Trevor Little

This week at the ICANN meeting in Dublin, one hot button issue has been responsibility for combatting abuse and illegal activity online. The debate has been intense, with ICANN and registrars seeking to avoid a ‘content policing’ role. This week’s discussions have also highlighted a fracture between the IP community and registrar stakeholders.

The issue of content policing took centre stage at Monday’s opening ceremony, with ICANN CEO Fadi Chehade seeking to clarify that ICANN has no remit when it comes to content. One of the layers of the Internet he identified was the “economic and societal layer, where all the issues around content, human rights, cyber-security warfare” are located. On ICANN’s role, he stated: “Let me be clear. The community has spoken and it is important to underline that ICANN’s remit is not in the economic and societal layer – our remit is in the technical layers … A president of a country met me recently and said ‘here is a list of websites promoting terrorism - close them’. I told him that we have no remit of responsibility to determine which sites are promoting terrorism, which are good or bad pharmacies, which are committing crime, which are infringing copyright. There is a difference between ICANN being the co-ordinator of a technical layer and ICANN starting to make factual or legal determinations about which sites should be allowed or closed.”

Instead, he argued that the community should work together to meet its responsibilities to the ecosystem. However, a negotiated consensus on this issue looks some way off and yesterday, at a meeting between the ICANN board and registries and registrars, the calls for ICANN to stay out of the discussion on content policing intensified. A statement presented to the board argued: “Earlier today the Intellectual Property Constituency (IPC) asked the CEO and the ICANN board to have a greater role in content regulation. The IPC suggested that ICANN leverage its contractual compliance powers to require registries and registrars to adopt and implement so-called voluntary standards. The registries and registrars stakeholders groups strongly urge ICANN to not become involved in this debate. ICANN exercising its contractual powers as requested by the IPC would render such standards as anything but voluntary… The IPC is essentially seeking rights from ICANN that they have been unable to secure from legislators globally.”

Responding to this statement in the concurrent IPC meeting, Steven Metalitz, of Mitchell Silberberg & Knupp, stated: “The ball we need to keep our eye on is what ICANN is saying about this. While not encouraging, I’m not surprised by some of the responses. I’m less concerned with what the registrars are saying than what ICANN’s senior leadership is saying.”

At the heart of the debate is the 2013 RAA, which states that registrars should investigate abuse reports and respond appropriately. Earlier this month, Allen R Grogan, chief contract compliance officer at ICANN, posted a blog which highlighted registrar frustration at vague reports of abuse and outlined seven best practice standards for reporting abuse. On the flip side, it outlined what then constitutes an investigation and appropriate response. This includes notifying the registrant, considering and evaluating any formal determination by a court, regulatory authority or law enforcement agency regarding abuse or illegal activity, and communicating to the complainant (within a reasonable period of time) the registrar's position and what actions, if any, it proposes to take.

This morning Grogan convened a roundtable titled ‘The Role of Voluntary Standards in Combatting Abuse and Illegal Activity’, which heard from a number of stakeholders keen to encourage further collaboration. However, while examples of best practice were highlighted, the session ran out of time before discussion could be engaged in. The presented conclusion? That a successful outcome would take the form of a framework, negotiated and implemented outside of ICANN, for voluntary market-driven self-regulation. But how will that practically be approached? With ICANN unable to drive that framework, and the respective parties some way apart, an agreement on voluntary industry standards will be challenging to negotiate.

The picture is complicated by the often politicised environment within which ICANN policy is formulated. At yesterday’s IPC meeting, when discussion turned to proxy and privacy services, in particular discussion over whether an accreditation scheme should apply to non-registrar-affiliated service providers (including lawyers who register domains on behalf of their clients), one IPC member expressed frustration that the IPC voice was being side-lined: “It’s a good example of capture in the ICANN community. The privacy interests, the registrars and self-interested service providers, have captured this group and refuse to compromise. Stakeholders in the IP and business communities asked the group if we could work on the issues a little more and they said ‘absolutely not’. They wouldn’t even let us talk about it. The politics around some of these issues is so bad that we don’t even have a voice any more. It is seriously harming IP and business interests. We are getting steamrolled.”

It has to be said that, in a number of instances, registrars, brand owners and other organisations do collaborate effectively to fight online crime. However, at present, it isn’t a consistent picture and the prospect of an agreed framework seems even further away than it did at the start of this week’s ICANN meeting. 

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