<html><body style="font-family: 'Helvetica Neue',Helvetica,Arial,sans-serif; font-size: 12px;"><br />Hi All,<div>In preparation for our meeting tomorrow on Voluntary Public Interest Commitments, I'd like to recirculate my principles/guardarails posting, updated for the addition of the Human Rights Core Value in our Bylaws, and note there was nothing new in anything I said. We've been discussing private PICs for years. We also heard recently from our Board liaisons, with Becky Burr sharing her worries about potential private PICs, and ICANN being forced to act outside its scope and mission. We heard from Avri and Becky that ICANN can't delegate to a third party that which it cannot enforce itself. </div><div><br /></div><div>Below is my short paper on principles for PICs ("guardrails") and beneath it, the CircleID post of Mitch Stoltz, Senior Staff Attorney, Electronic Frontier Foundation, <i>ICANN Should Keep Content Regulation and Other Arbitrary Rules Out of Registry Contracts. </i></div><div><br /></div><div>Overall, we create a base registry agreement for a reason - all contracts between ICANN and new gTLD registries should be the same. We need room for agreements with the GAC, as we have all decided, but not for the "kitchen sink" of any terms or any reason. That would effectively nullify our contracts and even our policy work in this PDP. Overall, I don't think we are far away from agreement - and look forward to the discussion tomorrow! </div><div><br /></div><div>Best, Kathy</div><div>-----------------------------------------------------------------------------------------------------------------------------------------------------------</div><div><p class="Default"></p><p class="Default"><span style="font-size:11pt;"><b>Four Guardrails
for Voluntary Public Interest Commitments (VPICs) and</b> </span><b><span style="font-size:11pt;">Registry
Voluntary Commitments (RVCs) in the New gTLDs </span></b></p>
<p class="Default"><span style="font-size:11pt;">ICANN’s
Bylaws wisely bar the organization from regulating content. Upfront, section
1.1 declares: “ICANN shall not regulate (i.e., impose rules and restrictions
on) services that use the Internet's unique identifiers or the content that
such services carry or provide.” ICANN regulates (or quasi-regulates) layers of
the Internet Infrastructure before the content layer; we leave the content to
the world regulators, content providers and platforms.</span></p>
<p class="Default"><span style="font-size:11pt;">But
in 2013 and 2014, ICANN’s CEO made a good choice and a bad choice. Then-CEO
Fadi Chehadé wanted a place in the registry agreement (the contract between
ICANN and a registry) to put promises made by applicants who want to operate
new registries to the Government Advisory Committee (GAC) – that was a good
choice. But Fadi chose to create a dumping ground for anything registries
wanted to commit to for any reason–a bad choice. The name chosen was just as
bad: Private or Voluntary Public Interest Commitments.</span></p>
<p class="Default"><span style="font-size:11pt;">These
“Private PICs” gave registries unprecedented powers, absent any review or veto
by the Generic Names Supporting Organization (GNSO, the entity responsible at
ICANN for gTLD policy). Most registries restrained themselves – they know ICANN
has GNSO-created policies for the registration, transfer, dispute and
revocation of domain names. But some registries gave themselves unlimited power
to abuse and censor their registrants. Without due process or even reason or
rationale, some registries in their “private PICs” gave themselves the power to
suspend domain names with no notice and no clear reason (thereby potentially
removing hundreds of webpages of speech and commerce, and thousands of email
addresses in active use).</span></p>
<p class="Default"><b><i><span style="font-size:11pt;">Because these PICs appeared in ICANN contracts, ICANN became the
enforcer of these self-selected, arbitrary policies through the PIC Dispute
Resolution Process (PICDRP), which was similarly created without a GNSO policy
development process </span></i></b><span style="font-size:11pt;">as opposed to the UDRP, URS, and </span><span style="font-size:11pt;">PDDRP
mechanisms (created and under review within ICANN’s GNSO framework).
Fortunately, ICANN has engaged little with the PICDRP and private PICs to date.
</span><i style="font-size:11pt;">Who wants to run a court with no rules and no reason? </i><span style="font-size:11pt;">But this dangerous
arrangement remains, and threatens to embroil ICANN in questions of speech
regulation.</span></p>
<p class="Default"><b><span style="font-size:11pt;">A
Fresh Look by the ICANN Board</span></b><span style="font-size:11pt;"> </span></p>
<p class="Default"><span style="font-size:11pt;">Fortunately,
the ICANN Board raised the issue last month and wrote an open letter to the
ICANN working group known as “Subsequent Procedures Policy Development Process
Working Group” expressing concern about private PICs that might entangle ICANN
in issues that were “outside of ICANN’s technical mission.” It bears repeating
that the one thing explicitly called out in ICANN’s Bylaws as being <i>outside
of ICANN’s mission </i>is to “regulate” Internet services “or the content that
such services carry or provide.” The Board asked the working group for
“guidance on how to utilize PICs and RVCs without the need for ICANN to assess
and pass judgment on content.” The questions are good and we think the answers
are easy and straightforward: let’s agree to curb abuse and recommit to ICANN’s
narrow mission of managing the DNS by placing limits on so-called VPICs:</span></p>
<p class="Default"><b><span style="font-size:11pt;">A
Solution: Guardrails for Voluntary PICs/RVCs <span> </span>by ICANN and New gTLD Registries</span></b><span style="font-size:11pt;"></span></p><p></p>
<p class="Default"><b><span style="font-size:11pt;">1.
PICs/RVCs can only address issues with domain names themselves, including
eligibility criteria consistent with point 2 below - not the contents of
websites or apps that use domain names </span></b><span style="font-size:11pt;"></span></p><p></p>
<p class="Default"><span style="font-size:11pt;">Basically,
no Voluntary PICs about content regulation. Registries would continue to be
free to use their own judgment about when to suspend the domain name of a
website that violates local law or the registry owners’ conscience, but we
encourage registries, and all providers of Internet infrastructure, to stay out
of the content-regulation business as much as possible.</span></p>
<p class="Default"><span style="font-size:11pt;">This
saves ICANN from the horrible position of enforcing rules completely outside
its mission, mandate and conscience, e.g., a possible future .WHITESUPREMACY
gTLD in which “Voluntary PICs” require <i>ICANN </i>to suspend all registrants
who use their domain names to post content about equity, systemic bias, and
Black Lives Matter rallies. </span></p><p></p>
<p class="Default"><span style="font-size:11pt;">Not
through ICANN, and not through a third party administered by ICANN, should such
clearly content-oriented (and offensive) rules be enforced. Happily, we all
agreed in 2016, that the Internet’s domain name system is not the place to
police speech. </span><i style="font-size:11pt;">ICANN, the organization that regulates that system, is
legally bound not to act as the Internet’s speech police. </i><span style="font-size:11pt;">Let’s step away
from this landmine quickly.</span></p>
<p class="Default"><b><span style="font-size:11pt;">2.
Commitments need to be consistent with the human rights core value established
in the ICANN Bylaws</span></b></p>
<p class="Default"><span style="font-size:11pt;">This one is exceptional straightforward: we agreed
to the ICANN Core Value of “respecting recognized human right as required by
applicable law” in the 2016 ICANN Bylaws.</span><span style="font-size:11pt;">
</span><span style="font-size:11pt;">How could we not include or reference as a guidepost or principle as to
what is allowed or not allowed in the contracts ICANN is signing?</span></p>
<p class="Default"><b><span style="font-size:11pt;">ICANN
Bylaws, Section 1.2(b) CORE VALUES</span></b></p>
<p class="Default"><span style="font-size:11pt;">“In performing its Mission, the following ‘Core
Values’ should also guide the decisions and actions of ICANN:</span></p><p></p>
<p class="Default"><span style="font-size:11pt;">*** </span></p><p></p>
<p class="Default"><span style="font-size:11pt;">(viii) Subject to the limitations set forth in
Section 27.2, within the scope of its Mission and other Core Values, respecting
internationally recognized human rights as required by applicable law. This
Core Value does not create, and shall not be interpreted to create, any
obligation on ICANN outside its Mission, or beyond obligations found in
applicable law. This Core Value does not obligate ICANN to enforce its human
rights obligations, or the human rights obligations of other parties, against
other parties.”</span></p><p></p>
<p class="Default"><b><span style="font-size:11pt;">3.
PICs/RVCs should not give registries unbounded discretion to suspend domain
names</span></b></p>
<p class="Default"><span style="font-size:11pt;">Simply
put, let’s have no absolute monarch with uncontrolled power over the life and
death of a domain name. Believe it or not, one registry applicant gave itself
the power “at its sole discretion and at any time and without limitation, to
deny, suspend, cancel, or transfer any registration or transaction, or place
any domain name(s) on registry lock, hold, or similar status” for vague and
undefined reasons. This currently affects hundreds of gTLDs and potentially
millions of registrations! </span><i style="font-size:11pt;">But we have spent two decades at ICANN coming up
with fair and balanced rules for the creation, revocation and transfer of
domain names, along with the handling of domain name disputes. </i><span style="font-size:11pt;">The idea
that someone, for example, within the term of a domain name might offer the
registry more money, and thus the registry orders the registrar to unilaterally
terminate the domain name contract, is unacceptable.</span></p><p class="Default"><i>How can ICANN fathom enforcing Voluntary PICs with no limits? </i>It is an
absurd thought: ICANN can’t – not through its own mechanisms or those of third
parties – so these provisions simply should not exist in future voluntary PICs.
Absolute monarchs went by the wayside in the last century.</p>
<p class="Default"><b><span style="font-size:11pt;">4.
And PICs/RVCs should not be used to create new policies that didn’t come
through ICANN processes</span></b></p>
<p class="Default"><span style="font-size:11pt;">The
GNSO makes the policies for gTLDs with the advice of Advisory Committees
(including GAC and ALAC) and the approval of the Board. If registries want to
go above and beyond by creating protections for the environment, for political
speech, for intellectual property, for white supremacists, let them do it in
their own terms of use, and subject to other forms of review and opposition,
and to market forces, but not enforced by ICANN or delegated by ICANN to a
third party for enforcement. </span></p><p></p>
<p class="Default"><span style="font-size:11pt;">*** </span></p><p></p>
<p class="Default"><span style="font-size:11pt;">Overall,
voluntary PICs were designed to allow reasonable accommodation of Government
Advisory Committee Early Warnings and Advice – a place to confirm that a
.HOSPITAL registry may review the authorizations, charters and licenses of this
applicant of a “highly-sensitive” string and have the right, on complaint, to
consult with the registrant and appropriate supervisory authorities about its
authenticity. A .hospital registration should be a hospital registration. </span></p><p></p>
<p class="Default"><span style="font-size:11pt;">We don’t
want to see ICANN become another content moderation battleground. They will
also help registry operators to resist calls for censorship by certain
governments and indeed from anyone who wants to arbitrarily impose rules on the
DNS outside our ICANN processes.</span><span style="font-size:11pt;"> </span></p><p class="Default"><span style="font-size:11pt;">--------------
CircleID Posting by Mitch Stoltz, November 23, 2020 -------------------------------------------</span></p><p></p><p class="Default"><span style="font-size:11pt;">ICANN
Should Keep Content Regulation and Other Arbitrary Rules Out of Registry
Contracts</span></p>
<p class="Default"><span style="font-size:11pt;">By
Mitch Stoltz Senior Staff Attorney at the Electronic Frontier Foundation</span></p><p></p>
<p class="Default"><span style="font-size:11pt;">The
domain name system is not the place to police speech. ICANN is legally bound
not to act as the Internet's speech police, but its legal commitments are
riddled with exceptions, and aspiring censors have already used those
exceptions in harmful ways. This was one factor that made the failed takeover
of the .ORG registry such a dangerous situation. But now, ICANN has an
opportunity to curb this abuse and recommit to its narrow mission of keeping
the DNS running, by placing firm limits on so-called "voluntary public
interest commitments" (PICs, recently renamed Registry Voluntary Commitments,
or RVCs).</span></p>
<p class="Default"><span style="font-size:11pt;">For
many years, ICANN and the domain name registries it oversees have given mixed
messages about their commitments to free speech and to staying within their
mission. ICANN's bylaws declare that "ICANN shall not regulate (i.e.,
impose rules and restrictions on) services that use the Internet's unique
identifiers or the content that such services carry or provide." ICANN's
mission, according to its bylaws, "is to ensure the stable and secure
operation of the Internet's unique identifier systems." And ICANN, by its
own commitment, "shall not act outside its Mission."</span></p>
<p class="Default"><span style="font-size:11pt;">But…
there's always a but. The bylaws go on to say that ICANN's agreements with
registries and registrars automatically fall within ICANN's legal authority,
and are immune from challenge, if they were in place in 2016, or if they
"do not vary materially" from the 2016 versions.</span></p>
<p class="Default"><span style="font-size:11pt;">Therein
lies the mischief. Since 2013, registries have been allowed to make any
commitments they like and write them into their contracts with ICANN. Once
they're written into the contract, they become enforceable by ICANN. These
"voluntary public interest commitments" have included many promises
made to powerful business interests that work against the rights of domain name
users. For example, one registry operator puts the interests of major brands
over those of its actual customers by allowing trademark holders to stop anyone
else from registering domains that contain common words they claim as brands.</span></p>
<p class="Default"><span style="font-size:11pt;">Further,
at least one registry has granted itself "sole discretion and at any time
and without limitation, to deny, suspend, cancel, or transfer any registration
or transaction, or place any domain name(s) on registry lock, hold, or similar
status" for vague and undefined reasons, without notice to the registrant
and without any opportunity to respond. This rule applies across potentially
millions of domain names. How can anyone feel secure that the domain name they
use for their website or app won't suddenly be shut down? With such arbitrary
policies in place, why would anyone trust the domain name system with their
valued speech, expression, education, research, and commerce?</span></p>
<p class="Default"><span style="font-size:11pt;">Voluntary
PICs even played a role in the failed takeover of the .ORG registry earlier
this year by the private equity firm Ethos Capital, which is run by former
ICANN insiders. When EFF and thousands of other organizations sounded the alarm
over private investors' bid for control over the speech of nonprofit
organizations, Ethos Capital proposed to write PICs that, according to them,
would prevent censorship. Of course, because the clauses Ethos proposed to add
to its contract were written by the firm alone, without any meaningful
community input, they had more holes than Swiss cheese. If the sale had
succeeded, ICANN would have been bound to enforce Ethos's weak </span><span style="font-size:11pt;">and
self-serving version of anti-censorship.</span></p>
<p class="Default"><span style="font-size:11pt;">A
Fresh Look by the ICANN Board?</span></p>
<p class="Default"><span style="font-size:11pt;">The
issue of PICs is now up for review by an ICANN working group known as
"Subsequent Procedures." Last month, the ICANN Board wrote an open
letter to that group expressing concern about PICs that might entangle ICANN in
issues that fall "outside of ICANN's technical mission." It bears
repeating that the one thing explicitly called out in ICANN's bylaws as being
outside of ICANN's mission is to "regulate" Internet services
"or the content that such services carry or provide." The Board asked
the working group [pdf] for "guidance on how to utilize PICs and RVCs
without the need for ICANN to assess and pass judgment on content."</span></p>
<p class="Default"><span style="font-size:11pt;"><b>A
Solution: Three Guardrails on PICs/RVCs<span> </span></b></span></p><p class="Default"><span style="font-size:11pt;">[Note from Kathy, 12/16, in consultation with Jorge Concio, we added the
4<sup>th</sup> guardrail/principle: “Commitments need to be consistent with the
human rights core value established in the ICANN Bylaws” – previous posted to
this WG]</span></p><p></p>
<p class="Default"><span style="font-size:11pt;">There's
a simple, three-part solution that the Subsequent Procedures working group can
propose:</span></p>
<p class="Default"><span style="font-size:11pt;">-<span> </span>PICs/RVCs can only address issues with
domain names themselves — not the contents of websites or apps that use domain
names;</span></p><p></p>
<p class="Default"><span style="font-size:11pt;"><span> </span>- <span> </span>PICs/RVCs should not give registries
unbounded discretion to suspend domain names;</span></p><p></p>
<p class="Default"><span style="font-size:11pt;"><span> </span>- <span> </span>and
PICs/RVCs should not be used to create new domain name policies that didn't
come through ICANN processes.</span></p>
<p class="Default"><span style="font-size:11pt;">In
short, while registries can run their businesses as they see fit, ICANN's
contracts and enforcement systems should have no role in content regulation, or
any other rules and policies beyond the ones the ICANN Community has made
together.</span></p>
<p class="Default"><span style="font-size:11pt;">Guardrails
on the PIC/RVC process will keep ICANN true to its promise not to regulate
Internet services and content. It will help avoid another situation like the
failed .ORG takeover, by sending a message that censorship-for-profit is
against ICANN's principles. It will also help registry operators to resist
calls for censorship by governments (for example, calls to suppress truthful
information about the importation of prescription medicines). This will preserve
Internet users' trust in the domain name system.</span></p><p></p><br /><p></p></div></body></html>