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Is the Defending Internet Freedom Act pro-crime?

Kevin Murphy, June 3, 2015, 12:00:52 (UTC), Domain Registries

The Defending Internet Freedom Act of 2015, introduced to the US Congress last month, contains a provision that could be interpreted as pro-pron, pro-piracy or even just pro-crime.

The act is designed to prevent the US giving up its oversight of ICANN/IANA unless certain quite strict conditions are met.

It’s a revised version of a bill that was introduced last year but didn’t make it through the legislative process.

Like the 2014 version, it says that the US cannot sever ties with ICANN until its bylaws have been amended in various ways, including:

ICANN is prohibited from engaging in activities unrelated to ICANN’s core mission or entering into an agreement or modifying an existing agreement to impose on a registrar or registry with which ICANN conducts business any condition (such as a condition relating to the regulation of content) that is unrelated to ICANN’s core mission.

It’s the “regulation of content” bit that caught my eye.

Presumably written as a fluffy, non-controversial protection against censorship, it ignores where the real content regulation conversations are happening within the ICANN community.

It’s a constant mantra of ICANN that is “doesn’t regulate content”, but the veracity of that assertion has been chipped away relentlessly over the last several years by law enforcement, governments and intellectual property interests.

Today, ICANN’s contracts are resplendent with examples of what could be argued is content regulation.

Take .sucks, for a timely example. Its Registry Agreement with ICANN contains provisions banning pornography, cyber-bulling and parked pages.

That’s three specific types of content that must not be allowed in any web site using a .sucks domain.

It’s one of the Public Interest Commitments that were voluntarily put forward by .sucks registry Vox Populi, but they’re still enforceable contract provisions.

Using a dispute resolution process (PICDRP), ICANN would be able to levy fines against Vox Pop, or terminate its contract entirely, if it repeatedly allows porn in .sucks web sites.

This sounds quite a lot like content regulation to me.

It’s not just .sucks, of course. Other registries have PICs that regulate the content of their gTLDs.

And every contracted new gTLD registry operator has to agree to this PIC:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

It’s convoluted, but it basically indirectly forces (via registrars) new gTLD domain registrants to, for example, agree to not infringe copyright.

The PIC is paired with a provision (3.18) of the 2013 Registrar Accreditation Agreement that requires all registrars to investigate and “take necessary and appropriate actions” in response to abuse reports within 24 hours of receipt.

Section 3.18 is essentially the RAA mechanism through which ICANN can enforce the PIC from the RA.

This is currently one of the most divisive issues in the ICANN community, as we witnessed during the recent Congressional hearings into ICANN oversight.

On the one hand, big copyright owners and online pharmacy watchdogs want ICANN to act much more ruthlessly against registrars that fail to immediately take down sites that they have identified as abusive.

On the other hand, some registrars say that they should not have to engage in regulating what content their customers publish, at least without court orders, in areas that can sometimes be amorphously grey and fuzzy.

Steve Metalitz, from a trade group that represents the movie and music industies at ICANN, told the US Congress that registrars are dismissing piracy reports without investigating them, and that “unless registrars comply in good faith, and ICANN undertakes meaningful and substantive action against those who will not, these provisions will simply languish as empty words”.

John Horton from pharmacy watchdog used the same Congressional hearing to out several registrars he said were refusing to comply with 3.18.

One Canadian registrar named in Horton’s testimony told DI that every complaint it has received from LegitScript has been about a web site that is perfectly legal in Canada.

In at least some cases, it seems that those pushing for ICANN to more stringently regulate content may have “internet freedom” as the least of their concerns.

If the Defending Internet Freedom Act becomes law in the US, perhaps it could prove a boon to registries and registrars upset with constant meddling from rights owners and others.

On the other hand, perhaps it could also prove a boon for those operating outside the law.

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