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Jury still out on ICANN’s content policing powers

Kevin Murphy, May 16, 2024, 12:09:04 (UTC), Domain Policy

Key ICANN community groups have refused to come down on one side or the other in the debate about proposed content policing powers, leaving the question up in the air as ICANN considers a major bylaws amendment.

As I reported last month, ICANN is thinking about changing its governing bylaws to permit it to enforce Registry Voluntary Commitments — contract clauses that could include rules on the content of web sites — on registries in future new gTLD application rounds.

ICANN’s board is convinced that it needs to amend the Org’s bylaws, which explicitly prevent it policing content, in order to do this. It is concerned that “there are political, practical, and reputational risks associated with ICANN negotiating and entering into contract provisions that have the effect of restricting content in gTLDs”.

Such an amendment would require the consent of the five-member Empowered Community, to which ICANN answers, and so far there’s little indication that it would be able to secure the three votes needed.

The EC is made up of the ASO, the ccNSO, the GNSO, the ALAC and the GAC, and so far only the ALAC has said that it supports a bylaws amendment. The GNSO is split, with contracted parties dead against the amendment, and would be unlikely to vote in favor. The GAC seems to be on the fence.

The ASO and ccNSO both declined to express an opinion, saying matters related to gTLDs are outside of their remit, but ICANN chair Tripti Sinha pressed the groups to reconsider in letters this March.

Now, both groups have responded by digging their heels in — nope, it’s none of our business, they say.

“The topics addressed in the consultation are outside the scope of the ASO, so we respectfully decline the invitation to provide input at this time,” the ASO said.

“After careful consideration, we still do not see conditions which warrant our participation in the implementation of the next round of new gTLDs,” the ccNSO said.

The ccNSO added that it could only comment on a proposed bylaws amendment if it could see the draft text of the amendment, and that is not yet available.

If ICANN leadership was hoping for clarity on whether a content policing bylaws change is even feasible, it looks like it doesn’t have it yet.

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Comments (1)

  1. Jeff Neuman says:

    There are certain realities that we have to deal with. First, ICANN is the only entity that can approve (or not approve) new gTLDs into the root.

    From the beginning, the community has been worried about a number of “content” issues with respect to gTLDs. For example, we do not want TLDs that violate International norms on Public Morality or Order. We do not want for examples TLDs that are considered by all as hate speech, or ones that are for the promotion of certain criminal acts. Thus, if there is an application for .letskillkevinmurphy, objections can be made by the community or by the “independent objector. The latter is funded by ICANN (and objections by the ALAC can be funded by ICANN). So, that is already a form of content police.

    We also have rules that prohibit the registration of city names unless they are supported by the applicable governmental entity. That is another form of content policing.

    We have a trademark clearinghouse and a mandatory Sunrise process for Trademark Owners all intended to mitigate issues of “user confusion” which again is a form of content regulation.

    The UDRP, ICANN’s first Consensus Policy certainly involves the evaluation of content being displayed through the domain name system.

    The real question is how can we have these reasonable content-based restrictions without putting ICANN the organization in a position of making determinations as to whether there is or is not a “content violation.”

    The answer is not that we can’t consider content at all. It is that we need to set up a system whereby a third party is the arbiter of whether there are violations of a content-related policy and ICANN merely acts as the executor of any penalties that are voluntarily agreed to in their Registry Agreements. What does that mean?

    Lets suppose an application for .DrugThatisLegalinSomePlaces. The Governments object stating that they want to make sure that the Registry does not allow registrants to market or sell DrugThatisLegalinSomePlaces in those places where it is not legal. Lets assume that the Registry voluntarily agrees to this and the Governments say that they will allow it to go forward subject to this agreement being memorialized in the Registry Agreement.

    1. It is clear we do not want ICANN to be in a position to determine whether the Registry violated this provision in the Registry Agreement. It does not have the expertise to do this nor do we want them being the Drug Police.

    2. But what if the Agreement states that if there is an alleged violation, some agreeable third party (not funded by ICANN) will handle the complaint and make a decision about whether there is a violation and prescribe a mechanism to cure the violation.

    3. Now lets say this third party finds a violation and it is not cured (according to the independent third party – not ICANN).

    4. Can the Registry Agreement state, “In the event that this third party finds such a violation, and that it has not been cured, ICANN may impose Sanction A (perhaps a fine for a first violation).” In other words, the Sanction is levied by ICANN but pursuant to the third party that the Registry agreed to use.

    5. Some have argued that that would be content policing by ICANN. I disagree. ICANN has no role in looking at any content or making any content based decision. ICANN is merely applying a contractual provision that the Registry Agreed to in advance voluntarily in such a situation.

    In this scenario, ICANN is the only entity that can do this. The governments collectively are not a legal entity which can enforce a registry agreement to make sure the registry follows through with its commitment. So the only way to memorialize agreements with the governments in an ICANN Agreement. And the only entity that can “revoke” a TLD for a Registry that does not abide by its commitments is ICANN. And ICANN only has the ability to interact with registries through the Registry Agreements.

    Like it or not, ICANN has to be involved. The only thing we can really do is make sure that ICANN is not the entity that is charged with making the content-based decision as to whether there is a violation. The only other option is to allow all technically qualified registries proceed with their registries without committing to anything (other than the technical stuff) or not allowing any registries to move forward if there is an objection based on concerns over content. Neither of those solutions will be acceptable.

    Happy to discuss.

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