The Draft Bylaws on ICANN’s Mission: Some Important Questions

Lawyers have been busily working on taking the enhanced accountability and IANA transition proposals and revising the ICANN bylaw language to implement them. The first draft for public discussion was sent out Sunday, April 3.  The community now has only a week or so to review them and catch errors or problems.

This blog post reviews only Article 1, which defines ICANN’s mission, core values and commitments. Article 1 is very important for those of us seeking to limit ICANN’s power to control or censor the Internet, because it provides the basis for challenging and reversing actions that stray outside its mission.

For the most part, the Mission, Core Values and Commitments bylaws have been drafted to accurately reflect the accountability concerns of the community. But there are three major exceptions. One is the section on contract renewals [Section 1.1, (d) (ii) F], the other two are Appendices G1 and G2.

Contract Renewals

Section 1.1 (d) (ii) is a long list of things that are exempted from being challenged as outside ICANN’s mission. In legalese, these are things that

may not be challenged by any party in any proceeding against, or process involving, ICANN (including a request for reconsideration or an independent review process pursuant to Article 4) on the basis that such terms and conditions conflict with, or are in violation of, ICANN’s Mission or otherwise exceed the scope of ICANN’s authority or powers pursuant to these Bylaws

Subsections A – D basically grandfather existing contracts. But part F of that list exempts “any renewals of agreements described in subsections (A)-(D) pursuant to their terms and conditions for renewal” (emphasis added). In other words, current contracts can be extended indefinitely into the future, regardless of whether they contain provisions that exceed ICANN’s redefined, narrowly scoped mission. This is unacceptable.  It deviates from the agreement the CCWG had regarding grandfathering. The CCWG agreed to grandfather existing contracts so that there would be no uncertainty about their meaning or application. The idea was that existing agreements would not be disrupted or subject to challenge, but that anything in the future would be fully subject to the new mission limitations. By extending existing exceptions or ambiguities into the future via renewals, we are making the new mission limitations practically irrelevant. There is no reason to exempt renewals from the new mission limitations, because contracts will need to be re-negotiated when they are renewed anyway. Indeed, if one believes that all existing contracts are already within the mission limitations, the justification for creating this exemption falls apart completely.

Appendix G

The items in Appendix G are also carve-outs from the mission limitations. Appendix G1 refers to registrars, G2 to registries. They expressly list certain policies or actions as authorized and thus not challengeable under the mission limitations. Therefore, we need to be extremely careful about what is included there.

ICANN should be carefully restricted to developing policies regarding the registration of names, and not their use. If it can make policies regarding how domain names are used, it gets very close to being a content regulator of the internet. For example, it might refuse to allow the registration of a domain name, or take one away from a registrant, because the web site was accused of defamation, or pornography, or lèse majesté.

In G1, the bullet point on resolution of disputes contains confusing language that seems to exempt any and all ICANN policies regarding the USE of domain names from being challenged. It says that dispute resolution is limited to disputes “regarding the registration of domain names (as opposed to the use of such domain names)” but then adds “(but including where such policies take into account use of the domain names).” The meaning is unclear but we suspect it will be construed as a blanket exemption for imposing on registrars any policies regarding how domains are used, which could include content. I note that Appendix G2, which applies to registries, does not contain this language. We want to get rid of it in G1 also.

The bullet point on cross-ownership restrictions needs to make it clear that restrictions are allowed only insofar as cross ownership affects the core values of security, stability or competition. That is, I see no basis for giving ICANN or the community a blanket right to restrict cross-ownership of registries and registrars for any reason they want. Such restrictions should only be used if they are a means to the end of promoting or preserving ICANN’s core mission or core values, such as security, stability or competition. The best option would be to delete this part of the G1 and G2 and make all cross-ownership policies subject to a mission challenge. Cross ownership policies that demonstrably advance the core vales of competition, security, stability, etc. should have no trouble passing this test; cross-ownership limitations that do not clearly meet this test should be subject to challenge.

Most important, the bullet points on “reservation of registered names” in both G1 and G2 must be conditioned on respect for freedom of expression rights. Currently the provision exempts from challenge any policies about what

“may not be registered initially or … renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet.”

I have no trouble with allowing ICANN the authority to reserve names, but it is obvious that that power can be abused or over-extended. Its authority to do so, therefore, must be limited by concerns about the openness, freedom and innovation of the Internet. Along these lines, we need to clarify the term “intellectual property” to say “legally recognized intellectual property rights” Intellectual property claims and interests can often exceed their legal mandate; witness the dot sucks controversy. And we need to add a disclaimer to the name reservations clause making it clear that it does not exempt any and every reservation from any challenge.