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ICANN: We will NOT police content

Kevin Murphy, June 10, 2024, 12:34:31 (UTC), Domain Policy

ICANN seems to have killed off the idea of content-restricting Registry Voluntary Commitments being included in registry contracts, judging by a conversation today between its board of directors and Governmental Advisory Committee.

Speaking moments ago at a session at ICANN 80 in Rwanda, director Becky Burr said the board took legal advice and decided that the Org’s bylaws do not allow it to enforce contractual commitments that involve content regulation.

“The board was looking at the legal issues there to determine whether under our bylaws we were permitted to accept and enforce Registry Voluntary Commitments related to the restriction of content… on Saturday at our board meeting the board has resolved that we can’t,” Burr said.

“We will not accept into the contracts the new registry commitments that involve the restriction of content,” she said.

The RVC-like Public Interest Commitments found in 2012-round gTLDs are grandfathered in the current bylaws and will not be affected by the RVCs decision, she said.

Registries will be free to make RVC-like commitments outside of their ICANN contracts, but ICANN will not enforce them, she said. She also said the board has ruled out hiring a third party enforcer, citing US case law and the First Amendment to the US constitution.

Burr said that if an Independent Review Process panel struck down a single RVC it would risk invalidating all of the RVCs in all registry contracts.

The board’s resolution will be published later this week, but its legal advice will remain confidential, she said.

The decision is a win for registries and registrars, which earlier this year responded to an ICANN consultation by saying it should not permit RVCs that regulate content. The Non-Commercial Stakeholders Group had even raised the possibility of legal action if ICANN went ahead with RVCs.

The opposing view was put forth by the Business Constituency, the Intellectual Property Constituency, and the At-Large Advisory Committee, all of which are now presumably feeling bummed out by the board’s latest decision.

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Comments (2)

  1. Milton Mueller says:
    June 11, 2024 at 12:25 pm

    Hello Kevin.
    You really need to give more credit to NCUC for this outcome. We were the only ones raising the anti-free speech implications of RVCs and emphasizing the way ICANN enforcement of them would violate one of its fundamental bylaws. We held two Issue Forums focusingon the issue (In Washington DC last year and in Puerto Rico this year) Here’s a look at the arguments we raised: https://www.internetgovernance.org/2024/03/05/public-and-private-power-in-internet-content-regulation-icann-and-registry-voluntary-commitments/

    Reply
    • Rubens Kuhl says:
      June 11, 2024 at 5:36 pm

      Kevin credited NCSG, of which NCUC is part. Inside NCSG, whether something comes from NCUC, NPOC or non-NCUC/NPOC SG members, is something that will be dealt internally, I believe.

      Reply

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