This week EFF is in Abu Dhabi to deliver a message to the Internet Corporation for Assigned Names and Numbers (ICANN), and to its contracted domain name registries and registrars—don't pick up the censor's pen. In our previous post in this series, we explained how domain name registrars are one of the free speech weak links that allow online speech to be censored without a court order. This occurs because many such registrars have terms of service that allow domain names to be suspended or cancelled for reasons as vague as their use for "morally objectionable activities."
But domain name registries can also be a free speech weak link. As we explained in the whitepaper that EFF and Public Knowledge released back in July, titled Which Internet registries offer the best protection for domain owners?, a registry is essentially a wholesaler, responsible for the management of an entire top-level domain. This may be one of the original generic top-level domains (gTLDs) such as .com, one of the "new gTLDs" to which additional ICANN policies apply, or a country-code domain (ccTLD), which is usually operated by a contractor to a national government.
Our whitepaper broke down these choices in detail, explaining how some of the weakest protection for free speech comes from those domain registries whose policies offer additional privileges to trademark or copyright holders, or to overseas speech regulators. Amongst the worst examples that we called out were Donuts and Radix, who have a side-deal with the Motion Picture Association of America (MPAA), bestowing it with a "Trusted Notifier" status that allows it to recommend domains for the registrars to suspend, without review by a court.
We also called out the Domain Name Association (DNA) for a Shadow Regulation-style proposal to construct a private copyright arbitration system for its member registries, which include the Public Interest Registry (PIR) responsible for .org domains, and to promote that system of private law as an industry standard. This proposal was developed behind closed doors, fueling our concerns about its capture by copyright holders. Although the DNA and PIR shelved these plans after EFF brought them to light, the DNA is still pushing a similar pharmaceutical industry-penned policy that would allow for the rapid suspension of domains used for online medicine sales, bypassing any legal process.
To give a final example, the new gTLDs contain an excessive level of protection for trademark holders when compared with most of the original gTLDs and ccTLDs. ICANN has imposed the requirement that all new gTLD registries utilize a secret Trademark Clearinghouse database to give priority access to brand owners when first offering their new domains for sale ("Sunrise Protection"), and to warn off registrants who register domains that might give rise to a trademark claim. Some registries have gone even further to offer brand owners additional protections that the ICANN community had rejected as requirements for the new gTLD program. An example is Donuts' DPML-Plus program that prevents the public from registering new domains that are merely typographically similar to a trademarked brand.
Two Approaches to Registries as Content Police
There are at least two approaches to this problem of registries acting as Internet content police. One of those, which we are pursuing with our call don't pick up the censor's pen, is simply to call on registries not to do it, unless they are compelled to do so by a court or by their contracts with ICANN. And some registries, to their credit, are doing the right thing and taking a principled stand. For example, in the wake of the cancellation of the Nazi website Daily Stormer's domain (which was a subject of our previous post), Byron Holland, CEO of Canadian ccTLD .ca registry CIRA, wrote:
I stand firm that the Internet must remain free and open, and taking actions to remove websites, regardless of how repellent the content, would go directly against this approach. A free and open Internet precludes my personal beliefs related to its content and I couldn't continue to lead CIRA, an organization committed to managing Canada's domain, if I didn't support this viewpoint for all Canadians, even those I disagree with. One individual should not have the power to make these decisions based on personal beliefs or as an emotional reaction. CIRA has policies in place to ensure this can't happen.
But the limitation of this approach is that in many cases ICANN's rules require registries to adopt censorious policies. Therefore we are also pursuing a second approach: working through ICANN's multi-stakeholder processes to change those rules, and make it harder for the domain name system to be used for censorship. EFF is a member of the ICANN working group devoted to the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs, and we are attending its meetings throughout this week.
One of the steps that we have taken this year is to make a formal proposal to eliminate the Sunrise Protection program that benefits top brand owners at the expense of other domain name users. EFF and other public interest advocates have also asked the working group to impose limits on registries' power to impose policies like DPML-Plus that upset the balance between the interests of trademark holders and domain name users that has already been reached through ICANN consensus policies.
Although ICANN's multi-stakeholder process has noble aims, in practice we have found the road to reforming ICANN's policies to be a slow and painful one. The Review of RPMs working group, in particular, lacks balance. It is stacked with trademark lawyers, who are able to draw out the process and to shout down and drown out opposing voices, making it difficult for our proposals to get a fair hearing. Even a Harvard trademark professor, who also advances a public interest perspective within the working group, has been the subject of smears and silencing tactics. Privacy experts have received similar treatment in the other working group that EFF participates in, on the rules that protect domain name users' privacy.
Even so, the battle to ensure that ICANN, its registrars, and its registries don't pick up the censor's pen is an important one, and one that we will persevere in. The domain name system, like a road system or an electricity grid, ought to be a value-neutral infrastructure for all to use. It should not be a shortcut around national courts and due process.