'Amoral Registrars,' .Amazon Squabble, Privacy Among Hot Issues for ICANN Meeting
Domain name abuse, a tussle between Amazon and two national governments, and data protection/privacy were among key topics set for discussion at the ICANN meeting in Abu Dhabi, said ICANN and stakeholders. The meeting was to begin Saturday and run through Friday. A research paper by the Internet Governance Project (IGP) seeks to spur debate on how the internet body and the domain name system (DNS) should deal with content regulation, said Georgia Institute of Technology School of Public Policy researcher Brenden Kuerbis. The ICANN board is likely to act on a long-running dispute over Amazon's application for a .Amazon generic top-level domain (gTLD), Allen & Overy (London) intellectual property attorney David Stone posted on the firm's Digital Hub. And there will be talks on ICANN efforts to comply with new EU data protection rules effective next year.
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The IGP paper, "In Search of Amoral Registrars: Content Regulation and Domain Name Policy," issued Thursday, considers whether domain name registrars should have the right to cancel domains because they don't like the content of websites they support. IGP examined the terms of service of 74 ICANN-accredited registrars that manage more than 175 million domains, representing 90 percent of the market. It found registrar contracts with registrants take two different approaches to domain name governance. One, "registrar discretion, preserves the right of registrars, via morality-related and similar clauses, to take down domains according to their own opinions of the content they support." A second, the "rule of law" approach, seeks to give registrars the right to cancel or suspend a domain to comply with a court order, law enforcement agency or other legal requirement. IGP recommended the latter approach. It urged ICANN to clearly distinguish between illegal content, which isn't within the purview of domain name regulation, and abusive domains (such as for trademark infringement or deception) which are; and to amend its registrar agreements to protect registrants against arbitrary or discretionary take-downs of their domains based on the content of their sites.
The IGP views the paper "as an attempt to push the discourse away from classifying objectionable content as 'domain abuse,'" Kuerbis emailed. Numerous groups would like to leverage ICANN's contractual regime to further their own agendas on content regulation, such as those seeking to control copyright infringement or drug sales, he said. But "once certain content is regulated, where does it stop?" No one wants a global content regulator and ICANN's mission explicitly bars it from engaging in such activities, said Kuerbis, who co-authored the paper.
Corporate Interests Monitoring .Amazon
Amazon applied for the .Amazon gTLD in 2012, said the July 10 ICANN Independent Review Panel (IRP) final declaration. Brazil and Peru objected to the application in a Governmental Advisory Committee (GAC) "early warning" letter alleging granting exclusive rights to that specific gTLD to a private company would prevent its use for public interest purposes for the "protection, promotion and awareness raising on issues related to the Amazon biome." ICANN accepted the GAC advice in 2014 and halted the applications. The IRP said ICANN acted inconsistently with its bylaws and recommended it promptly revisit the applications to determine "whether there are, in fact, well-founded, merits-based public policy reasons for denying" Amazon's applications.
Some action on Amazon's applications is likely in Abu Dhabi, Stone wrote. The board might refer the matter back to the GAC for further advice -- which could potentially create further uncertainty for current and prospective gTLD applicants -- or the GAC could decide to issue new advice on its own initiative, he said. Alternatively, ICANN could decide the issue independent of the GAC, which would clarify ICANN's stance on the matter but could also challenge the role of governments in the application process, he said. Both sides "claim that either the decision to approve or reject the .AMAZON Applications could damage the multi-stakeholder governance model." This is the first time the GAC provided consensus advice on a gTLD application, the board rejected the application and the applicant went to an IRP proceedings, Stone emailed.
The corporate world is watching the case closely, said Jothan Frakes, a domain name consultant and co-founder of the Merge Show conference addressing technology and domain names. Despite "great strides" toward industry engagement and communications, "there is still a significant misunderstanding of ICANN's role" in corporate executive suites, he said. ICANN isn't significant on a daily basis to most corporate interests, but companies will hear the outcome of whether Amazon got or didn't get its corporate domain, he said. "It is the optics of the outcome that have the attention of corporate interests."
ICANN is also racing to decide how to comply with the EU general data protection regulation (GDPR), which takes effect in May. In an Oct. 18 blog post, Global Domains Division President Akram Atallah and Senior Vice President-Multistakeholder Strategy and Strategic Initiatives Theresa Swinehart updated ICANN's work on the issue.
Independent legal analysis so far has focused on the "potentially challenging areas" of existing requirements for registries and registrars to provide open, publicly available Whois services, the authors said. After reviewing the key concepts of the GDPR, the memo concludes the current regime "cannot remain unchanged," the memo said. Since the GDPR likely will affect Whois, "it could impact our ability to maintain a single global WHOIS system," which could affect either ICANN's contracts or its ability to enforce contractual compliance of its agreements using a single and consistent approach, the authors wrote. A cross-community session on GDPR implications for ICANN is set for Thursday, with further legal analyses to follow, they said.