[CCWG-ACCT] Board comments on the Mission statement

[David Post]

At 07:41 PM 11/20/2015, Bruce Tonkin wrote:
>I have asked the legal staff at ICANN to provide some examples.
>
>Here is one that occurs to me though.   The current new gTLD 
>registry agreements in Specification 
>5 
>(http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-09jan14-en.htm) 
>have a provision that restrict the ability of a registrant to 
>register a country or territory name, or names relating to the 
>International Olympic Committee; International Red Cross and Red 
>Crescent Movement.
>
>These are examples of content in domain names that have some 
>restrictions.   There are no technical or security reasons for such 
>restrictions.   The restrictions have been put in place on the basis 
>of "public policy" advice from the GAC.

So let's take the two examples of restrictions that ICANN already 
imposes on registrants:  (1) the obligation to provide accurate WHOIS 
information, and (2) restrictions on the registrants' ability to use 
certain strings in their domain names.  ICANN can take down a domain 
that fails to comply with these requirements.

Let's assume we agree that these are appropriate exercises of ICANN's 
power - that ICANN can legitimately impose restrictions/obligations 
"like these" on registrants.
At the same time, I assume everyone also agrees that ICANN should NOT 
be permitted to impose restrictions/obligations/regulations on 
registrants that are not "like these" - that it can't use its power 
over the Amazon.com domain name to tell Amazon what kind of products 
and services it can or cannot offer, or how it has to deal with fraud 
complaints, or what privacy protections it needs to include in its 
operations; for things "like that." ICANN should NOT have the power 
to take down the domain (directly or indirectly, i.e. by requiring 
registrars to do the takedown for them).

So the problem is how to reconcile these two positions - to 
articulate why the first set is OK but the second isn't.

In may mind - and if this is too simple-minded, I apologize - the 
answer is:  the former concerns the registrants' activities that 
directly affect the content of the DNS databases themselves, while 
the latter do not.

The UDRP is a good example of how this line works, for me.  ICANN 
does have the power to set up a process to resolve disputes over 
domain names, because the outcomes of those disputes necessarily and 
inherently affect the content of the DNS databases directly.  ICANN 
does not have the power to set up a process to resolve disputes over 
consumer fraud complaints, because the outcomes of those disputes do 
not affect the content of the DNS databases.

David




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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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