registry should be forced to take down a domain because of illegal content on a website is if that determination is made by a court. And if the takedown is for a terms of service violation rather than for a violation of law, the registrant ought to be entitled to due process, including in most cases a right to be heard before any action is taken.
Online pharmacies are an example of a type of website that attracts a lot of pressure upon registries to remove domains without a court order. (LegitScript, a contractor to major U.S. drug companies, regularly boasts about the thousands of websites it has caused to be suspended through its shadowy partnerships with domain registries and registrars.) In cases of the worst of these websites, those that openly sell drugs such as opioids without prescription, their readiness to proactively enforce their acceptable use policies is understandable.
Unfortunately however, just as it is a mistake to partner with the MPAA over copyright enforcement, it is a mistake to partner with Big Pharma in enforcing pharmaceutical licensing regulations. This results in overreaching enforcement that blocks even legitimate, locally-regulated online pharmacies throughout the world, principally based of the laws of just one country (the USA) that prohibits overseas online pharmacies from selling to U.S. citizens. (Access to medicines activists have proposed a more nuanced set of principles on medicine sales online.)
Extending this example, we would never accept Internet registries being pressured to apply Russia's anti-LGBT laws, nor the Turkish or Thai laws against criticism of those countries' leaders, to take domains down globally. And there a whole host of such laws that might apply to a domain that a registrant might innocently register, in full compliance with the laws of their own country. Our whitepaper explains how they can minimize the risk of their domain being taken down globally because it may infringe some other country's national law.
Finally, our whitepaper explains how some registries and registrars do a better job at protecting the privacy of domain name registrants than others. For example, there are country-code domains that don't provide public access to registrants' information at all, and some registrars that offer registrants a free privacy proxy registration service. For those that don't offer such a service for free, such proxy registration services are also commercially available to increase the privacy of your registration in any top-level domain.
No matter whether your priority is to protect your domain against trademark or copyright bullies or overseas speech regulators, or to protect the privacy of your personal information, our whitepaper also outlines an often-overlooked option: to host your website as a Tor hidden service. A Tor hidden service is a website with a special pseudo-domain .onion, which makes it more much resilient to censorship than an ordinary website, and if the website operator chooses, also more anonymous. The downside of this is that it can only be accessed by users using the Tor browser, so it may not be the best choice for a domain that is meant to be accessible to a large audience.
The domain names we use to connect to websites and Internet services are one of the weak links for free speech online: a potential point of control for governments and businesses to regulate others' online speech and activity. Choosing top-level domains carefully is one step you can take to protect your rights.