At ICANN’s 80th meeting, underway this week in Kigali, Rwanda, the board finally killed off an attempt by a few applicants for new Top Level Domains to use domain name registry contracts to regulate website content. Board director Becky Burr said that after consulting its lawyers, the ICANN board has decided that its bylaws do not allow it to enforce any contractual commitments that involve content regulation. As reported in Domain Incite, Burr said
“The board was looking at the legal issues there to determine whether under our bylaws we were permitted to accept and enforce Registry Voluntary Commitments (RVCs) related to the restriction of content… on Saturday at our board meeting the board has resolved that we can’t. We will not accept into the contracts the new registry commitments that involve the restriction of content.”
This is a sweet victory for ICANN’s civil society representatives in the Noncommercial Stakeholders Group. As we explained in two blogs in June 2023 and March 2024, RVCs would allow governments in the GAC (or the ICANN board, or any other influential party weighing in on TLD applications) to condition the approval of domains on a promise by registry applicants to regulate content on the domains they register. ICANN compliance would have to enforce those commitments. By requiring ICANN to enforce these “voluntary” content regulations, RVCs would make ICANN a content regulator, in clear violation of its fundamental bylaw Section 1.1.(c).
NCSG activists Kathy Kleiman and Milton Mueller, aided by NCUC Chair Ben Akinmoyeje, ran issue forums calling out this problem at ICANN 78 and 79. Between June 2023 and the present, the Noncommercials were the only organized constituency in ICANN mobilizing against this move. Registries and registrars, some of whom were not enthusiastic about the change, had been fairly silent about the issue. However, the contradiction with the ICANN bylaws was clear, and with the NCUC activists threatening to challenge any such move in the Independent Review Process, the board wisely decided to reject the proposal.
The board resolution defining the decision can be accessed here.
This is a good example of how the accountability reforms and mission limitations that accompanied the IANA transition are working.
This decision underscores the importance of maintaining an open and free internet, where content regulation is not dictated by private entities’ voluntary agreements. By refusing to enforce these commitments, ICANN reinforces its role in promoting a balanced approach to internet governance, protecting both the infrastructure of the internet and the fundamental rights of users to express themselves freely. This move is a positive step towards ensuring that the internet remains a space for diverse voices and ideas.