The spotlight on online pharmacies and their regulation is intensifying.
Over the past few weeks, ICANN staff has spent considerable time talking with a U.S. journalist who is researching an extensive story on this subject.
Last week the registrar (EasyDNS) for an online pharmacy site announced it had taken down the site following queries from the journalist and discussions with both ICANN's Contractual Compliance Department and the U.S. Food and Drug Administration (FDA).
In that context, this seems like an appropriate time to explain what ICANN's role and responsibilities are when it comes to online pharmacies.
Most community members fully understand and appreciate that by design, ICANN has little or no control over the content of websites. In fact, our responsibilities and mission are very limited.
In very general terms, ICANN coordinates the unique identifiers that make up the Internet’s addressing system. We also coordinate policy development reasonably and appropriately related to these technical functions and then enforce contractual compliance once they are implemented.
These largely technical coordination functions were inherent in ICANN's creation, it was not happenstance. It means that website registrants do not have contracts with ICANN, but rather with the domain name registrars, and it is they who hold the contracts with ICANN for accreditation.
As most know, our contract with registrars, the Registrar Accreditation Agreement (RAA), was updated only last year. Some registrars are signatories to that RAA, others are signatories to its predecessor, the RAA of 2009. The rights and responsibilities of the registrars differ under the two agreements.
When the 2013 RAA was being considered, the international law enforcement community wanted a dozen safeguards written into the agreement. All twelve were addressed, including requirements for registrars to verify and validate contact information of registrants and to maintain a point of contact who is responsible for reviewing reports of illegal activity submitted by law enforcement and regulatory agencies. These measures will assist the public and benefit law enforcement as it looks into reported abuses by online pharmacies.
ICANN's ability to investigate complaints about a particular registrar, which might have registered an online pharmacy site, extends only as far as our rights under the contract with that particular registrar. While most in the ICANN community understand that, too many times the general public often does not.
Our contractual compliance team occasionally receives complaints about registrars relating to unlicensed online pharmacies, with the expectation that we have the ability to not only investigate, but also immediately take down any given site. This is not the case.
We are very concerned about unlawful activity of any type on the Internet. However, those concerns do not necessarily mean that we are empowered to address those activities. Our only enforcement power lies within the realm of contractual compliance and extends only to enforcement of the specific language in our agreements.
Many complainants simply do not understand that ICANN is not a governmental or law enforcement agency and has no law enforcement authority. That said, we support law enforcement efforts to fight illegal drug sales and will continue to work within the scope of our authority to assist law enforcement and regulatory agencies, where we are empowered to do so.
It is sometimes easy to forget that ICANN is made up of people, with husbands, wives, daughters, sons, friends and others whom we love dearly. We, just like everyone else, chill at the prospect of our loved ones being hurt or even killed because of dangerous drugs ordered from an online unlicensed pharmacy.
But the simple reality is that ICANN is not a court and is not empowered to resolve disputes when parties disagree over what constitutes illegal activity in multiple countries around the world. We rely on governmental regulatory authorities and courts to police illegal activity. Where law enforcement or a regulatory agency obtains an appropriate court order, ICANN will comply with the court order and require its contracted parties to do the same.
Whenever and however possible we support law enforcement efforts. We occasionally work informally, when appropriate, to encourage our contracted registrars to cooperate with law enforcement and regulatory efforts to combat illegal online pharmacies.
My hope is that this will afford some clarity for both the community and the broader public. If you would like additional information, I would encourage you to review the Contractual Compliance General Questions section of ICANN's website
V.P. Contractual Compliance Services