Ah, summer. Time to catch up on reading that backlog of documents sitting on the desk corner – including a court ruling about RIPE NCC’s summons against the Dutch government concerning operation Ghostclick.
If you remember, the U.S. FBI secured a U.S. court order in November 2011 compelling all RIRs to take all necessary steps to prevent and prohibit the defendants, who were using servers located at certain IP addresses to control machines used by DNSChanger malware, from
– effectuating any change of control over the current registration accounts for the target IP addresses…
– making any changes to the registration records…unless prior authorization is received from the FBI, or the U.S. Attorney’s Office…
– directly or indirectly attempting to transfer the target IP addresses to any other individuals or entities, except as authorized by the FBI or the USAO…
Based on that order and a request from the FBI, the Dutch police served RIPE NCC a temporary order which was legally grounded in a relatively obscure Dutch law (Article 2 of the Police Act).
Following the Dutch police order, the RIPE NCC froze the associated records and sought legal advice. In turn, it filed a summons against the Dutch government. RIPE NCC felt “that not obeying orders based on Art. 2 would not result in any penalties or liabilities [for RIPE NCC].” However, “the prosecutor did not provide any further basis for the order and reserved his right to order the seizure of the “RIPE NCC administration”, without explaining what the “RIPE NCC administration” would include.” Because of this risk, RIPE NCC sought clarification from the Court about their obligations to follow the order. RIPE NCC asserted there was no corresponding Dutch legal basis for either seizure or freezing of IP addresses registration records.
In response, the Court suggested both parties to work out an agreement on how to handle such cases in the future. With apparently no agreement negotiated, the Court issued its verdict (available only in Dutch) in February 2013 dismissing RIPE-NCC’s summons.
According to IGP’s resident Hoogleraars, Michel van Eeten and Nico van Eijk, Section 4 of the Court’s verdict “seems to argue first and foremost that the assurances and protections that RIPE sought from the court were not justified by a “concrete and realistic threat” (beslaglegging) of prosecution and confiscation by the police.” The Court also determined that RIPE failed to argue why confiscation would be a plausible threat in the future. In essence, the Court argued that the RIPE-NCC lacked standing in the case. Importantly, however, the Court decision did not reflect anything about the institutional position of RIPE.
What are the practical implications for the rights of resource holders? Well, we don’t know. With the dismissal, according to van Eijk, “we will have to wait for a next case to deal with the substance of the matter.”
RIPE NCC’s coverage of their challenge to Ghostclick order