[discuss] elephant in the room

Pranesh Prakash pranesh at cis-india.org
Mon Mar 17 22:34:15 UTC 2014

David Conrad <drc at virtualized.org> [2014-03-17 18:10:52]:
> On Mar 17, 2014, at 12:21 PM, Pranesh Prakash <pranesh at cis-india.org> wrote:
>>> The question is: without USG oversight, what would keep ICANN (a future rogue ICANN, not the friendly guys we know) from using the revocation of domain names (or registry contracts or registrar accreditations) to enforce a mandatory, adhesion contract that compels registrants (or even their users) to comply with global rules that are not supported by consensus, not related to protection of the sound, secure, resilient operation of the net, but instead related to some notion of what content is permissible, how people should behave online?
>> The question is: how has USG oversight prevented this?
> It was before my time at ICANN, but I'm told that DoC instituted explicit terms in the IANA functions contract to prohibit ICANN from doing something similar to what was proposed above, triggered by an (ill-advised but arguably good intentioned) attempt by ICANN at the time to force ccTLD administrators to enter into a three-way contract with ICANN and the ccTLD's government.

This is very interesting.  Could you elaborate on this?  My 
understanding was that there are many ccTLD administrators that have 
entered into a agreements (through letters of exchange, memoranda of 
understanding, 'sponsorship agreements', etc.) (though most of these are 
not three-way contracts, some seem to be).  So the DoC made it voluntary 
but not mandatory?  Or did the DoC say that ICANN couldn't do this 
without community consensus or some such?

Also, would you know of any blog posts / books / RFC that recount this 
particular episode in detail?

>> In fact, the USG has used the fact that Verisign falls under US jurisdiction to "seize" hundreds of domain names, making them inaccessible not only in the US but throughout the world.  Did Verisign or ICANN protest?
> Don't know about Verisign, but ICANN did post https://www.icann.org/en/about/staff/security/guidance-domain-seizures-07mar12-en.pdf and http://blog.icann.org/2013/01/the-value-of-assessing-collateral-damage-before-requesting-a-domain-seizure/.  To be honest, I'm personally not sure it would be appropriate for ICANN to protest domain takedowns pursuant to legal court orders.  One might argue that those court orders are inappropriate, but I'm not sure I'd see ICANN in a position to contest the application of national laws.

Thanks! That was very useful.

>> Verizon, instead of protesting this being made into law through COICA, asked for "a limit on the number of domain-name seizures the DOJ could ask for before ISPs are paid for the cost of compliance".
> If this bothers you, you might consider switching to AT&T, Sprint, T-Mobile, or other ISP in protest.

I brought up Verizon due to an error on my part: I didn't realize that 
David Johnson was David R. Johnson of David R. Johnson fame, and not one 
of the multiple David Johnsons on LinkedIn who are Verizon employees.

>> And under USG oversight ICANN has created a system where trademark owners get privileged access to some domain names regardless of the free speech considerations involved.
> Intellectual property concerns are astoundingly complicated and I'm personally unsure there is an easy answer that balances intellectual property rights and free speech (particularly with the understanding of the different standards of both of those around the world).
>> USG oversight has not been a panacea for domain name ills.  No system that will replace it will be without its own problems.
> Both are true, so I'm not sure what you're expecting.

I just wish it to be acknowledged that while moving to new terrains will 
be testing, the old system wasn't great either.  I think we both agree 
on this.

Pranesh Prakash
Policy Director, Centre for Internet and Society
T: +91 80 40926283 | W: http://cis-india.org
Access to Knowledge Fellow, Information Society Project, Yale Law School
M: +1 520 314 7147 | W: http://yaleisp.org
PGP ID: 0x1D5C5F07 | Twitter: https://twitter.com/pranesh_prakash

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