At EFF, we keep a close watch on free speech "weak links" – the companies and institutions that are best positioned to censor online speech. One of the most prominent, and least understood, is the Internet Corporation for Assigned Names and Numbers (ICANN).
ICANN is a California-registered nonprofit public benefit corporation that has set policy for the global Domain Name System (DNS) since 1998. For most of its history, ICANN operated under contract from the United States National Telecommunications and Information Administration (NTIA), part of the Department of Commerce. Since 2016, it is formally independent of the U.S. government. Under a different name, the Internet Assigned Numbers Authority (IANA), ICANN also maintains a registry that contains the root DNS database and various other Internet protocol and number assignments.
The root DNS database defines the Internet's top-level domains (TLDs), including the "legacy generic" TLDs like .com, .net, and .org, the "new generics" like .movie, .auto, and .horse, and the country-code domains (ccTLDs) like .uk, .il, and .cn.
Second-level domain names, like the "eff" in eff.org, are not managed by ICANN, but by independent wholesale registries, who in turn deal with the public through retail-level registrars. ICANN has a contractual relationship with most of these registries and registrars, which gives ICANN a high degree of control over their operations, such as how they respond to disputes and law enforcement requests, and prohibiting them from allowing domains to be registered anonymously. Country code TLDs are different, as most countries in the world determine their own policies for the domains that they maintain underneath the ICANN-administered DNS root.
In theory, ICANN exercises its policy development functions through a bottom-up and transparent multi-stakeholder process that incorporates the perspectives of a wide range of affected interests—including governments, through a Governmental Advisory Committee (GAC), commercial and noncommercial Internet users, intellectual property interests, and geographic regions. In practice, ICANN's complex structure makes participation difficult and expensive, favoring large, wealthy incumbent corporations and groups. This has made for a process that is liable to capture by particular stakeholders. What's more, ICANN's paid staff have outsized influence on policy development, and sometimes bypass or ignore community input entirely.
ICANN's susceptibility to capture is evident in the excessive deference given to the interests of major trademark and copyright holders. Examples of this include:
The Uniform Dispute Resolution Policy (UDRP), which for most registrars provides a compulsory arbitration process for the resolution of disputes over domain names that are alleged to infringe trademark rights. This policy has been used to clamp down on legitimate parody and criticism in ways that domestic trademark law would not allow—yet the U.S. Trade Representative would like to see this policy extended to all country code TLDs around the world.
The Uniform Rapid Suspension System (URS), an even more rightsholder-friendly policy applicable to the newest generic top-level domains that ICANN began rolling out in 2013, which was one of a range of new conditions that ICANN attached to those domains. The URS gives even fewer due process rights to domain owners than the UDRP. After the community developed URS specifically for the new generic TLDs, ICANN staff began applying it to the legacy TLDs, including .org, that are used by millions of established websites.
Copyright lobbyists were also behind a proposal to limit the ability for domain name users to protect their personal information from public view. EFF and users from around the world have been speaking out against this proposal, which endangers the privacy and safety of small website owners. We also support the development of a new domain name registration database that embeds privacy by design.
The 2013 agreement that governs registrars' contractual relationship with ICANN, along with new agreements between ICANN and registries, go further than the previous versions in requiring them to take steps against those who "abuse" domain names. This new contractual language threatens to put registrars, registries, and ICANN itself in the role of regulating speech on the Internet, without due process or accountability. Entertainment industry lobbyists, pharmaceutical interests, law enforcement, and the US Trade Representative have seized on these provisions to demand that registrars suspend domain names based on accusations that the websites they point to contain illegal or other "bad" content—without a court order or meaningful legal process. Such a policy would resemble the one proposed and thoroughly rejected by the U.S. Congress in the infamous SOPA/PIPA bills.
These developments show a worrying trend towards using the domain name system, and the threat of domain name suspension, as a means of regulating speech on the Internet.
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