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GoDaddy getting a free pass from porn jail?

ICANN has shirked its compliance duties and is handing GoDaddy a “Get Out of Jail Free” card with proposed changes to their .xxx registry agreement, according to critics.

A recently closed public comment period saw a mixed response from the community on whether GoDaddy should be allowed to throw out inconvenient and costly terms of its 10-year-old registry contract and operate .xxx more of less like any other open gTLD.

While the deal’s chief critic, consultant and former ICANN director Michael Palage, has made a detailed case explaining why he thinks the amendments should not go ahead, other commenters agree with GoDaddy that some of its stricter registration policies are no longer needed.

Tucows said that the current .xxx rules, which require registrants to verify their identities, are “cumbersome or non-transparent”, not only adding unnecessary friction to the registration path but also amounting to the “surveillance of sex workers”.

Palage managed to persuade the At-Large Advisory Committee to submit its own comments, in which ALAC claims that GoDaddy has already “walked away” from three important contractual commitments on registrant verification and abuse reporting “unilaterally and without consequence from ICANN Contractual Compliance”.

According to Palage, when GoDaddy acquired ICM Registry from MMX a few years ago it unilaterally decided to stop verifying the identities of its registrants and did away with the unique community membership IDs that enabled it to deactivate a registrant’s entire portfolio if it was found to be in breach of the rules by, for example, publishing child sexual abuse material.

ICM also stopped donating $10 for every registration to its oversight body, IFFOR, which in turn spent the money it did receive on director salaries rather than making cash grants to child protection causes, Palage says. I’ve previously gone into some depth on this.

“I am concerned that instead of ICANN compliance holding ICM Registry accountable to these representations, they’re essentially giving them a get out of jail card free and potentially removing the ability for third parties to hold ICM Registry accountable to those representations,” Palage said during a March presentation to the ALAC.

His draft comments for the ALAC were subsequently submitted under his own name; ALAC submitted a shorter, somewhat watered down version drafted by chair Jonathan Zuck.

But ALAC and Palage are in agreement that GoDaddy should have gone through the usual Registry Services Evaluation Process if it wanted to change the terms of its contract, and that the proposed amendments set a terrible precedent. ALAC wrote:

ALAC believes that commitments made in order to operate a TLD by a Registry Operator should be enforceable, subsequently implemented by the Registry Operator, and enforced by ICANN Contractual Compliance… The ALAC is concerned that the removal of commitments, through a contract renewal, could set a precarious precedent for non-compliance without repercussion for existing Registry Operators

The Business Constituency echoed ALAC’s concerns in its own comments, as did registry operator CORE Association.

Comments in favor of the .xxx amendments came from two veteran, dissenting voices from the At-Large community, Evan Leibovitch and Carlton Samuels. They said removing the extra requirements from the .xxx contract would reduce confusion and were worthless anyway:

Given the benefit of hindsight, the “Sponsored gTLD” program and designation have not on the whole provided any significant benefit to the Internet-using public. As such, we welcome the removal of this designation — and any associated extra contract requirements — from all applicable Registry Agreements going forward.

Tucows’ support for the amendments are based largely on what a pain in the neck it can be — for registrant and registrar — to register a .xxx domain. Its comments explain:

Currently, to register a .xxx domain, one must become a member of the Sponsored Community, which involves a separate application process to verify eligibility. This extra step is a barrier for those looking to quickly secure a domain. Additionally, the domain cannot resolve—meaning it cannot be used to host a website—without a valid Membership ID, which is only issued after this verification process… This activation involves additional interactions between the registry, the registrant, and the registrar. Additional steps in the registration process can be a significant deterrent as they introduce complexity and time delays.

I’m not really buying the “surveillance of sex workers” claim. Porn producers in many jurisdictions, including the US, already routinely verify the identities of their performers, and keep copies of their identity documents on file, as a legal requirement to ensure their employees are not underage.

ICANN is due to publish its summary of the public comment period by May 20.

How ICANN handles the renewal of and amendments to the .xxx contract will be interesting to watch. Will the Governmental Advisory Committee get a chance to weigh in before the deal is signed? Will the board pass a resolution, or will we see a repeat of the .org renewal debacle?

Correction: Sinha’s seat is safe

Kevin Murphy, May 3, 2024, Domain Policy

Last Friday, I speculated that, based on my back-of-the-envelope calculations, ICANN chair Tripti Sinha could find herself ineligible to continue on the ICANN board of directors this November, due to geographic diversity quotas.

My calculations were incorrect, it turns out. While she still needs to be reappointed by the Nominating Committee, Sinha is not limited by the geographic diversity limits. I’ve deleted the article and apologize for the error.

D3 announces seventh blockchain gTLD client

Kevin Murphy, May 2, 2024, Uncategorized

D3 Global has announced yet another likely new gTLD applicant from the blockchain space.

The specialist consultancy said it has partnered with MAKE and the Casper Foundation, a software developer and its non-profit backer respectively, to apply for .cspr when ICANN opens its long-awaited next round of new gTLD applications in a couple years.

It’s the seventh such deal D3, which says it can help blockchain companies link their alternative namespaces to the DNS, has announced since its launch late last year.

It is also working with partners to apply for .ape, .core, .vic, .near, .gate, and .shib.

Single-letter .com case back in court

Kevin Murphy, May 1, 2024, Domain Policy

The domainer trying to get his hands on all the remaining single-character .com and .net domain names has re-filed his lawsuit against ICANN.

Bryan Tallman of VerandaGlobal.com (dba First Place Internet) has filed an amended complaint in a California court, after the judge threw out his initial complaint in March. He alleges deceptive trade practices and breach of contract, among other things.

His claim is that he has sole rights to all unregistered single-character .com and .net domains, such as 1.com and a.net, because he’s registered the matching domains in Verisign’s internationalized domain name transliterations, such as the Hebrew קום. or the Korean/Hangul .닷컴.

He paid Verisign, via registrar CSC Global, $25,285 for 1.닷넷 back in 2017 and reckons he was also buying the exclusive rights to 1.com and 1.net. The same arguments applies to the dozens of other ASCII.IDN domains he registered, according to the complaint.

The argument rests almost entirely on a letter (pdf) from Verisign to ICANN in 2013, in which the registry sets out some of its plans for its IDN gTLDs.

The letter is imprecisely worded, to the point where if you squint a bit, drop some acid, and hit your head against the wall a few times, you might be persuaded that Verisign is saying it would be willing to sell the rights to 1.com for 25 grand.

The complaint says this letter is “ICANN policy”, and the rest of its arguments are pretty much based on that incorrect premise.

ICANN has already filed a demurrer, asking the court to throw out the complaint again, largely on the grounds that the letter is not “policy” and ICANN doesn’t have a contract with any of the plaintiffs that it could be accused of breaching anyway.

The latest filings can be found here.

ICANN to slash costs as Verisign’s magic money tree dries up

Kevin Murphy, April 30, 2024, Domain Policy

ICANN is looking for $8 million of cost savings, $3 million more than it expected a quarter ago, amid gloomy predictions about the domain industry’s likely performance this year.

The Org last week told community members that it’s having to revise its expected revenue down by $3 million to $145 million after it became clear domain sales won’t be as good as previously thought. The new budget is due to be approved by the board this coming weekend.

“ICANN faces an inflation of its costs and also happens to face a lack of inflation of its funding,” CFO Xavier Calvez said on one of two conference calls explaining the changes.

ICANN’s bean counters are now predicting a 4% decline in transaction fees from legacy gTLDs — a line item mostly comprising .com — for ICANN’s fiscal 2025, which begins this July. Back in December, when the first draft of the budget was published, the prediction was for 0% growth.

The grim numbers match Verisign’s own growth story for the rest of the calendar year. Company bosses last week predicted .com/.net to grow at between 0.25% and negative 1.75%, a downwards revision on its guidance in February.

Talking to Verisign and other registries and registrars and looking at the monthly transaction data they file is the main way ICANN formulates its budget predictions.

“We gauged very strong expectations of a contraction in domain name registrations,” ICANN programs director Mukesh Chulani said.

Meanwhile, ICANN estimates transaction fees for new gTLDs will increase 7% in FY25, obviously from a much lower base then legacy, compared to the December estimate of 2% growth.

ICANN was already expecting its funding to miss its spending requirements by $5 million, but that figure is now $8 million. But rather than run ops at a loss, ICANN has instead put this number on a line labelled “Cost Savings Initiatives” in order to present a balanced bottom line.

Where these cost savings might come from doesn’t seem to have been figured out yet, and there’s some community worry that services might be affected by cuts.

There was some talk of finding efficiencies in the travel budget or with contractors, but those budgets are $13 million and $24 million respectively, so any cuts there could be swingeing.

By far the largest expenditure line item is staff, which costs $90 million. But there’s been no change to the expected number of ICANN full-timers in the budget, so layoffs don’t seem to be on the cards just yet.

Community revolts over ICANN’s auction proceeds power grab

Kevin Murphy, April 30, 2024, Domain Policy

Parts of the ICANN community have revolted over ICANN’s move to make it easier to turn off the mechanisms used to appeal its decisions.

Both registries and registrars, along with their usual opponents in the business and intellectual property communities, have told the Org that a proposal to change its foundational bylaws are overly broad and creates new powers to diminish ICANN’s accountability.

Meanwhile, the Intellectual Property Constituency seems to have escalated its beef with ICANN related to the proposals, entering into a Cooperative Engagement Process with ICANN. CEP is usually, but not always, a precursor to an expensive, quasi-judicial Independent Review Process case.

The row relates to the Grant Program, which launched a month ago and will see ICANN hand out $217 million it gained from auctioning registry contracts during the 2012 new gTLD program application round.

The rules of the program were developed by the Cross-Community Working Group on New gTLD Auction Proceeds.

The CCWG was afraid that ICANN might wind up frittering away most of the money on legal fees unless unsuccessful grant applicants, and third parties, were banned from appealing grant decisions they didn’t like. So its Recommendation 7 proposed a bylaws amendment that would prevent the Independent Review Process and Request for Reconsideration process from being used with reference to the Grant Program.

What ICANN came up with instead is a bylaws amendment that could be applied not only to the Grant Program, but also potentially to any future activities.

Specifically, ICANN’s proposed amendment gives future CCWGs, assuming they have sufficient community representation, the ability to recommend exceptions to the accountability mechanisms, which ICANN could then accept without having the amend the bylaws every time.

But almost every constituency that has filed an opinion on the proposals so far thinks ICANN has gone too far.

The IPC said says ICANN’s proposal is “unacceptably broad and exceeds what is necessary to give effect to Recommendation 7” adding:

The IPC is also concerned that making such a broad Bylaws amendment could have the consequence of normalizing the idea of removing access to accountability mechanisms, rather than this being an exceptional event. This is not something that should be encouraged.

The Registries Stakeholder Group said the proposal “creates an alternative path for amending the Bylaws that contradicts the existing amendment processes”

“The Accountability Mechanisms are foundational to ICANN’s legitimacy. Access to Accountability Mechanisms should be prevented only in rare circumstances with the clear support of the Empowered Community,” it added.

The Registrar Stakeholder Group concurred, writing:

Robust Accountability Mechanisms are a lynchpin of ICANN’s broader accountability structure. They should only be disallowed, if ever, in very specific circumstances, and as a result of the full bylaw amendment process. The proposed bylaws amendment vests CCWGs with the power to disallow Accountability Mechanisms which we believe is inappropriate.

Several commenters pointed out that CCWGs are less formal ICANN policy-making structure, with fewer checks and balances than regular Policy Development Processes.

The only dissenting view came from the At-Large Advisory Committee, which said it “strongly supports” ICANN’s proposed amendment, writing:

Although any limitation in accountability is potentially onerous, the ALAC is comfortable that the three conditions proposed in the amendment only allow such limitations in situations where a more specific Bylaw limitation would also be approved by the Empowered Community.

In a related development, the IPC has taken the highly unusual move of entering CEP with ICANN, suggesting it is on the IRP path.

The IPC had filed a Request for Reconsideration late last year, at a time when it appeared that ICANN had outright rejected Recommendation 7 (having previously approved it), but ICANN’s board threw it out mostly on the grounds that the IPC could not show it had been harmed, which the IPC found curious.

If the IPC were to go to IRP, it would be unprecedented. The mechanism has only ever been used by companies defending their commercial interests, never by one of ICANN’s own community groups on a matter of principle.

ICANN publishes its Woke Manifesto. Here’s my hot take

Kevin Murphy, April 19, 2024, Domain Policy

ICANN’s antics rarely surprise me after close to a quarter-century of coverage, but today it’s published what I can only describe as its “Woke Manifesto” and while reading through it this afternoon I pretty much peeled my uvula raw and ragged, alternating as I did between howls of outrage and uncontrollable fits of incredulous laughter.

On the latest step of its descent into solipsistic pomposity, Org has released its Diversity and Inclusion Toolkit, an interactive web page and associated documents and survey templates designed to help the ICANN community’s various constituencies become more diverse, equitable and inclusive.

“It is designed to empower our community groups in assessing, measuring, and promoting diversity within and across their membership,” ICANN wrote in its introduction, attributed to outgoing policy VP David Olive.

A laudable goal in theory, but in practice what ICANN has come up with is often hilarious, poorly sourced, badly edited, baffling, hypocritical, self-contradictory, and condescending to both the people it wants to include and the people it perceives are already over-included. In parts, sadly, it’s borderline misandrist and maybe a little bit accidentally racist.

The Manifesto is the result of ICANN’s work to implement the recommendations of the Final Report (pdf) of the Cross Community Working Group on Accountability, the most-recent phase of one of ICANN’s interminable navel-gazing exercises.

Recommendation 1.6 of that report states:

ICANN staff should provide support and tools for the SO/AC/Groups to assist them in assessing their diversity in an appropriate manner. ICANN should also identify staff or community resources that can assist SO/ACs or other components of the community with diversity-related activities and strategies.

Or does it? If we believe the new Manifesto, Rec 1.6 actually states:

ICANN staff should provide support and tools for the SO/AC/groups to assist them in assessing their diversity in an appropriate manner. ICANN should also identify staff or community resources that can assist SO/ACs or other components of the community with diversity-related activities and strategies.D&I requires equity to succeed.

The emphasis in that second pull-quote is mine. The lack of a space after the period before the last sentence is ICANN’s error.

It looks like at some point, possibly quite recently, ICANN has sneaked in the reference to “equity”.

If you’re triggered by the DEI (Diversity, Equity, Inclusion) abbreviation, best look away now. The Manifesto contains all the other zeitgeisty buzz-words you probably also hate.

Microaggressions? Check. Privilege? Check. Identity? Check. Intersectionality? Check. Unconscious bias? Check. Psychological safety? Check.

An easily overlooked footnote seems to explain why “equity” has made its way into the document:

In this toolkit we refer to “diversity” and “inclusion,” but “equity” is also a significant concept to understand. Equity refers to fairness and justice, recognizing that we do not all start from the same place and must therefore make adjustments to imbalances; for example promoting the inclusion of people from marginalized/underrepresented populations. It is distinguished from equality, which means providing the same to all.

I take no position on whether this is a good or bad way to tackle inequality of outcome, if it exists, at ICANN, but let’s be honest, this is just another way of describing what has been known as “positive discrimination” or “affirmative action” in other contexts.

But while affirmative action usually refers to issues of race in North America, such as in the ongoing debate about university admission policies, ICANN’s Manifesto is notable for containing no direct references to skin color whatsoever.

ICANN’s “7 key elements of diversity”, which come from the CCWG-Accountability’s report, are: geographical/regional representation, language, gender, age, physical disability, diverse skills, and stakeholder group or constituency.

Let’s look at what the Manifesto says about some of these identity categories. Yes, I’m going there.

“You were so worried you came from Iran”

Possibly the most egregiously condescending and baffling part of the Manifesto is “Ideas for indivdual action” (pdf) (the misspelling of “individual” is in the original, in the title, on the cover page), which offers suggested language to avoid offending people on the basis of gender, age, disability, or geography.

I’ve no idea to whom this document is addressed (I infer it’s able-bodied, Anglophone men), but it seems ICANN thinks it has a problem with people referring to East Asian community members as “Orientals”. Because apparently it’s the 1950s. In the same breath, it suggests that “whitelist” — a term commonly used in the security industry to refer to lists of explicitly permitted domains — is as offensive as “Chinaman”.

It’s worth noting that the word has been used repeatedly by ICANN itself, including quite recently. Under October 2023 terms, you can’t even apply to be an accredited registrar without agreeing to “whitelist” ICANN’s domains.

In a glorious example of accidental misogyny, the document (six years in the making) later says that people should avoid using forms of address such as “Mrs” or “Ms” because: “This language implies that having a disability is not an ordinary aspect of being human”.

The document is all over the place on issues of gender, on some pages directly contradicting ICANN’s own current practices and on others internally contradicting itself.

At one point, it says “there is no need to mention gender, i.e. saying ‘a female lawyer’ diminishes the professional status of that person”. This from the organization that put out this press release celebrating its two “female leaders”, last year.

At another point, it says we should use “Ombudsperson” instead of “Ombudsman”, while ICANN itself recently made the switch to “Ombuds” instead.

The document is also confused about whether biological reality exists. It tells us that we should accept that “that we are all biased by virtue of our biology” and a couple pages later admonishes against terms such as “biologically male” because “These terms imply that gender is a biological and binary fact that can only be changed through surgery — if at all”.

The most jaw-dropping gender-related moment comes when the document attempts to explain the concept of “privilege” and offers some suggestions as to how those who possess it may overcome it to increase the inclusiveness of their communities.

I swear I’m not making this quote up:

If you have male privilege: Hold back, and allow female community members to speak before you do. If they do speak and are not acknowledged, call this out and give credit for their input.

ICANN wants to make “Ladies first” official doctrine? Perhaps it is the 1950s.

While I don’t doubt there are some women in the ICANN community who would whoop with delight at the chance of automatically getting first dibs at the mic, I know there are many others who will find the suggestion that men should give them special treatment, and subsequently pat them on the head for their contributions, deeply offensive.

“I hear you’re a racist now, Father”

It’s not just gender and age where the Manifesto seems to trip over its own desire to virtue signal without thinking through whether what it’s actually saying is internally consistent.

We’re told to avoid “Asking people of a different appearance where they are from” and a few pages later to “Show an interest in other people’s cultures and backgrounds, ask questions with sincere and respectful curiosity”.

How, ICANN, how?! How can I show an interest in this new friend’s culture if I’m not allowed to ask him where he’s from? Am I only supposed to show an interest in his culture if he shares my “appearance”. Can I only talk to people of the same race? Is that what you want, ICANN?!

We’re talking largely about ICANN meetings here, remember. People from over 100 countries on every continent flock into a drab, windowless conference center three times a year. It’s the most natural thing in the world, unwinding at an after-hours cocktail reception, to ask somebody where they’re from.

If, in the hotel bar after eight hours of patiently not interrupting anybody you think you might not fully intersect with, somebody asks you “Where are you from?”, regardless of whether you share common visual characteristics, chances are it’s because your lanyard has flipped over and they’re asking the name of your employer in order to quickly triage business opportunities.

Speaking as somebody who was an immigrant in the US for the best part of a decade, I know it can be irritating after the hundredth time you’re asked your nationality, but I never found it to be, as ICANN would have us believe, an “aggression”, micro or otherwise.

“I’m Disabled!”

The document defines a microaggression as “the everyday messages we send to other people through our language and behavior that cause them to feel devalued, slighted, discouraged or excluded”. We’re told: “What makes microaggressions offensive isn’t the exact words or actions but, instead, the underlying meaning that reveals bias”.

The first example ICANN gives of a microaggression?

A weak handshake with insincere smile.

I find this hugely offensive on a personal level.

My lived experience is as an effete Englishman with a congenitally pathetic handshake, also suffering from the effects of decades of underfunded NHS dentistry and still recovering from an ischemic stroke that rendered my hand-shaking hand about as strong as a sloth’s yawn.

There’s nothing I find more macroaggressive at an ICANN meeting — apart from perhaps a French woman I barely know attempting to kiss me on the cheek — than an American with a $5,000 suit and teeth the color of a Grand Wizard’s hood trying to tear my arm off at the hip when he or she moves to greet me.

But apparently, under ICANN’s rules, the combination of my disability and nationality makes me the bigot. Thanks ICANN, I’m going to feel really psychologically safe at my next meeting.

“What exactly does IT stand for?”

On a professional level, what really boils my piss is this directive, which appears under a section entitled “Use respectful language”:

Avoid jargon: Minimize your use of jargon, shorthand and acronyms that may not be understood by newcomers or people with different experience and skillsets

I totally agree, of course. It’s long since past the point that even some ICANN community veterans often have no clue what ICANN is talking about without a quick google or reference to a glossary.

So why in the Jiminy Cricket is ICANN introducing this package of Orwellian social guidance with the sentence “I am thrilled to announce the launch of ICANN’s Diversity and Inclusion Toolkit, a pivotal resource to support the implementation of the Work Stream 2 (WS2) recommendations.”

Work Stream 2? Work Stream 2 of what? The blog post doesn’t say, and you have to get several clicks deep into the Manifesto itself before you’ll find a reference to, or link to, the CCWG report.

Who is this aimed at? Insiders. Nobody else could possibly understand this stuff.

Alibaba, Name.com among new RDRS opt-ins

Kevin Murphy, April 17, 2024, Domain Registrars

Eleven registrars representing millions of domain names signed up to support ICANN’s Registration Data Request Service last month. One registrar dropped out.

One of Chinese tech giant Alibaba’s registrars was among the additions. Alibaba Cloud Computing (Beijing), which has 2.6 million names under management, is a notable addition given that one of its sister registrars was recently hit with an ICANN Compliance action due to alleged abuse inaction.

Also opting in to the Whois band-aid service were Identity Digital’s Name.com (2.2 million names), three of its sister companies, and Newfold Digital’s Register.com (1.5 million names). Nominalia, P.A Vietnam, and Ubilibet also signed up.

Realtime Register dropped out of the voluntary service, the third registrar to opt out since RDRS launched in Novemeber.

ICANN says its coverage is now 57% of the total gTLD domains out there, up from 55% in February. It has 86 registrars on-board in total, including most of the largest.

RDRS is a two-year pilot that offers people who want access to private Whois records, largely intellectual property interests and law enforcement, a simpler way to connect with the registrars holding that data.

Alibaba hit with ICANN breach notice

One of the companies in the Alibaba Group, China’s biggest registrar and one of the largest technology companies in the world, has been handed a breach notice, containing a long list of complaints including abuse failures and non-payment of fees, by ICANN Compliance.

Alibaba.com Singapore E-Commerce, one of Alibaba’s four accredited registrars, failed to respond to abuse reports and failed to respond to ICANN’s requests for information about its failure to respond to abuse reports, the notice claims.

The breach notice will likely to be the last to be sent out for claims under the current version of the Registrar Accreditation Agreement. In two days, April 5, stricter domain takedown rules approved earlier this year will become effective on all registrars.

The abuse claims seem to cover four domains in .com and .vip that look like typos that could have been used in phishing attacks.

ICANN Compliance says that Alibaba also hasn’t published the names of its officers or its redemption fees, as the RAA also requires. It says the registrar also owes it an unspecified amount of past-due fees.

The chronologies reported in the notice claim Alibaba has been giving Compliance the run-around, failing to respond to calls and emails, since early November.

All four registrars in the Alibaba Group have the same published email and phone details, but it’s not clear whether the same ones are listed in ICANN’s internal directory.

Alibaba.com Singapore is one of four accredited registrars owned by Alibaba, the Chinese e-commerce giant. The parent is not short of a bob or two, reporting revenue equivalent to $126 billion last year. It can afford to pay its ICANN fees.

Of the three Alibaba registrars that have domains the “Singapore” one is the smallest, with about 660,000 domains under management. The other two have 3.2 million and 2.6 million domains to their accreditations.

The company has been told it has until April 17 to come back into compliance or risk getting terminated.

ICANN content policing power grab may be dead

Kevin Murphy, April 3, 2024, Domain Policy

A move by ICANN to grant itself more formal “content policing” powers may be dead, after the community was split on the issue and governments failed to back the move.

The Governmental Advisory Committee yesterday sent comments essentially opposing, for now at least, the idea of ICANN reforming its bylaws to give it more powers over internet content, making it very unlikely that ICANN would be able to get such amendments approved by its community overseers.

The comments came a few days after ICANN extended the deadline for responses to a December 2023 consultation on whether applicants in the next new gTLD round should be able to sign up to so-called Registry Voluntary Commitments that regulate content in their zones.

RVCs would be an appendix to ICANN Registry Agreements which would commit a registry to, for example, ban certain types of registrant or certain types of content from domains in their gTLDs.

They’re basically a rebadged version of the Public Interest Commitments found in RAs from the 2012 round, in which the likes of .sucks agreed to ban cyberbullying and .music agreed to ban piracy.

But they’ve got ICANN’s board and lawyers worried, because the Org’s bylaws specifically ban it from restricting or regulating internet content. They’re worried that the RVCs might not be enforceable and that ICANN may wind up in litigation as a result.

ICANN has therefore proposed a framework (pdf) in which RVCs would be enforced by ICANN only after an agreed-upon third-party auditor or monitor found that a registry was out of compliance.

The board sent out several pages of questions to all of its Supporting Organizations and Advisory Committees in December, asking among other things whether the bylaws needed to be amended to clarify ICANN’s role, but the responses were split along traditional lines.

Registries and registrars were aligned: there’s no need for a bylaws change, because ICANN should not allow RVCs that regulate content into its contracts at all.

“ICANN should maintain its existing bylaws which exclude content from its mission, and allowing any changes to this could be a slippery slope opening ICANN to becoming a broader ‘content police’,” the Registrars Stakeholder Group said in its response, giving this amusing example:

An example of a content restriction is provided in the proposed implementation framework for .backyardchickens (e.g. no rooster-related content). Restricting rooster-related content would require a significant amount of policing, and could even prohibit valuable content that would benefit such a TLD. For example, a backyard hen farmer might want to promote the pedigree lineage of the roosters that helped sire the hens, show pictures of the roosters that were the fathers, etc. All of this could in theory be prohibited,but would also require review and subjective analysis. This would be a very slippery slope for ICANN, and a substantial departure from its mission. Restricting rooster content would then put ICANN in the place of enforcing laws that prohibit backyard roosters, rather than relying upon the competent government authorities charged with overseeing residential animal husbandry.

The Non-Commercial Stakeholders Group was more strident in its tone, even raising the possibility of legal action if ICANN went down the content policing route, saying “the best way for the Board to address content-related PICs and RVCs is to make it clear that it will reject them categorically.” It added:

The prohibition on content regulation in ICANN’s mission is extremely important and very clear. Mission limitations were a critical part of the accountability reforms that were required before ICANN would be released from US government control in 2016… NCSG will mount a legal challenge to any attempt to dilute this part of the mission.

The opposing view was held by the Business Constituency, the Intellectual Property Constituency, and the At-Large Advisory Committee, which is tasked with representing the interests of ordinary internet users.

They all said that ICANN should be able to allow content-related RVCs in registry contracts, but the IPC and BC said that no bylaws amendment is needed because the bylaws already have a carve-out that enables the Org to enforce PICs in its agreements. The ALAC said a bylaws amendment is needed.

“There is a distinction between ICANN regulating, i.e imposing ‘rules and restrictions on’ services and content, versus the registry operator voluntarily proposing and submitting to such rules and restrictions,” the IPC wrote.

“There is also a distinction between ICANN directly enforcing such rules and restrictions on third parties, i.e. registrants, versus ICANN holding a registry operator to compliance with the specifics of a contractual commitment,” it added.

The last community group to submit a response, fashionably late, was the GAC, which filed its response yesterday having reviewed all the other responses submitted so far. The GAC arguably has the loudest voice at ICANN, but its comments were probably the least committed.

The GAC said that ICANN should only go ahead with a bylaws amendment if it has community backing, but that the community currently lacks consensus. It said, “at this stage there are not sufficient elements to justify commencing a fundamental bylaws amendment to explicitly enable the enforcement of content-related restrictions”.

However, the GAC still thinks that RVCs “will continue to serve as tools for addressing GAC concerns pertaining to new gTLD applications during the next round” and that it wants them to be enforceable by ICANN, with consequences for registries found in breach.

The GAC said that it “will continue to explore options to address this important question”.

This all means that ICANN is a long way from getting the community support it would need to push through a bylaws amendment related to content policing. That’s considered one of the “Fundamental Bylaws” and can only be changed with substantial community support.

Such amendments require the backing of the Empowered Community. That’s the entity created in 2016 to oversee ICANN after it severed ties with the US government. It comprises individuals from five groups — the GAC, the GNSO, the ccNSO, the ALAC and the Address Supporting Organization.

For a fundamental bylaws amendment to get over the line, at least three of these groups must approve it and no more than one must object.

With the GNSO, given its divisions, almost certainly unable to gather enough affirmative votes, the GAC seemingly on the fence, and the ASO and ccNSO recusing themselves so far, only the ALAC looks like a clear-cut yes vote on a possible future bylaws amendment.

Perhaps that’s why ICANN chair Tripti Sinha has written to the ASO and ccNSO in the last few days to ask them whether they’d like to think again about ducking out of the consultation, giving them an extra two weeks to submit comments after the original March 31 deadline.

The ccNSO handles policy for country-code domains and the ASO for IP addresses. Both have previously told ICANN that gTLD policy is none of their business, but Sinha has urged them both to chip in anyway, because “the ICANN Bylaws govern us all”.