“Keep Internet Neighborhoods Safe”
A Proposal for Preventing the Illegal Internet Sales of Controlled Substances to Minors
Drug Strategies; the Center for International Criminal Justice and the Berkman Center for Internet and Society at Harvard Law School; the Weill Medical Center at Cornell University; and the Treatment Research Institute at the University of Pennsylvania, created a new public-private working group in January 2005 to deal with a largely unrecognized problem: the sales of highly addictive dangerous drugs over the Internet to young people. In 2004, 9.3 percent of high school seniors reported using without prescription the highly addictive narcotic painkiller, Vicodin, and 3.5 percent used the even more powerful narcotic Oxycontin. Among tenth graders, 6.2 percent used Vicodin and 3.5 percent used Oxycontin. After alcohol and marijuana, Vicodin is now the most widely abused drug among teenagers.
Most young people (and their parents) don’t realize that these drugs are as addictive as heroin and that they can lead to overdose and even death, particularly when combined with alcohol. Although there are not yet solid data on the magnitude of internet sales of narcotic prescription drugs without prescription, both DEA and treatment centers report that adolescents are increasingly relying on the internet as a source of supply. Extensive research by the Treatment Research Institute has found hundreds of websites that market aggressively so that a seventh-grader researching a paper for health class might enter the term “Vicodin” in any major search engine and see sites that sell Vicodin and Oxycontin without prescription on two-thirds or more of the listings provided. Many of these websites are hosted outside the United States, and drug suppliers promise to (and actually do) replace any drugs intercepted by U.S. Customs or other law enforcement agencies.
In response to this emerging threat, the public-private working group developed new strategies to curtail Internet drug sales without prescriptions to adolescents by drug sellers who are likely to be abroad and unresponsive to threats of increased penalties. Their businesses depend on the unwitting cooperation of major legitimate businesses which can readily withdraw their assistance. Thus, our recommendations focus on such issues as online advertising, payment transfers and delivery services, as well as U.S. and international law, and education and prevention initiatives. To address the global businesses unintentionally supporting this illicit drug trade to youth, the working group sought and obtained the advice of focus on representatives from Internet Service Providers (ISPs), search engines, banking and credit card companies, and government agencies such as the U.S. Department of Justice, U.S. Customs and Border Protection, Royal Canadian Mounted Police, and the United Nations International Narcotics Control Board. While all worked toward identifying effective and practical strategies, not all agreed entirely with all recommendations.
Since January 2005, the working group has involved more than fifty participants and has held six meetings as well as a major conference at Harvard Law School. Based on extensive discussions with participants from both private companies and Federal agencies, the working group developed recommendations designed to curtail illegal Internet drug sales by targeting key points of control in the chain of Internet commerce that begins with a search engine, moves to a web site, and requires a product to be produced and shipped in response to international financing of sales. Critically important actors include credit card companies and financial institutions that unknowingly facilitate these purchases; Internet Service Providers and Search engines that enable potential adolescent buyers to find drug sellers; Federal law enforcement agencies; and private and public agencies dedicated to education and prevention of drug abuse. Central to the success of this endeavor is the timely sharing of detailed information about these illegal drug trafficking websites organizations so that their operations can be shut down. Our recommendations are described below:
Needed New Strategies
A. Identify and monitor websites and other locations on the Internet that offer to sell controlled substances without a valid prescription or that do not display a warning that a valid prescription is required.
1. One or more independent organizations should identify on a continuing, real-time basis websites that offer to sell, or sell, controlled substances without prescription.
We believe one or more independent organizations should regularly search the Internet to identify these websites and other locations that offer to sell controlled substances without a prescription. No governmental action is necessary to accomplish this. We are prepared to establish an independent nonprofit organization, the Indedpendent Monitoring Group (IMG) that would conduct continuous monitoring of the Internet and that would develop a real-time template to identify and distribute regular updates of the names of these websites, including the URL, payment mechanisms advertised (e.g., Visa, Mastercard), and any other purchase and delivery data. Others may or may not wish to do the same.
The IMG, or similar independent organizations, would serve as an efficient conduit of publicly available information to credit card companies, ISPs, common carriers, and key federal agencies so that they could take appropriate actions as described below.
2. Provide the names and Internet addresses of these websites to credit card companies and other payment systems, ISPs, search engines, common carriers, the U.S. Postal Service, the Drug Enforcement Administration, and other relevant federal agencies.
Today, the bulk of illicit drug sales are conducted in a relatively open way. As enforcement increases, new ways will emerge for connecting buyers and sellers of controlled substances without prescription. Already there is evidence that chat rooms provide forums for drug trafficking. Spam is an additional source of offers. As Internet connectivity continues to expand to cellular telephone systems, there is every reason to anticipate that these, too, will become advertising and distribution networks for the illegal sales of controlled substances. Independent monitoring organizations (IMOs) will have to continue to develop new methods of tracking and identifying websites that offer to sell controlled substances without prescription over the Internet. On receiving reliable information that those associated with such a website have come into compliance with U.S. law, these monitoring groups will relay that information to all parties that were previously advised of its illegal practices.
3. Congress should grant immunity to any person, corporation or other entity for mistaken identification of such websites made in good faith or for refusing to do business with any of the organizations mistakenly identified in good faith as offering to sell controlled substances without a prescription.
While the number of occasions will be limited, the willingness to share information about locations offering to sell pharmaceuticals illegally and to act upon that information should not be diminished by threats of law suits. It is therefore essential to provide a safe haven for those acting in good faith. Our proposed legislation provides that protection.
B. Empower Families to Limit Home Access to Websites Illegally Selling Controlled Substances by Requiring ISPs to offer their customers a managed service or device that could be configured to block access to websites offering to sell controlled substances without prescription.
Parents are deeply concerned about the safety of their children where they live and go to school. Parents should be able to limit their children’s access to drugs in the virtual neighborhood of the Internet, whether the parents are technically savvy or not. ISPs should be required to ask each of their customers if they want to have technology put in place that blocks access to websites offering to sell controlled substances without prescription. The technology should be easy for customers to install and use and could be made available directly by the ISPs or through third party providers. The largest of the ISPs already offer parental controls which do, or could be adapted to, serve this valuable function. (This requirement of offering a filtering service might be waived for ISPs that do not serve minors or households with children, such as universities and corporate enterprises, ISPs to the extent that they provide wireless access points for temporary connections, and ISPs with only small numbers of clients.)
Earlier efforts by federal and state governments to mandate filtering systems in the area of pornography have failed because of spillovers to legitimate areas. These schemes have most often faltered by permitting or requiring ISPs to use Internet Protocol (“IP”) based filtering. Where a filtering system is based on an ISP blocking designated IP addresses, the filter can block numerous lawful sites that share the same IP address.
Our recommendation takes a different, more effective approach by empowering parents and other customers to decide whether to implement filtering as part of their ISP service. It would give the ISP the option of providing a software or hardware filtering system implemented on the ISP end or on the customer’s computer. Even when a filtering system is URL or content based, if the ISP can effect the filtering only by applying it to all of its customers and not just the ones requesting it, the spillover effect could harm valued First Amendment interests of otherwise lawful Internet users. If the ISP’s network configuration does not permit customer specific, URL-based filtering, or if it is simply more economical for the ISP, the ISP could provide the filtering system through software on the customer’s computer, just as many ISPs presently implement anti-virus and anti-spam filters and Microsoft will implement parental controls that will enable customers to request filtering of drug sites as part of the forthcoming VISTA operating system. We do not think legislation is necessary at this time to effect our recommendation in this area, because we hope and expect that ISPs will implement this recommendation voluntarily.
Government agencies funding or conducting research in the area of sales of prescription drugs without prescription, such as the Drug Enforcement Administration and National Institute on Drug Abuse, should be expected to share, with ISPs and third party providers building and provisioning filtering systems, the results of research into characteristic traits of illegal pharmaceutical sites, to help test the efficacy of, and improve, current computer algorithms for detecting and filtering them. Information about specific websites offering to sell controlled substances without prescription would be provided to ISPs and filtering software manufacturers by the Independent Monitoring Group (IMG), or similar organizations, and updated constantly. ISPs building their own lists of illegal and legal sites or purchasing this service from third party providers would be expected to ensure that sites identified by the IMG were contained on their lists.
If ISPs were neither building independent lists nor purchasing them from third party providers, they would be expected to implement filtering systems based on those sites identified by the IMG. At the customer’s request, the customer’s Internet traffic would be filtered, and the filter updated in a manner similar to Microsoft’s Windows Update, Symantec’s Live Update, and other companies’ automated update systems. If after notifying ISPs of illegal pharmaceutical sites those sites remained accessible to customers requesting filtering, the IMG would notify relevant parties. In the future, as technologies converge, similar requirements should apply to cell phone service providers and all other distributors of electronic communications.
ISPs alternatively may want to make a simpler and broader option available to their customers. There is no reason why parents who do not want to be able to purchase controlled substances over the Internet need to have access to websites selling them in their home. An ISP could, directly or through a third party provider such as LookSmart’s Net Nanny, offer its customers a system that blocks access to any website selling prescription drugs over the Internet, whether lawfully or unlawfully.
C. Prevent Misuse of Financial Institutions to Finance Illegal Sales of Controlled Substances
The financial sector can and should play a pivotal role in combating the trafficking of illicit drugs on the Internet. A number of companies with whom we have discussed these issues deserve credit for already having begun to address this problem. But all financial institutions, not just some, have extensive legal obligations to ensure the integrity of the financial system and these obligations should be clear. Responsibilities for monitoring the international financial system for abuse and preventing such abuse should include explicit requirements to monitor illicit drug sales. The obligations to “know your customer” and conduct due diligence have been reinforced by both anti-money laundering legislation and the USA Patriot Act. The combination provides a powerful framework that is fully applicable to sales of controlled substances without prescription.
With the current legal framework in mind, we recommend that the Department of the Treasury assure itself that the financial sector, including credit card companies, banks and emerging Internet funding organizations, such as PayPal, adopt the following policies:
1. All financial institutions will incorporate into their Terms of Use and other analogous contractual agreements explicit prohibitions on the use of their financial networks for any illicit purchase/sale of drugs.
Most major financial institutions already include such bans in their standard contractual language. This practice should be made mandatory for the industry. Financial institutions’ policies also should include a contractual due diligence requirement for any organization, including merchant banks, third party acquirers and other payment processors, to monitor their networks for any use of the financial network for illicit drug sales.
2. All financial institutions will monitor their networks for illicit drug sales and respond to credible outside information regarding such activity.
Financial institutions will ensure that the broad efforts they currently undertake to monitor networks for fraud and other abuse, explicitly include the threat of illicit drug sales. Financial institutions will identify clearly the responsibility within the organization for meeting these obligations and will report semi-annually on the identification of threats and actions taken in response to information provided.
Upon the receipt of credible information related to possible abuse, financial institutions will test suspect accounts and identify those accounts that are being abused. In addition, the financial institutions will ensure that any merchant bank in the system is notified of such accounts and takes appropriate measures.
3. When financial institutions, such as credit card companies, identify an account that is being abused, they will share such information within their network and, consistent with legal obligations, law enforcement. The merchant banks and other related actors in the network should have an obligation to cut off credit to the offending account.
Financial networks share large amounts of information to ensure the integrity of the financial system. All actors within the network should be required to share information about offending accounts to ensure that businesses that are barred from credit cannot otherwise obtain it within the network. If merchant accounts and other third party actors do not respect such ban, then they, too, should be blocked from accessing the credit network.
Consistent with legal obligations relating to customer privacy, all financial institutions will share information with US law enforcement, regulators and other organizations used to facilitate information sharing with respect to all those participating in, or assisting in the financing of, the illicit purchase/sale of drugs.
D. Launch nationwide education and prevention campaigns
1. Enlist key government agencies, such as the National Institute on Drug Abuse (NIDA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) as well as private organizations, such as the Partnership for a Drug Free America (PDFA), to educate adults and youth on the dangers of using narcotic pain-killers without prescription, including accidental injuries, dependence, overdose, and death, particularly when used in combination with alcohol.
The most recent national surveys report that adolescent non-medical use of highly addictive prescription drugs is increasing. These drugs include opiate painkillers (narcotics) such as Vicodin and Oxycontin, sedatives such as Ambien, and tranquilizers such as Valium and Xanax. These increases are occurring in the face of the otherwise encouraging news that among youth ages 12 to 17, past month illicit drug use overall has declined 19% since 2001. After alcohol and marijuana, Vicodin (without prescription) is now the most widely used drug among high school seniors.
Adults and youth may not view controlled substances, like Vicodin, which can be obtained without prescription over the Internet, as equally “dangerous” as narcotics which can be bought from street dealers or classmates, especially since the drugs are widely prescribed by doctors for legitimate medical purposes. The ease with which these drugs are obtained over the Internet, their packaging, and their appearance of legitimacy can contribute to the belief that such drugs are relatively safe when in fact these drugs can be lethal when taken in high doses or in combination with alcohol. A recent national survey by the Partnership for a Drug Free America (2005) reported that almost half of teens said they believe that prescription drugs, even if not prescribed by a doctor, are much safer than street drugs and almost a third said that prescription pain killers, even if not prescribed, are not addictive. Both beliefs are false and should be corrected.
2. Encourage Internet Service Providers (ISPs) to educate their customers about new technological safeguards such as firewalls and parental control software that can prevent the use of computers for the illegal purchase of addictive controlled substances.
ISPs can make technological safeguards widely available to their customers who want to block websites that offer to sell controlled substances without prescription. The ISPs should regularly notify all customers of this opportunity to create a safe Internet neighborhood for their families as well as continue to update the technology as needed.
3. Enlist all major Internet search engines to display prominently a warning whenever Internet users request a search for any controlled substance that it is illegal to purchase controlled substances without prescription over the Internet in the United States. Internet search engines should also work closely with federal agencies to develop effective links to drug education websites describing the dangers of non-medical use of powerful prescription drugs, such as Vicodin or Oxycontin.
To buy controlled substances over the Internet, adolescents must find sellers. Many young people use the internet to find everything from music downloads to movie tickets. Using search engines such as Google and Yahoo!, easily constructed searches readily lead to hundreds of websites offering to sell controlled substances without prescription. Internet search engines can discourage illegal purchases by placing forceful warnings at the top of the results of any search for controlled substances without prescription. They can also help educate Internet users about the dangers of non-prescription use of controlled substances by providing links to drug education websites, such as www.drugfree.org (Partnership for a Drug Free America) when these search requests are made.
Currently, some search engines offer federal law enforcement agencies budgets for free advertising links on their sites; however, the inconspicuousness of the links and the disinterest and resistance of adolescents seeking to buy drugs greatly limit their effectiveness. Federal agencies and Internet search engines must work together to ensure that free advertising links become an effective deterrent tool.
4. Enlist web publishers that accept advertising to implement screening or third party review processes to avoid accepting advertising from sites that offer to sell controlled substances without a valid prescription.
Many large Internet search companies already employ screening or review processes to prevent advertisements for sites offering the sale of controlled substances without a prescription. Other third party advertisers, Internet portals, advertising networks, and marketing affiliate companies should be encouraged to implement similar screening or third party review processes.
E. Strengthen Law Enforcement and International Cooperation
1. The Department of State and DEA should each create a dedicated internal structure of an adequate size to carry out international law enforcement efforts to curtail illegal sales of controlled substances without a valid prescription over the Internet. The Department of State should be expected to act on information received from the Independent Monitoring Group (IMG) and credit card companies about Internet drug traffickers, and to use that information to work with law enforcement counterparts abroad to bring about foreign prosecution and asset forfeiture. In significant cases, DEA should seek extradition with the goals of prosecuting these traffickers in the United States and seizing their assets wherever they may be.
The Department of State and DEA should each establish an office to: receive information from the credit card companies, ISPs, IMO’s, pharmaceutical companies and others; analyze information about illegal websites received from the IMG or private parties; and then initiate enforcement efforts. Each should also be organized to pass on to cooperating private parties information about illicit drug vendors to the extent that this is consistent with law enforcement needs. Each office should maintain public records of the reports it receives, the occasions on which it has requested a delay of any private action, and the actions it and its foreign counterparts have taken.
2. Build international cooperation and commitment to fighting this problem on a global scale.
The Department of State should give high priority to curtailing illicit Internet sales of controlled substances both in its bilateral relations with other governments and in its policy positions in international organizations. In addition, the Department of State and the U.S. Delegation to the United Nations Commission on Narcotic Drugs should lead an effort to strengthen enforcement of the Single Convention on Narcotic Drugs, particularly Articles 30, 31, and 36 (which together require signatories to make criminal the distribution of narcotic drugs without prescription). The Department of Justice and DEA should coordinate with the Department of State to pursue U.S. enforcement efforts under the Single Convention. These departments and agencies should urge the International Narcotics Control Board (INCB) to report annually to the United Nations General Assembly on the scope and seriousness of Internet trafficking in controlled substances.
3. The DEA should work with U.S. and multi-national pharmaceutical companies to identify the source of controlled substances offered for sale without prescription over the Internet.
Whenever DEA obtains samples of illegally sold controlled substances through online purchases by its own agents or from U.S. Customs, the U.S. Postal Service, or private carriers who have intercepted them, it should send these samples to pharmaceutical companies to enable them to determine the source of the drug (e.g., whether it is a legitimate drug that was illegitimately diverted or a patent-infringing copy of the company’s drug). The DEA should also obtain information from covert online purchases and, as soon as consistent with law enforcement, furnish that information to credit card companies so that they can identify and shut down merchant accounts being used for illegitimate purposes.
F. Enhance Border Interdiction
1. U.S. Customs and Border Protection (“CBP” or “Customs”) should seek and use information from private carrier, pharmaceutical, and credit card companies and from the Independent Monitoring Group (IMG) to monitor and intercept illegal shipments into the United States of controlled substances sold without prescription.
Millions of packages coming from abroad are processed daily through Customs international mail facilities. Packages containing illegal controlled substances are likely to be designed to be generally indistinguishable from the rest. In addition to conducting random searches of incoming packages in an effort to intercept illegal drugs, Customs officials should use information provided by the IMG and credit card companies regarding the names and addresses used by individuals and companies who offer to sell controlled substances over the Internet without a legitimate prescription. Based on this information, Customs officials should make every effort to target and interdict these illicit shipments.
Upon interdiction of illegal controlled substance shipments, Customs should advise the intended recipient of the illegality of the transaction and, for interdictions considered to be in commercial quantities, notify the Drug Enforcement Agency for possible prosecution of the original shipper. Customs should analyze and process data taken from intercepted shipments of controlled substances (such as point of origin) to improve the effectiveness of interception of future shipments.
2. When private carrier companies have reason to believe that certain packages may contain illegally sold controlled substances, they should immediately provide to Customs officials as much identifying information as possible, including shipping account and credit card numbers.
Since private common carriers often receive or pick up packages directly from shippers, they may be able to identify transactions that appear suspicious. Under earlier recommendations, carriers will also receive information on suspicious transactions from the IMG (or another non-profit serving the same function) and from credit card companies. If, on these bases, they suspect that they are transporting packages that contain illegal controlled substances, carriers should provide to Customs officials all identifying information, including shipping account and any available credit card numbers. In particular, the credit card numbers would be useful to Immigration and Customs Enforcement (ICE) and DEA in criminal investigations of commercial shipments. The Interagency Pharmaceutical Task Force is a vehicle to share such relevant data about suspicious shipments among CBP, ICE, and DEA. Private carrier companies should be encouraged to comply with these procedures through incentive programs; for example, Customs could use voluntary compliance in this program as a factor in determining whether a specific carrier receives enhanced customs privileges.
Keep Internet Neighborhoods Safe is a collaborative effort of the Center for International Criminal Justice at Harvard Law School, Drug Strategies, Weill Medical Center of Cornell University and the Treatment Research Institute at the University of Pennsylvania. For additional information please contact Philip Heymann, James Barr Ames Professor of Law, Harvard Law School heymann@law.harvard.edu.
November 13, 2006