ICA Tells ICANN That Using the DNS For Content Zoning Is Unsafe

Philip CorwinBlog

On April 5th ICA filed a comment letter with ICANN in regard to a proposal to establish a CyberSafety Constituency. While sharing concerns about pornography and other offensive and inappropriate content that children may be exposed when they access the Internet, we urged ICANN to reject the proposal. We believe that ICANN needs to do a better job of performing its narrow technical mission of managing the DNS and should not go down the path of becoming a legislature for the Internet, diverting time and resources to social policy issues that are best addressed by national legislatures and other intergovernmental organizations. In addition, the group proposing the new Constituency would bar all participation by commercial interests, and has the apparent aim of turning the DNS into a zoning system for content. Given the broad legal and cultural differences regarding what constitutes illegal and offensive content around the globe, and the very dangerous precedent that a mandatory technological censorship regime could set, we think this is a proposal that should not be implemented.

The text of the letter follows.

Attorneys at Law
1301 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-1701
Philip S. Corwin, Partner
By E-Mail
April 5, 2009    

Board of Directors
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601

Re: CyberSafety Constituency Petition and Charter

Dear Members of the ICANN Board:

This comment letter is submitted by the Internet Commerce Association (ICA) in regard to ICANN’s March 5th notice establishing a 30 day public consultation forum for comments on the proposed CyberSafety Constituency Petition and Charter (CCPC).

ICA is a not-for-profit trade association representing the direct search industry. Its membership is composed of domain name registrants that invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. The ICA is an International Member of ICANN’s Commercial and Business Constituency and presently has more than 120 members located in the United States and thirteen other nations.

Executive Summary

The ICA opposes the CCPC for the following reasons:

•    The CCPC proposes to address issues that bear no reasonable and appropriate relationship to ICANN’s narrow mission of DNS technical management.

•    The CCPC’s proposed member eligibility criteria are impermissibly exclusionary.

•    The CCPC petition appears to be opaque and misleading in regard to its proponents’ true aims.

•    The DNS should not become a content zoning and rating system, particularly to facilitate a particular social policy agenda


Social Policy Issue Constituencies Are Incompatible With ICANN’s Technical Mission

The threshold question is: Should ICANN permit this type of constituency to come into existence? We think not.

ICANN’s Mission is a limited one. As stated in its Bylaws –

Section 1. MISSION

The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to coordinate, at the overall level, the global Internet’s systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet’s unique identifier systems. In particular, ICANN:

1. Coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, which are

a. Domain names (forming a system referred to as "DNS");
b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and
c. Protocol port and parameter numbers.

2. Coordinates the operation and evolution of the DNS root name server system.

3. Coordinates policy development reasonably and appropriately related to these technical functions. (Emphasis added.)

The CCPC appears to have a focus on issues that are not reasonably and appropriately related to coordination of the technical functions of unique Internet identifiers and operation of DNS root servers. As stated in its Petition Charter letter at: http://gnso.icann.org/en/improvements/cyber-safety-petition-charter-letter-28feb09.pdf

The focus of the new constituency is Internet safety issues. I am concerned that, as Internet policies are developed at ICANN, the interests of families, children, consumers, victims of cybercrime, religions and cultures become better represented. For the new technology society, we need carefully to craft mechanisms involving law and industry that balance unfettered free speech and anonymity with some protections against exploitation of the most vulnerable, the ability to address and reduce criminal activity, and . . . the right of Internet users to have choices in the nature of their access.

This new constituency will be organized around both an interest in Internet security, and around a community of previously unrepresented users, including parents, children, women, cultural organizations, religions, and others.

The CSC Constituency may also provide home for law enforcement, consumer protection groups, and other concerned about Internet abuse.

Even a close reading of this description reveals few specifics as to what the mission of the CCPC is supposed to be. However, it seems to involve multiple matters, including general consumer protection, law enforcement, religious and cultural matters, free speech and privacy, and others that are more properly the province of governments, their agencies, and nongovernmental organizations other than ICANN. ICANN was not constituted to be and should not become the legislature of the Internet; that is, a general policymaking body dealing with multiple issues, many of which relate to particular content transmitted across the Internet. Yet the CCPC aims to facilitate better representation of specific categories of individuals and organizations as if ICANN were such a legislative body. Nor should ICANN sanction the propagation of narrowly focused issue groups within its structure, no matter how well intentioned their proponents may be, where those constituencies bear no direct relationship to the continued safe and stable operation of the DNS. Allowing constituencies based upon concerns that have no direct relationship to the technical management of the DNS could initiate a proliferation of political causes propagating within ICANN. This in turn could introduce interest group politics that could create deep fissures within ICANN and distract its attention and resources from the technical management issues that are its proper focus.

Further, up to now GNSO constituencies have been based upon contractual relationships with ICANN or specific commercial and civil society interests in the DNS that have been in place since ICANN’s inception. This is in keeping with the overarching original intent that ICANN be a private-sector led organization focused on DNS management. The CCPC, on the other hand, is proposed as an exclusively non-profit sector initiative based upon a particular social concern unrelated to DNS management.

CCPC’s Exclusionist Eligibility Criteria

Even if the CCPC had a proper focus, its proposed charter is not acceptable. CyberSafety, broadly defined, is an issue of major interest and concern for a broad array of parties already active within ICANN — including registries, registrars, ISPs, IP interests, and general business interests including domainers. But the proposed charter proposes to exclude all of them, stating –


5.0 Eligibility for Membership.
5.1 Organizations.
5.1.1 Eligible Organizations.
To be eligible to be a Member of the CSC, a Large or Small
Organization must be:

a. Either:

i. An organization incorporated or otherwise legally established as a noncommercial entity (in countries that have such a provision in their
corporation law); or
ii. An unincorporated organization, or organization operating in a country
without provisions for non-commercial incorporation, that operates on a
non-profit basis, primarily for non-commercial purposes, and has at least
ten (10) members; or


b. The exclusive user of at least one (1) domain name used primarily for noncommercial purposes; or

c. Engaged in activities that are primarily non-commercial and public service
oriented, including but not limited to, policy advocacy, educational, religious,
charitable, scientific, or artistic purposes.

5.1.2 Ineligible Organizations. An organization is not eligible to be a CSC Member if it:

a. Is a political organization whose primary purpose is to elect government


b. Exists as an association of, or for the benefit of, commercial entities (even if it is non-profit in form), such as industry trade associations;

c. Provides a service under a contract or memorandum of understanding with ICANN; or 

d. Is currently represented in ICANN through another Supporting Organization or GNSO Stakeholder Group. Organizations that participate in ICANN with the AtLarge Advisory Committee (ALAC) are not excluded by this criterion.

5.2 Individuals.
5.2.1 Eligible Individuals. To be eligible to be a Member of the CSC, an individual must:

a. Own at least one domain name for personal or family use of a predominantly
non-commercial nature;

b. Demonstrate substantial history, experience or knowledge about, or advocacy
for, policy development with respect to the Internet or the interests of a
substantial category of non-commercial Internet users, including but not limited
to families, children, religions, educational institutions, crime victims, spam
victims; or

c. Be employed by, or a member of, a large non-commercial public interest
organization, such as a university, college, or non-government organization that
qualifies as an Organization under this Charter and is not a Member Organization
of the CSC.

d. Identify on her/his membership application which one or more of the three (3)
above categories in this subsection apply.


5.2.2 Ineligible Individuals. An individual is not eligible to be a Member of the CSC if he/she:
a. Is currently represented in ICANN through another Supporting Organization or
GNSO Stakeholder Group. Individuals that participate in ALAC are not
excluded by this criterion;
b. Owns domain names for, or is concerned with domain name policy primarily
with regard to, business or commercial purposes, including without limitation,
investors in the domain name market, for-profit professionals, sole proprietors,
and professional consultants. An individual who falls into this subsection, but is
otherwise qualified to be a CSC Member, may be considered eligible by the
Membership Officer, subject to approval by the EC, upon finding substantial
evidence that such individual’s primary concern in participating in ICANN
processes is with respect to non-commercial public interest aspects of domain
name policy and that their membership would advance the mission of the CSC;
c. Is, based on the Membership Officer’s determination subject to appeal to the EC,
linked organizationally and financially to the Internet policy-related lobbying activities of commercial firms. (Emphasis added.)

The CCPC’s exclusionary membership criteria provide ample reason to reject its petition on that ground alone. We understand that the CCPC is proposed as a component of the new Non-Commercial Stakeholder Group (NCSG), but believe that if a new constituency of this type were to be created it must be open to broad commercial and noncommercial participation by all who share CyberSafety concerns, including the private sector that is supposed to lead ICANN. That inclusiveness would in turn help guarantee that the CCPC’s agenda and activities cannot be captured and controlled by a narrow interest with a predetermined social policy objective.

Hidden Agenda

Next, there is reasonable reason to be concerned that the CCPC’s proponents have been less than candid and transparent in describing their real agenda. A March 18th article appearing at http://www.theregister.co.uk/2009/03/18/mormons_icann/ alleges  that the CCPC petition is being backed by CP80.org and describes its aim as follows:

CP80.org wants all adult material banned from Port 80, the standard protocol port for the web, and confined to a new port. It also suggests that “ISPs could simply block all IP addresses originating from a non-compliant country”.

Indeed, the signatory to the CyberSafety Petition Charter letter is “Cheryl B. Preston, Edwin M. Thomas Professor of Law, Brigham Young University, CP80 Foundation (Emphasis added). This self-identification explicitly links the proponents of the CCPC to CP80.org and demands further inquiry.

The apparent linkage between the CCPC and CP80.org suggests that the proponents of the CCPC have been deliberately opaque as regards their true intent; this apparent omission must be addressed before any decision is made in regard to this proposal. Is the CCPC to be truly a CyberSafety Constituency, or is that amorphous label really a Trojan Horse for a DNS Zoning Constituency?

No decision on this petition should be made by ICANN’s Board until the constituency’s proponents have responded to the appearance that their overriding aim is to establish an ICANN-sanctioned body to advocate a segregation of certain content to a designated port. ICANN is devoted to transparency, and the community deserves full transparency on this matter. If the constituency’s proponents intend to utilize it for the pursuit of a specific social policy agenda that it is a critically important fact that should inform the entire ICANN community and the Board.

DNS Should Not Be A Content Zoning Tool

Finally, if the aim of the CCPC is to segregate certain content onto a specifically mandated port, should that be furthered? The answer is absolutely and positively no.

As opposed to the CCPC petition, the CP80.0rg website is completely transparent as regards its aims. A “training” slide show describing the “CP80 Internet Channel Initiative” implicitly references ICANN when it declares:

The governing bodies responsible for day-to-day management of the Internet itself are doing nothing to protect children from Internet pornography.

It then goes on to describe its “Technological Solution”:

…to organize and categorize all content on the Internet into two ranges of ports or Internet channels: The Community Ports and Open Ports…the Open Ports would be for all content considered “adult” and inappropriate for minors. (Emphasis added.)

CP80.org’s agenda, while mistaken, is certainly ambitious. It advocates reviewing and dividing every last bit of content traveling across the Internet into two categories, and its training instructional makes clear that the content to be banned from the Community Port includes not just the illegal category of “all pornographic content” but also content that is deemed “adult” or “inappropriate for minors”. One wonders how such Web 2.0 successes as YouTube, hosting a broad range of user-generated content – including some that might be judged inappropriate for minors – would fare under this proposal.

The segregation of content to the Open Port is intended to facilitate user blocking. Cp80.org makes clear that this goes beyond facilitating a consumer’s instructions to its ISP to block all Open Port content:

Part of the solution would include the user’s ability to block entire regions of IP addresses that represented countries not regulating the pornography served from computers in their country.(Emphasis added.)

In other words, CP80.org wants to make ICANN complicit in a scheme that would facilitate total blockage of all content of any type emanating from a particular nation, based upon whether its lawmaking bodies had enacted restrictions on pornography meeting its approval. ICANN should turn down this invitation.

The training instructional goes on to describe its agenda for ICANN itself:

ICANN and the five regional registrars could remove the domain names and IP addresses from any company found to violate child-protective laws with regard to pornography…The CP80 solution puts in place processes for these bodies to take action against offending pornographers…The CP80 initiative holds these bodies ultimately responsible for the enforcement of social policy and protecting children who use the Internet.

The ICA in no way defends the distribution of illegal pornography across the Internet. But this statement contains a clear admission against interest as regards the CCPC proposal – it is about “the enforcement of social policy” that is far removed from ICANN’s narrow mission of DNS technical management. It is also based upon a fundamental misunderstanding of the Internet, which the CP80.org instructional compares to “other media, such as print, television, radio, etc.” But the Internet is not a form of media but an advanced telecommunications system that facilitates the global distribution of media and all other forms of data. Law and cultural norms regarding acceptable and appropriate content differ widely among the nations of the world, and any actions that result in the seizure or removal of particular domain names and IP addresses should occur pursuant to police powers exercised under national laws and related enforcement processes.

Internet zoning and censorship technology regimes erected under the banner of protecting children can readily morph into mechanisms for the general suppression of free speech and information. To establish the use of the DNS as a content zoning mechanism would represent a large potential reversal of the undermining of political censorship and the ready access to information that has been fostered by the Internet. Further, to require “pornographic”, “adult”, and “inappropriate” content to be directed through a specific port requires establishing an overarching content judge to decide what material fits within these categories. This mandate would be extremely dangerous, as it would inevitably lead to self-censorship by those legitimate and lawful generators of mature content far removed from pornography wishing to avoid Open Port classification and potential ISP blocking. Also, as the Internet is a global medium and the subjective judgment as to what content is deemed unacceptable varies widely by country and culture, the end result of the CCPC initiative could well be lowest common denominator, politicized decisions that do maximum damage to the free flow of content and information across borders.

Finally, once the precedent is set that one type of content can be port-segregated to facilitate its blocking, the path is open for totalitarian regimes and others to bring pressure upon ICANN to acquiesce to their suggestions for technological “solutions” for the blocking of content that they deem dangerous to themselves or offensive to their view of correct social policy. This is a path that ICANN should not go down.


We hope that ICANN will find our comments useful as it considers the proposed CCPC.  The ICA supports reasonable efforts to assist parents in assuring that their children are not exposed to inappropriate content transmitted across the Internet. And we are participating in the Registration Abuse Policy Task Force that is considering means to block abuse of the DNS for the transmission of dangerous and illegal content, including child pornography.  However, this misguided initiative should either be rejected outright or returned to its proponents with a request for far greater specificity and candor as regards their true aims and the content classification methods that would be required to achieve them, as well as a detailed explanation of how such social policy enforcement relates to ICANN’s narrow technical mission.

Thank you for your consideration of our views in this matter.

Philip S. Corwin
Counsel, Internet Commerce Association