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“Shadow content policing” fears at ICANN 57

Kevin Murphy, November 7, 2016, Domain Policy

Fears that the domain name industry is becoming a stooge for “shadow regulation” of web content were raised, and greeted very skeptically, over the weekend at ICANN 57.

Attendees yesterday heard concerns from non-commercial stakeholders, notably the Electronic Frontier Foundation, that deals such as Donuts’ content-policing agreement with the US movie industry amount to regulation “by the back door”.

But the EFF, conspicuously absent from substantial participation in the ICANN community for many years, found itself walking into the lion’s den. Its worries were largely pooh-poohed by most of the rest of the community.

During a couple of sessions yesterday, EFF senior attorney Mitch Stoltz argued that the domain industry is being used by third parties bent on limiting internet freedoms.

He was not alone. The ICANN board and later the community at large heard support for the EFF’s views from other Non-Commercial User Constituency members, one of whom compared what’s going on to aborted US legislation SOPA, the Stop Online Piracy Act.

“Regulation of content through the DNS system, through ICANN institutions and through contracted parties is of great concern and I think should be of great concern to all of us here,” Stoltz said.

He talked about a “bright line” between making policies related to domain names and policies related to content.

“I hope that the bright line between names and content is maintained because I think once we get past it, there may be no other bright line,” he said.

“If we allow in copyright enforcement, if we allow in enforcement of professional or business licensing as a criterion for owning a domain name, it’s going to be very hard to hold that line,” he said.

ICANN has long maintained, though with varying degrees of vigor over the years, that it does not regulate content.

Chair Steve Crocker said yesterday: “It’s always been the case, from the inception. It’s now baked in deeply into the mission statement. We don’t police content. That’s not our job.”

That kind of statement became more fervent last year, as concerns started to be raised about ICANN’s powers over the internet in light of the US government’s decision to give up its unique ICANN oversight powers.

Now, a month after the IANA transition was finalized, ICANN has new bylaws that for the first time state prominently that ICANN is not the content cops.

Page one of the massive new ICANN bylaws says:

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

It’s pretty explicit, but there’s a catch.

A “grandfather” clause immediately follows, which states that registries and registrars are not allowed to start challenging the terms of their existing contracts on the basis that they dabble too much with content regulation.

That’s mainly because new gTLD Registry Agreements all include Public Interest Commitments, which in many cases do actually give ICANN contractual authority over the content of web sites.

Content-related PICs are most prominent in “Community” gTLDs.

In the PICs for Japanese city gTLD .osaka, for example, the registry promises that “pornographic, vulgar and highly objectionable content” will be “adequately monitored and removed from the namespace”.

While ICANN does not actively go out looking for .osaka porn, if porn did start showing up in .osaka and the registry does not suspend the domains, it would be in breach of its RA and could lose its contract.

That PIC was voluntarily adopted by the .osaka registry and does not apply to other gTLDs, but it is binding.

So in a roundabout kind of way, ICANN does regulate content, in certain narrow circumstances.

Some NCUC members think this is a “loophole”.

Another back door they think could be abused are the bilateral “trusted notifier” relationships between registries and third parties such as the movie, music and pharmaceutical industries.

Donuts and Radix this year have announced that the Motion Picture Association of America is allowed to notify it about domains that it believes are being used for large-scale, egregious movie piracy.

Donuts said it has suspended a dozen domains — sites that were TLD-hopping to evade suspension — since the policy came into force.

EFF’s Stoltz calls this kind of thing “shadow regulation”.

“Shadow regulation to us is the regulation of content… through private agreements or through unaccountable means that were not developed through the bottom-up process or through a democratic process,” he told the ICANN board yesterday.

While the EFF and NCUC thinks this is a cause for concern, they picked up little support from elsewhere in the community.

Speakers from registries, registrars, senior ICANN staff, intellectual property and business interests all seemed to think it was no big deal.

In a different session on the same topic later in the day, outgoing ICANN head of compliance Allen Grogan addressed these kinds of deals. He said:

From ICANN’s point of view, if there are agreements that are entered into between two private parties, one of whom happens to be a registry or a registrar, I don’t see that ICANN has any role to play in deciding what kinds of agreements those parties can enter into. That clearly is outside the scope of our mission and remit.

We can’t compel a registrar or a registry to even tell us what those agreements are. They’re free to enter into whatever contracts they want to enter into.

To the extent that they become embodied in the contracts as PICs, that may be a different question, or to the extent that the agreements violate those contracts or violate consensus policies, that may be a different question.

But if a registrar or registry decides to enter into an agreement to trust the MPAA or law enforcement or anyone else in deciding what actions to take, I think they’re free to do that and it would be far beyond the scope of ICANN’s power or authority to do anything about that.

In the same session, Donuts VP Jon Nevett cast doubt on the idea that there is an uncrossable “bright line” between domains and content by pointing out that the MPAA deal is not dissimilar to registries’ relationships with the bodies that monitor online child abuse material.

“We have someone that’s an expert in this industry that we have a relationship with saying there is child imagery abuse going on in a name, we’re not going to make that victim go get a court order,” he said.

Steve DelBianco of the NetChoice Coalition, a member of the Business Constituency, had similar doubts.

“Mitch [Stoltz] cited as an example that UK internet service providers were blocking child porn and since that might be cited as an example for trademark and copyright that we should, therefore, not block child porn at all,” he said. “I can’t conceive that’s really what EFF is thinking.”

Nevett gave a “real-life example” of a rape.[tld] domain that was registered in a Donuts gTLD.

“[The site] was a how-to guide. Talk about horrific,” he said. “We got a complaint. I’m not going to wait till someone goes and gets a court order. We’re a private company and we agreed to suspend that name immediately and that’s fine. There was no due process. And I’m cool with that because that was the right thing to do.”

“Just like a restaurant could determine that they don’t want people with shorts and flip-flops in the restaurant, we don’t want illegal behavior and if they want to move somewhere else, let them move somewhere else,” he said.

In alleged copyright infringement cases, registrants get the chance to respond before their names are suspended, he said.

Stoltz argued that the Donuts-MPAA deal had been immediately held up, when it was announced back in February, as a model that the entire industry should be following, which was dangerous.

“If everyone is subject to the same policies, then they are effectively laws and that’s effectively law-making by other means,” he said.

He and other NCUC members are also worried about the Domain Name Association’s Healthy Domains Initiative, which is working on voluntary best practices governing when registries and registrars should suspend domain names.

Lawyer Kathy Kleiman of the NCUC said the HDI was basically “SOPA behind closed doors”.

SOPA was the hugely controversial proposed US federal legislation that would have expanded law enforcement powers to suspend domains in cases of alleged copyright infringement.

Stoltz and others said that the HDI appeared to be operating under ICANN’s “umbrella”, giving it an air of having multistakeholder legitimacy, pointing out that the DNA has sessions scheduled on the official ICANN 57 agenda and “on ICANN’s dime”.

DNA members disagreed with that characterization.

It seems to me that the EFF’s arguments are very much of the “slippery slope” variety. While that may be considered a logical fallacy, it does not mean that its concerns are not valid.

But if there was a ever a “bright line” between domain policy and content regulation, it was traversed many years ago.

The EFF and supporters perhaps should just acknowledge that what they’re really concerned about is copyright owners abusing their powers, and target that problem instead.

The line has moved.