[PC-NCSG] Fwd: FW: NCSG Meeting with the Board : Topics (Constituency Day)

Mon Oct 24 00:15:59 EEST 2016

 Hi Avri,

I agree that we do not wish to see these become best practices,

 Agreed.

 but I do
not not see any reason why they should...be prohibited.

 I do.

 If agreements such as the Donuts - MPAA agreement expand and become the industry norm efforts of the bottom up multi-stakeholder process (BUMP) to create an open and free internet will be nullified. What good is it to prevent ICANN from engaging in content regulation if censorship of the most pernicious and secretive kind is imposed at the next level? 

 In her wonderful book Consent of the Networked  Rebecca McKinnon wrote of the power of social media companies to use terms of service agreements to control content through privatised "justice" systems.  ( https://consentofthenetworked.com ).  As Sarah Clayton and I wrote back in 2012, "As profit-driven corporations, social media companies have not proven to be particularly adept at the administration of online justice. Too often, companies have operated in their own best interests in preference to considering obligations towards their users ( In ?Governing Innovation and Expression: https://utushop.utu.fi/p/565-governing-innovation-and-expression/).   

 Thus, it is interesting to note EFF's take on the Donuts - MPAA deal (  ( https://www.eff.org/deeplinks/2016/02/mpaa-may-donuts-they-shouldnt-be-copyright-police ), one of these backdoor agreements Kathy writes of. Although Donuts gives some vague nod to some sort of perfunctory system of due process, EFF writes that in adjudicating matters "Donut's may have new business reasons for bowing to MPAA's demands, such as encouraging the major studios that make up MPAA to buy lucrative domains in the .movie space". Privatised justice often isn't when economic interests are in play, like they are here.  

 I'd encourage everyone to read he EFF link I've provided. It's short but comprehensive. And a bit scary.

 No matter what we do at ICANN if these agreements become the norm, the rights of registrants and users will be decided not by the bottom up multi-stakeholder process but rather by private agreements where due process, fair dealing and use, and free expression will be afterthoughts - if that.

 , or could, be prohibited.

 That's the hard part.

 It could be prohibited by contract should the ICANN community wish. Given the makeup of the community, I'm not sure that is realistic. At the best, perhaps we could get certain guarantees of due process for registrants  built into contracts.

 Right now, though, I believe our efforts should be directed at naming and shaming and shedding light on what is going on. I thank EFF for taking the lead in this matter. We need to support them and out those registers and registrars that support subverting ICANN processes and the BUMP through private agreement. Let's encourage our colleagues housed in the Contracted Parties House to make these agreements bad practice, rater than good practice. That should be our initial strategic goal.

What I think is most important is that any registrant know before
engaging a sld in one of these names, that this is the condition they
will be governed by.

 That same argument was used here in the United Kingdom as the private Cleanfeed system was implemented to censor the British internet. Cleanfeed is an internet filtering system, a secretive privatised censor operating in the background here in the U.K. At first, the scope of Cleanfeed was child pornography; it has since expanded to include other material, including  material that has allegedly violated I.P. laws.

 When it was implemented U.K. residents were told that Cleanfeed was voluntary, private sector run, and at first BT was the only company involved. Soon the other three major ISPs implemented the system and it has now spread to include virtually all UK ISPs, Andrews and Arnold ( http://www.aa.net.uk/broadband-home1.html ) being amongst the last holdouts.

 I agree, Avri, that is important that the Registrant be made aware of conditions that govern their access to the internet. Yet, that is not enough. We are giving monopoly powers to Registries to run their domains, monopoly control over some forms of expression. Disclosure is not sufficient where there may be no viable choice for the Registrant, particularly if there is no legitimate system in place to safeguard the right of the Registrant prior to take down. 

 In the meantime here's an article that highlights the public policy philosopher of Chris Dodd and the MPAA, Donuts new 'trusted notifier': https://sunlightfoundation.com/blog/2012/01/24/the-senates-dodd-problem/ .

(note SOI, I do have a small research contract I do for Donuts, but it
has nothing to do with this policy of theirs and I have no binding to
support their policy causes, I have never discussed this issue with Donuts.)

 Thanks for letting us know, Avri.

 It saddens me a bit because, as you know, Donuts are not healthy for anyone or anything including, judging from their more recent actions, the domain name system.

 Best,

 Ed

On 23-Oct-16 11:10, Wendy Seltzer wrote:
> Thanks for raising this, Kathy and Mitch. It is hugely important that
> these takedowns not become part of ICANN's common framework or "best
> practices" for registries or registrars.
>
> --Wendy
>
> On October 20, 2016 3:17:40 PM PDT, Kathy Kleiman
> <kathy at kathykleiman.com> wrote:
>> Hi Tapani,
>> Tx for the time until end of day. I would like to introduce another
>> important and timely question for our NCSG/Board meeting. It is one
>> that
>> come from Mitch Stoltz and myself. Mitch is a Senior Staff Attorney at
>> the Electronic Frontier Foundation. He works on cases where free speech
>>
>> and innovation collide with copyright and trademark law. For the first
>>
>> time, he will be joining us at an ICANN meeting in India!
>>
>> Currently, MItch is working on concerns about "shadow regulation."
>> Shadow regulation is the "secretive web of backroom agreements between
>> companies that seek to control our behavior online." (See Fair
>> Processes, Better Outcomes,
>> https://www.eff.org/deeplinks/2016/09/fair-processes-better-outcomes)
>>
>> We have just such a shadow regulation here in our gTLD Community.
>> Earlier this year, Donuts signed a deal with the MPAA to take down not
>> just content, /but entire domain names/, of copyright owners /accused/
>> by the MPAA of violating their copyrights. Although the concept, MPAA
>> as
>> a "trusted notifier" was taken from the US Digital Millennium Copyright
>>
>> Act, it was taken without any of its fairness, balance, protections and
>>
>> appeals. Basically, it's another "accuse you lose" scenario (for anyone
>>
>> who remembers the first version of Uniform Rapid Suspension, before we
>> fought for huge changes). And Donuts is marketing this agreement as a
>> "Best Practice." :-(
>>
>> Mitch can be with us for the NCSG-Board meeting and we propose the
>> following question set:
>> ==> Does the Board continue to agree with Fadi Chehade's statement
>> of Summer 2015 that ICANN does not policy content,
>> https://www.icann.org/news/blog/icann-is-not-the-internet-content-police.
>>
>> Does the Board share our concerns that arrangements like the
>> MPAA-Donuts
>> agreement are deeply inappropriate for the Domain Name System?
>>
>> Likely response:
>> I think we may find relief from the Board in our asking this question.
>> As you may have seen, the IPC leadership is banging on the Board to
>> enforce copyright laws through ICANN compliance (See ICANN
>> Correspondence). Steve Crocker has been writing back forcefully to say
>>
>> this is not within ICANN's scope and purview.
>>
>> I think our questions will a) support the effort of the ICANN Board to
>> push back on the IPC on its push, b) and share the horrors of the
>> Donuts-MPAA private agreement with those members of the Board who have
>> not yet heard about it.
>>
>> Best and tx,
>> Kathy
>>
>>
>>
>>
>> ------------------------------------------------------------------------
>>
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