Perhaps the toughest challenge facing any putatively multi-stakeholder governance process is its capture by vested interests. ICANN is a textbook illustration of this. Ever since its formation, public interest advocates have been engaged in a struggle to assert their influence within ICANN against an onslaught of intellectual property lobbyists, intent on stacking every committee and process with their own trademark, copyright and patent lawyers.
IP owners have attempted to subvert the ICANN policy process by introducing vague language into ICANN's contracts and then seeking to reinterpret them as mandates for draconian IP enforcement without court supervision. A key event was the introduction of a 2013 revision to ICANN's agreement with registrars, that requires them to take unspecified enforcement measures against those who "abuse" domain names. This has led to demands from copyright and pharma interests that registrars cancel domain names allegedly used to host or sell allegedly infringing content, side-stepping the small issue of such allegations actually being reviewed by a court.
At least as far as ICANN staff are concerned, a line in the sand was drawn with a powerful June blog post denying their responsibility to be the Internet content police; a position that was reiterated in comments made by President Fadi Chehadé here in Dublin when he said "We have no responsibility to render judgement about which sites are terrorists, which sites are the good pharmacies, which sites are the bad pharmacies, which sites are committing crimes, which sites are infringing copyrights". Yet at this week's meeting, the demands from law enforcement and rightsholder groups continue to mount, indicating that this issue is far from going away.
Voluntary Practices Skirting the Rule of Law
This has led to some domain registries adopting their own sets of practices for the rapid suspension of domain names that are allegedly being used for unlawful or abusive purposes, either independently or in private agreements with rightsholders or authorities. These, and analogous practices of other Internet intermediaries such as search engines and ISPs, were discussed today in a session today on "Role of Voluntary Practices in Combating Abuse and Illegal Activity". During the session, Frank Cullen of U.S. Chamber of Commerce Global Intellectual Property Center argued, "Where voluntary agreements are not effectively addressing the problem, you have the real risk of government stepping in," and implied that ICANN should use its contracts with registries and registrars to press them into compliance.
We believe that this overlooks the danger of sacrificing the safeguards that the rule of law provides, to the expediency of handing enforcement powers to private actors. This is a key concern of the Manila Principles on Intermediary Liability, which demand that intermediaries not made subject to "collateral pressures to force changes in terms of service, to promote or enforce so-called 'voluntary' practices and to secure agreements in restraint of trade or in restraint of public dissemination of content."
Thankfully ICANN largely agrees, and Allen Grogan, Chief Contract Compliance Officer at ICANN has indicated his awareness of the Manila Principles as a broadly-accepted community standard that supports ICANN resisting demands for the enforcement of content disputes through its contractual relationships with registries and registrars.
On the other hand the Manila Principles would not prevent those who are hosting material that is clearly abusive, such as phishing websites, from voluntarily suspending those sites for violation of the provider's terms of service, provided that this is done transparently and that the customer is afforded a process of appeal. An example of such a process that is likely consistent with these criteria is the Anti-Phishing Working Group's Malicious Domain Suspension Process.
Formal Measures Also Pose a Threat
Even aside from voluntary practices, the formal measures that trademark interests have already established within ICANN to protect their interests pose a separate and ongoing threat to free expression rights online. These have taken a turn for the worse with the introduction of a stable of new generic top-level domains since last year, which were accompanied by a number of new rights to trademark owners.
Most notably, adding to the already-problematic UDRP (Uniform Domain Name Dispute Resolution Policy) that favors established trademark owners, a new URS (Uniform Rapid Suspension) process was introduced in 2013, further streamlining the process by which domains can be wrenched away from their owners on grounds of trademark infringement, and providing no penalties for complaints that are found to be wrongful.
Although the URS is already in place for hundreds of new domains, it is not yet in place for all of the legacy domains that were in place prior to 2014—yet by a subtle amendment to the renewal agreements for several of these registry operators' contracts, ICANN has extended the URS to those legacy domains. Earlier this year we wrote letters opposing this extension, but despite a majority of other comments being in agreement with us, we were overridden by the ICANN board last month, on the grounds that “inclusion of the URS was developed as part of the proposal in bilateral negotiations” with the registry operators.
The battle therefore moves to a new front, with an upcoming consultation that will review all of the rights protection mechanisms including those introduced for the new domains, as well as the legacy UDRP. We don't expect this consultation to be easy, but our participation (along with that of many others in ICANN's Non-Commercial Users Constituency) will be vital, since history tells that if public interest groups give an inch, the trademark lobbyists will take a mile.
More discouragingly still, when things don't go their way at ICANN, IP lobbyists can and do simply shop elsewhere. After all, it's not only multi-stakeholder processes that can be captured by IP interests, but purely governmental processes too. Thus a trademark-friendly UDRP-style dispute resolution process has been given some legal backing around the Pacific region through the captured Trans-Pacific Partnership.
Is it a losing battle? Frankly, digital rights advocacy often seems that way. But now and then, we score a brilliant victory for users that makes it all worthwhile. We won't be winning any such victories this week, but our return to ICANN lays the groundwork for success in the future.