Is censorship something that only happens when state actors do it, or can private actors engage in it as well? That crucial Internet governance debate is taking place in two venues:

  1. The U.S. Supreme Court, which will rule on two state laws that try to regulate the way platforms moderate content, and
  2. ICANN, which is meeting in Puerto Rico and is debating the meaning of ICANN’s fundamental bylaw that says “ICANN shall not regulate content.”

There has been an enormous amount of commentary about the pending Supreme Court decision. Here is a good analysis of the topic from Stanford’s Daphne Keller. It’s clear that Section 230 and the freedom and flexibility of digital communications hangs in the balance, especially as the U.S. platforms are global in scope. Whatever happens, however, the decision is now entirely in the hands of the 9 Justices. Nothing we say here is going to affect that.

This blog, therefore, will concentrate on the ICANN case, which is still very much undetermined and will be discussed during and for months after ICANN 79 in Puerto Rico.[1]

Concerns about ICANN’s potential to regulate content on the Internet date back to its founding. The DNS root, which is controlled by ICANN subsidiary PTI (IANA), and for which ICANN makes binding policy through contracts, is a centralized point of control. Any website, email or act of communication on the Internet usually involves a domain name. ICANN’s central control of the DNS, therefore, could restrict or regulate content by leveraging the power to award top-level domains, take away top-level domains, or regulate the conduct of domain name registrants or registries.

This was the reason why the reform of ICANN in 2016, which paved the way for its independence from the U.S. government, modified its fundamental bylaws to clearly prohibit ICANN from any attempt to regulate content. The bylaw reads like this:

c) ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a).

This is ICANN first amendment. It is a clear prohibition on extending its centralized power over the award of domains to regulating services and content that happen to use domains. It contains a wordy, bizarre emendation, however. You can read the tortured prose, for which current ICANN Board member Becky Burr deserves the “credit,” at the end of this article. In essence, Burr was attempting to grandfather a bunch of existing registry contracts that already were attempts to regulate content. They were called Public Interest Commitments (PICs), and emerged from the chaos of ICANN’s 2012 round as attempts to make top level domain name applications acceptable to the Governmental Advisory Committee (GAC). Of course, the GAC was behind this problem. Historically, whether inside or outside ICANN, governments – including the United States and Europe – have proven time and again that they would like to leverage ICANN’s licensing of TLDs and registrars to regulate the content of websites.

This Burr in the saddle of the ICANN First Amendment also contains a statement that ICANN has the power to enforce its contracts but only “in the service of its mission.” This last bit emerged after a fierce debate in which defenders and opponents of PICs and other GAC-imposed content restrictions on registries tried to reconcile PICs with the clear prohibition on content regulation in the bylaws. Conclusion: ICANN can enforce its contracts, but only if such actions are not inconsistent with its mission limitations.

Today, as ICANN makes rules for a new round of TLD additions, the debate over PICs and the content mission limitation has been reincarnated. The ICANN Working Group making policy for this new round thinks it has come up with a way to make PICs great again. Now they are called “Registry Voluntary Commitments” (RVCs). A new TLD applicant can respond to concerns about the policies that would govern its registry by making special, customized commitments. The problem is that these would not just be registry policies. They would be put into the registry contract and enforced by ICANN.

So let’s imagine a scenario in which an applicant for the .CHINA TLD gets an objection from a government or two that the registry should not allow any domain registrations that post content that is anathema to the Chinese Communist Party, and cannot allow any registrants from Taiwan who advocate independence. The applicant fears that this objection will prevent their application from being approved. So the applicant offers a RVC promising that it will indeed vet all applicants for .CHINA domains and also monitor the websites and messages under the domain to make sure none of them contain objectionable content.

If the registry did this on its own accord, they would have the right to do so. As a private entity, any registry can adhere to any registration policies they like. But the GAC and certain members of the community do not trust that commitment. They want it to be put into the Registry contract and have it enforced by ICANN compliance. In other words, voluntary commitments are not so voluntary – they are contractual obligations. If those commitments help them win the award of the TLD, they should be enforced, the RVC advocates say.

And therein lies the root of the problem. ICANN’s new TLD processes are essentially beauty contests. Awards are made to applicants who don’t offend anyone or who promise to do what GAC, the board and members of the community want them to do. While there are some objective criteria for eligibility, ICANN’s process allows any stakeholder to mount political opposition to any application for any reason. So the advocates of RVCs see them as ways of buying off opposition. If I promise to do X, will you withdraw your objection?

Does this use of RVCs constitute leveraging DNS to regulate content? Obviously. But the advocates of RVCs, who are all about getting their application approved, not everyone’s free expression on the internet, adduce some clever reasons why it is not.

The argument favoring RVCs goes like this: The registry is making a voluntary commitment to run their registration policies in a certain way. In effect, it is contracting with ICANN to run the registry in a certain way, and it is the registry, not ICANN, that is engaged in content regulation. But isn’t ICANN enforcing that policy, and doesn’t that make it a partner in content regulation? Oh no, they say, ICANN itself will not actually be monitoring the content and making enforcement decisions. Instead, the registry will hire an “independent third party” to monitor the content. If this “independent third party” (which is selected and paid for entirely by the applicant) tells ICANN compliance that the registry is not following the terms of its RVC, then ICANN compliance can punish the malfeasor by taking the domain away. But it will not be regulating content, nope. It’s just a private, non-state actor enforcing a contractual agreement.

People making this argument like to draw a (bad) analogy to content moderation by social media companies. Social media companies regulate content, and so do newspapers and websites. But they do so as a private actor. They are exercising editorial discretion which is clearly protected by the First Amendment as an extension of a person’s or organization’s right to free expression. Both the registry and ICANN, they say, are private actors, so there is no censorship here.

Here’s why those arguments are bogus.

No government conditioned Google’s or YouTube’s access to internet resources on specific content moderation policies. Meta was not told that it could not get or buy Internet access unless it promised to moderate content in a certain way. No government forces a platform to comply with their stated content moderation policies. So the editorial freedom argument doesn’t work unless the TLDs’ commitments are truly voluntary, not contractually enforced. The Florida and Texas laws at issue in the Supreme court are anti-free speech precisely because they are trying to regulate the platforms’ content moderation policies – they are clear cases of government intervention into a private actor’s right to control what they publish and what they don’t publish.

But, they retort, ICANN is not a government. It, too, is a private actor. In this case, however, that doesn’t matter, because ICANN’s own fundamental bylaws prohibit it from using its control of domains to regulate content. ICANN is legally bound by that, and it can’t write or enforce contracts that break those bylaws.

The fatal flaw in these rationalizations is that RVCs are not “voluntary” when the award of a TLD is conditioned upon them. If ICANN’s board says, “adopt these content-related commitments, or you will not get the TLD,” it is using its power over DNS to impose “rules and restrictions” on the content in that domain. The commitment is not voluntary or contractual, it is a requirement the applicant must meet to get the domain – and to keep it, because noncompliance means taking the domain away. Anything that ties the award or possession of a TLD to content regulations is not legal under ICANN’s bylaws.

I want to reiterate IGP’s support for the ability of new gTLD registries (who exist in a highly competitive market) to propose, experiment with or offer any innovative or restrictive policies they like. Let them propose closed generics, no Communist content, all Communist content, no gay content, all gay content, etc. No one is forced to register there, no one is forced to see the content or use the domains. Let a thousand flowers bloom. If the content in those domains is illegal according to one or more governments’ laws (copyright infringement, CSAM, whatever), then governments can still go after the registry or the registrants – or block the domains in their jurisdiction. As private actors, top level domain registries that voluntarily adopt terms of service restricting content are just like social media companies or newspapers that refuse to publish pornography or registrars that refuse to serve Nazi, Communist or excessively “woke” websites. It is their policy, not ICANN’s.

But if ICANN’s TLD application process makes it necessary for the applicant to adopt certain content restrictions, else they do not get the domain, and if ICANN then uses its contractual compliance regime to enforce the restrictions attached to the award, on pain of having the domain taken away, then ICANN is fully responsible for those content regulations. That, we maintain, is not allowed under its fundamental bylaws. No outsourcing of monitoring to a so-called independent third party erases that fact.

If ICANN tries to skirt this fundamental bylaw, it is a very bad sign for its future. It may make some governments happy, but it undercuts the whole rationale for ICANN’s existence and betrays the commitments it made to the global Internet community. Opponents of this move have made it clear that any move away from these commitments will trigger a challenge under ICANN’s Independent Review Process.

ICANN 79 hosted a very extensive but rather one-sided discussion of this issue in San Juan March 4, 2024. NCUC’s Kathy Kleiman was the only person upholding the correct position, although it was clear that Becky Burr was troubled by many of the questions raised. You can see a recording of it here.

But there was a light at the end of the tunnel. Steve DelBianco, the Business Constituency representative on the panel and (inexplicably) a supporter of the contractual sleight of hand behind RVCs, issued a brilliant challenge to the ICANN board. Instead of awarding TLDs in the new round first, and finding out later whether the RVCs coming out of that process are illegal under its bylaws, the board should adopt a resolution clearly stating what its position is on the content regulation question. Are RVCs committing a registry to content regulation allowable under ICANN’s bylaws and can they be enforced by ICANN? Yes or No. If the board takes the wrong position, that resolution can then be challenged in the IRP, and the challenge can be resolved before any new TLDs are awarded. Likewise, if the Board resolution takes the correct position and bars any RVCs involving content regulation, then the GAC will not be encouraged to demand RVCs that violate those terms, and the new TLD process will run more smoothly.

[1] We note that the two issues are connected, however, in the person of Steve DelBianco, the director NetChoice, the plaintiff in the Supreme Court case about platform content moderation.

[2] Addendum: grandfathering clause of the mission limitation

(ii) Notwithstanding any provision of the Bylaws to the contrary, the terms and conditions of the documents listed in subsections (A) through (C) below, and ICANN’s performance of its obligations or duties thereunder, 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 (“Bylaws“) or ICANN’s Articles of Incorporation (“Articles of Incorporation“):

(A) (1) all registry agreements and registrar accreditation agreements between ICANN and registry operators or registrars in force on 1 October 2016 [1], including, in each case, any terms or conditions therein that are not contained in the underlying form of registry agreement and registrar accreditation agreement;

(2) any registry agreement or registrar accreditation agreement not encompassed by (1) above to the extent its terms do not vary materially from the form of registry agreement or registrar accreditation agreement that existed on 1 October 2016;

(B) any renewals of agreements described in subsection (A) pursuant to their terms and conditions for renewal; and

(C) ICANN’s Five-Year Strategic Plan and Five-Year Operating Plan existing on 10 March 2016.

(iii) Section 1.1(d)(ii) does not limit the ability of a party to any agreement described therein to challenge any provision of such agreement on any other basis, including the other party’s interpretation of the provision, in any proceeding or process involving ICANN.

(iv) ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission.