The Internets domain name system is not the place to police speech. ICANN, the organization that regulates that system, is legally bound not to act as the Internets speech police, but its legal commitments are riddled with exceptions, and aspiring censors have already used those exceptions in harmful ways. This was one factor that made the failed takeover of the .ORG registry such a dangerous situation. But now, ICANN has an opportunity to curb this abuse and recommit to its narrow mission of keeping the DNS running, by placing firm limits on so-called voluntary public interest commitments (PICs, recently renamed Registry Voluntary Commitments, or RVCs).
For many years, ICANN and the domain name registries it oversees have given mixed messages about their commitments to free speech and to staying within their mission. ICANNs bylaws declare that ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internets unique identifiers or the content that such services carry or provide. ICANNs mission, according to its bylaws, is to ensure the stable and secure operation of the Internet's unique identifier systems. And ICANN, by its own commitment, shall not act outside its Mission.
Buttheres always a but. The bylaws go on to say that ICANNs agreements with registries (the managing entities of each top-level domain like .com, .org, and .horse) and registrars (the companies you pay to register a domain name for your website) automatically fall within ICANNs legal authority, and are immune from challenge, if they were in place in 2016, or if they do not vary materially from the 2016 versions.
Therein lies the mischief. Since 2013, registries have been allowed to make any commitments they like and write them into their contracts with ICANN. Once theyre written into the contract, they become enforceable by ICANN. These voluntary public interest commitments have included many promises made to powerful business interests that work against the rights of domain name users. For example, one registry operator puts the interests of major brands over those of its actual customers by allowing trademark holders to stop anyone else from registering domains that contain common words they claim as brands.
Further, at least one registry has granted itself sole discretion and at any time and without limitation, to deny, suspend, cancel, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status for vague and undefined reasons, without notice to the registrant and without any opportunity to respond. This rule applies across potentially millions of domain names. How can anyone feel secure that the domain name they use for their website or app wont suddenly be shut down? With such arbitrary policies in place, why would anyone trust the domain name system with their valued speech, expression, education, research, and commerce?
Voluntary PICs even played a role in the failed takeover of the .ORG registry earlier this year by the private equity firm Ethos Capital, which is run by former ICANN insiders. When EFF and thousands of other organizations sounded the alarm over private investors bid for control over the speech of nonprofit organizations, Ethos Capital proposed to write PICs that, according to them, would prevent censorship. Of course, because the clauses Ethos proposed to add to its contract were written by the firm alone, without any meaningful community input, they had more holes than Swiss cheese. If the sale had succeeded, ICANN would have been bound to enforce Ethoss weak and self-serving version of anti-censorship.
The issue of PICs is now up for review by an ICANN working group known as Subsequent Procedures. Last month, the ICANN Board wrote an open letter to that group expressing concern about PICs that might entangle ICANN in issues that fall outside of ICANNs technical mission. It bears repeating that the one thing explicitly called out in ICANNs bylaws as being outside of ICANNs mission is to regulate Internet services or the content that such services carry or provide. The Board asked the working group [pdf] for guidance on how to utilize PICs and RVCs without the need for ICANN to assess and pass judgment on content.
EFF supports this request, and so do many other organizations and stakeholders who dont want to see ICANN become another content moderation battleground. Theres a simple, three-part solution that the Subsequent Procedures working group can propose:
In short, while registries can run their businesses as they see fit, ICANNs contracts and enforcement systems should have no role in content regulation, or any other rules and policies beyond the ones the ICANN Community has made together.
A guardrail on the PIC/RVC process will keep ICANN true to its promise not to regulate Internet services and content.It will help avoid another situation like the failed .ORG takeover, by sending a message that censorship-for-profit is against ICANNs principles. It will also help registry operators to resist calls for censorship by governments (for example, calls to suppress truthful information about the importation of prescription medicines). This will preserve Internet users trust in the domain name system.
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