The other day I was in a meeting with a guy who used to work for a Registry that ran one of the world’s most famous top level domains. He told everyone in the room that, from time to time, he would receive referrals about particular domains whose names appeared to the complainant to be illegal or questionable in one way or other.
What the guy said next did not surprise me, because I’ve heard it before, but it reminded me, yet again, that some parts of the internet community clearly live in a parallel universe which rarely connects with the same one the rest of us are in.
We were told that if the complainant drew the Registry’s attention to a site that was connected with phishing activities it could be closed down pretty much immediately and without any difficulty on the grounds that it threatened the
security and stability of the internet
However
If all the site’s name did was advertise the availability of child pornography that made it solely a content question and it could not be closed down for that reason alone.
Planet Cyber v Planet Earth
My understanding is that this particular guy would try to find other reasons to allow him to pull the site but the fact that he had to resort to such subterfuges, while reflecting great credit on him, illuminates the gulf that can exist between Planet Cyber and Planet Earth. It also suggests a certain lack of transparency in the processes or hints at how they can be manipulated to achieve unstated ends.
The conversation I have just recounted brought to mind a similar one I had several years ago. It was at the IGF meeting in Sharm el Sheikh in 2009. I spoke to a member of ICANN’s Board – George Sadowsky. He is still a member. I put it to him that ICANN ought to have a rule which expressly forbids all Registries and Registrars from allowing domain names which appear to advertise or promote the availability of child abuse images. He was not in the least bit sympathetic. Echoing the above Mr Sadowsky said
That’s a content question. ICANN cannot involve itself in matters of that kind.
Or words to that effect.
Governments make their views clear
In April of this year at their meeting in Beijing ICANN’s Government Advisory Committee agreed the following resolution
Mitigating abusive activity— Registry operators will ensure that terms of use for registrants include prohibitions against the distribution of malware, operation of botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law.
Now you would imagine that prohibiting such activity also includes advertising the fact that you are doing it. But anyway the whole idea that a web site name is somehow outside the ambit of ICANN’s concerns is baloney on stilts. What, pray, is ICANN’s Uniform Dispute Resloution Policy about if it is not about names and their consequences? Here is the relevant section of ICANN’s UDRP rule.
(The complainant shall)
(ix) Describe, in accordance with the Policy, the grounds on which the complaint is made including, in particular,
(1) the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint; and
(3) why the domain name(s) should be considered as having been registered and being used in bad faith
Obviously this procedure is fundamentally about determining ownership rights but the words that make up the name and the uses to which they are put clearly count.
No one to speak to
Having got nowhere with Sadowsky I took the matter up with another Board member – one drawn from the section that is meant to represent a consumer interest. Again I drew a blank. I mean that literally. We had a conversation face to face in Sharm el Sheikh but I got no replies at all to any of my follow up emails. In the end I gave up. The thing about banging your head against a brick wall is it feels great when you stop doing it.
Please could someone in ICANN, or anywhere, tell me in which country in the world is it legal for anyone to advertise, promote, draw attention to the existence of, offer to supply or otherwise indicate where child abuse images might be found online? The UK is definitely not one of them. Here it is a criminal offence to do any of those things, and by the way it is irrelevant whether or not the person or web site in question actually has any child abuse images to pass on. The crime is committed merely by advertising the availability of such material and there is no doubt that a domain name is a form of advertisement.
Message from an Earthling
Wake up ICANN. Follow GAC’s Beijing resolution. Formulate a rule and apply it globally.
Will it be easy? Maybe, maybe not. I suspect it would not take an Einstein to construct something that could scan for a limited number of terms and pull them out of a line for inspection by human eyes. The present system seems to rely on private individuals discovering a name they think is illegal or objectionable and then reporting it. That is completely unacceptable. Everyone concerned should have clear instructions not to allow names of that sort to be deployed in the first place.
But first ICANN has to show that it wants to do this. I wait for the white smoke.
Desiderata 