ICANN and the New Top-Level Domains, panel 2

ICANN and the New Top-Level Domains
“Walled Gardens:” Should gTLDs Become Private Platforms?
Becky Burr, ICANN Board & Neustar: We used to talk about
.kids as a walled garden/moderated content for kids, a safe space. [Based on
what we know about who abuses kids, it’s not surprising that it hasn’t worked
all that well.] Others are more general—open to anyone to register, but with
rules for registrants. Whether that’s good or bad has to be more granular.
Sarah Deutsch, ICANN Board: To me, depends on what the garden
is: if it doesn’t allow other people in and there’s bad activity, such as
anticompetitive activity, that wouldn’t be good. Other spaces might just be
regulated. That could be a walled garden. 
Worries: where someone gets exclusive rights to run a generic term as
one competitor in the market.  [Example
from Aufderheide: L’Oreal owning .beauty]
Kathy Kleiman, Center for Information Technology, Princeton
University: When we started, gTLDs were to be managed in the public interest. We
looked for abuse of the structure (malware, botnets) and not bad content (where
laws differ worldwide and where it wasn’t our job to judge content). Country
rejected SOPA/PIPA domain name blocking. We protected due process. But on the way
to new gTLDs, ICANN decided to open up registry agreements to voluntary
commitments.  Registry applicants slid a
lot of other stuff into those agreements, which ICANN allowed.  Donuts, w/hundreds of TLDs, created a policy
allowing it to block registrations based on agreements w/TM owners, a policy
that had been rejected at the ICANN level. 
Judge © and TM claims.  Minds +
Machines promises to “constructively work with law enforcement to address reported
cases of abuse”—law enforcement asks for a lot of things based on mere
allegations, and no due process is mentioned. 
Yet ICANN has a limited mandate.
Nonetheless, ICANN apparently embraced voluntary content
regulation in its new bylaws.  Question
for the panel: what’s left of the multistakeholder model and what is ICANN’s
continuing role in protecting the open structure of the internet?
Jeff Neuman, Com Laude/Valideus: The ultimate end users are also
of concern. (1) registries w/restrictions—only allow certain entities in. (2)
closed generics: taking a generic word and using it w/in own organization/its
affiliates. (3) ability to take down names that violate your policies.  All 3 of these can be and are good things.
Organizations are facing increasing scrutiny for the content delivered through
their platforms—FB, domain name registry [those actually have very different
levels of control of individual posts/incentives to take users’ interests into
account/levels of public exposure].  Have
to think of it from their perspective. Wish it was as easy as saying we don’t
regulate content. But there’s child porn, imminent threats of harm,
counterfeiting and infringing movies. When things are that obvious, and you
know that you will be criticized for allowing that activity through your
platform, then the choice isn’t as simple as not looking at content.  He’s seen actual threats of car bombings [so
he would have gotten rid of FB if he ran .com?] and he’d rather take that down
than not do so.
Mitch Stoltz, EFF: Not super concerned with defining “walled
garden.”  As a concept it’s useful to
talk about gatekeepers of speech on the internet, of which there are many
varieties. FB has an incredible amount of power over who gets to speak and who
will hear it. It’s scary that registries can make your entire website
disappear; registry is a private company w/its own business motivations
exercising arbitrary power over speech. 
It is important that different registries can do it differently–.com
historically doesn’t have policies like those the new ones are adopting.  Cloudflare has immense power.  Content industry wants to leverage that to
make it police for copyright if it polices for child porn/foreign pharmacies.
But it’s easy to see where it goes from there. 
If we built a smart highway would we want it to scan to make sure you
were driving in an ok way? [Note that China’s social credit system is doing exactly
that—you won’t be able to travel easily unless you have good social credit.]
Burr: There are enormous numbers of issues here.  ICANN shouldn’t have taken on the burden of
trying to figure out compliance w/all these public interest commitments, which
applicants made in order to get a competitive advantage.  Now that people used those to get a competitive
advantage, holding them unenforceable is unattractive too. We grandfathered the
existing commitments into the new bylaws in order to kick the can down the road
(outsourcing compliance which isn’t great either).   
If there are lots of different registries then it might not
be a big problem if they have varying rules.
Example of problem: something weird is going on in a set of
domains. Sites selling every dog breed in the world to US consumers, shipping
the puppies sight unseen. She didn’t buy a dog so she can’t say she was ripped
off, but there was no question that this was a scam & we took them down. It’s
critical that people be able to exercise that kind of judgment where consumer
harms are involved. There’s no state action & scammers can go register on
some other site; we aren’t going to protect it. She doesn’t think that’s a
matter of free speech.
Deutsch: all sorts of third party sites have provisions
about copyright & TM etc; DMCA gives you obligations for takedown.  It’s not that surprising for stuff to be in a
contract. There is also more pressure on platforms, ISPs, even possibly
registrars & registries to take more fiduciary responsibilities for what’s
on their sites. But shadow regulation also tends to grow.
Neuman: .biz had a problem with being a known source of
spam; made it hard for legit clients to get emails through.  Created an anti-abuse policy for acting on
malware, phishing, spam: first policy in the big registries. Registrars would
have 12 hours to take the domain down or we’d do it. That made us pariahs in
the community. But there wasn’t a slippery slope. In 2005, took down 32,000
domains with zero complaints from the registrants.  We’ve taken down 100,000s of domains. Took
.biz from most abusive to one of the safest TLDs. Not all slippery slopes have to
be slid down.
Stoltz: There are issues of norms & due process. Should
the power company combat fraud by accepting complaints about fraud & cut
off a business’s electricity if it finds the complaint persuasive? That sounds
bizarre. Power is used in the commission of all sorts of crimes, but it’s still
not their role to police that.  There is
space for competition among policies, but that only works if that’s evident to
consumers—if people know what they’re buying, and if there is actual competition.  Donuts owns 1 of 6 of the new domains, and
they use policy rejected by ICANN.
Kleiman: the key move here is ICANN’s abandonment of the
principle that it was about regulating infrastructure and move into regulating
content.  The attempt here is not just to
get the regulations into the agreements but to get to ICANN to enforce content
regulations.
Q: if an applicant made promises & got the domain b/c of
the promises, it’s sensible for ICANN to be one of the entities that can hold
them to its promise.  If Goodyear got
.tires and biased the search within that gTLDs—that would be ok if it’s
disclosed, but maybe ICANN should stop it from happening. FTC said it would
watch and if there’s deceptive trade practices the US would enforce against it.
That’s how it happened at ICANN; there’s no blanket prohibition on a competitor
running a closed generic and we deal with problems after the fact; would it be
better to have it otherwise?
Karanicolas: Infrastructure layer makes a difference: there’s
a difference b/t Twitter kicking Milo off and Comcast installing a filter to
prevent anyone on their network from seeing Milo’s content. But where do
registries fall on that spectrum?  [Right,
one of the distinctions to be made here is the puppy mill v. Craigslist, both
of which might be offering scams.  Do we
have any way of distinguishing that in order to protect Craigslist against a
significant chilling effect?]
Q: We need to know what the rules are about people being
kicked off. If there are pre-agreements w/certain TM owners, is the
decisionmaker biased?  Is there any way
to appeal? If you’re making government-like decisions then there should be
government-like protective structures for decisions.
Deutsch: .bible—applicant wanted to exclude nonChristians
and anybody of which it didn’t approve, and to make UDRP panelists sign a
statement of faith. This is a real world example of what happens in a closed
generic space and we need to be mindful of that.
Neuman: .disaster could easily be exploited for fraud.  But we need to look out for end users more
than a right to register any name that you want. A closed generic could be a
lot more useful for end users than what’s in the market now. If Amazon had
.book and could give an official page to any author, is that better or worse
than letting anyone register and maybe never getting .book into widespread use.
Burr: doesn’t like the power company metaphor b/c power is a
utility; I don’t have a choice about where I get power from. Registries/registrars
doesn’t fit into that paradigm.  DMCA
issues: registries/registrars can’t simply take down one piece of allegedly
infringing content: that makes them fit poorly into the DMCA framework.  Issues w/r/t copyright & TM are not the
same as issues about what’s not legal in Thailand (criticizing the royal
family) or consumer fraud.  [Which is
very telling insofar as Donuts and similar agreements are about copyright and
TM, and side agreements w/© and TM owners are what have brought us here.  Donuts didn’t make any agreements with the
gov’t of Thailand, or with the FTC or even the BBB.]

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