[CPWG] Fwd: [IP] ICANN Can Stand Against Censorship (And Avoid Another .ORG Debacle) by Keeping Content Regulation and Other Dangerous Policies Out of Its Registry Contracts | Electronic Frontier Foundation

Wed Nov 25 17:20:26 UTC 2020

FYI - on the PICs and RVCs.

-------- Forwarded Message --------
Subject: 	[IP] ICANN Can Stand Against Censorship (And Avoid Another 
.ORG Debacle) by Keeping Content Regulation and Other Dangerous Policies 
Out of Its Registry Contracts | Electronic Frontier Foundation
Date: 	Tue, 24 Nov 2020 09:11:17 +0900
From: 	Dave Farber <farber at gmail.com>
Reply-To: 	ip <ip at ip.topicbox.com>
To: 	Ip Ip <ip at v2.listbox.com>

*I am a member of the Board of Trustees of EFF   djf*
>
> https://www.eff.org/deeplinks/2020/11/icann-can-stand-against-censorship-and-avoid-another-org-debacle-keeping-content 
> <https://www.eff.org/deeplinks/2020/11/icann-can-stand-against-censorship-and-avoid-another-org-debacle-keeping-content>
>
>
>   ICANN Can Stand Against Censorship (And Avoid Another .ORG Debacle)
>   by Keeping Content Regulation and Other Dangerous Policies Out of
>   Its Registry Contracts
>
> Mitch Stoltz </about/staff/mitch-stoltz>
> November 22, 2020
>
> The Internet’s domain name system is not the place to police speech. 
> ICANN, the organization that regulates that system, 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 
> <https://www.eff.org/deeplinks/2020/04/victory-icann-rejects-org-sale-private-equity-firm-ethos-capital> 
> 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).
>
> 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 
> <https://www.icann.org/resources/pages/governance/bylaws-en/#article1>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.”
>
> But…there’s always a but. The bylaws go on to say that ICANN’s 
> agreements with registries (the managing entities of each top-level 
> domain like .com, .org, and .horse) and registrars (the companies you 
> pay to register a domain name for your website) 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.
>
> 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.
>
> 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?
>
> 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 and 
> self-serving version of anti-censorship.
>
>
>       *A Fresh Look by the ICANN Board?*
>
> 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 
> <https://www.icann.org/en/system/files/correspondence/botterman-to-langdon-orr-neuman-30sep20-en.pdf> 
> [pdf] for “guidance on how to utilize PICs and RVCs without the need 
> for ICANN to assess and pass judgment on content.”
>
>
>       *A Solution: No Contractual Terms About Content Regulation*
>
> EFF supports this request, and so do many other organizations and 
> stakeholders who don’t want to see ICANN become another content 
> moderation battleground. There’s a simple, three-part solution that 
> the Subsequent Procedures working group can propose:
>
>   * PICs/RVCs can only address issues with domain names themselves—not
>     the contents of websites or apps that use domain names;
>   * PICs/RVCs should not give registries unbounded discretion to
>     suspend domain names;
>   * and PICs/RVCs should not be used to create new domain name
>     policies that didn’t come through ICANN processes.
>
> 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.
>
> A guardrail 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.
>
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