ICANN and Internet governance, cont’d

September 4, 2014

Some comments and emails I’ve received make me think that I wasn’t terribly clear in my posting earlier this week about the Women on Web abortion services website, ICANN, and the whole “Internet governance” brouhaha.  [Speaking of which, Larry Downes has an interesting piece here on “why Internet governance should be left to the engineers,” focusing on the ongoing “Internet Governance Forum” meetings taking place in Turkey, in particular reference to the knotty problem of “network neutrality.”]  The great classicist Mary Beard was quoted as saying that when she writes something that many people misunderstand, she assumes that it is her writing, not her readers, at fault . . . a good attitude to cultivate, I think.

My point was not (as a surprising number of people seemed to think) that I wanted to see ICANN get into the law-making and law-enforcing business.  Far from it – the prospect is a terrible one, for many reasons, not least of which is that ICANN has not been constituted to represent the interests of the people (the vast majority of domain name registrants worldwide) it would thereby be regulating, and ICANN’s processes bear no relationship to anything one might regard as “due process.” There’s nothing inherently wrong with that – as long as ICANN sticks to the technical mission of domain name system management that it was constituted to address.  My point, however, was that there is a vacuum in the world of international legal enforcement at the moment, and nature (and politics) abhor a vacuum, and in a world in which enforcement of local law across national boundaries is so difficult, ICANN becomes a tempting target for those – primarily, though not exclusively, national governments – who would like to find a more efficient mechanism to enforce local ordinances on the Internet.

Here’s another example of the problem (thanks to Michael Palage for passing it along).  The domain name registrar EasyDNS, after learning that it had been sued as a result of a death allegedly due to the sale of a “controlled substance” from a website registered with EasyDNS, announced that it has changed its policy “after conversations with ICANN and the US Food and Drug Administration” regarding websites offering pharmaceutical products; henceforth, the EasyDNS Terms and Conditions now make clear, “any website/domain shipping drugs over the Internet must be able to produce a valid pharmacy license on demand for any country they are shipping to or face summary suspension/termination of services.”

I have no particular beef with a private company (like EasyDNS) taking a stand on this issue.  The issue becomes much more complicated, and much more troubling, if ICANN were to require all domain registrars to take similar steps – a step it has the power to take, and may be contemplating taking as part of its authorization of the new .PHARMACY top-level domain.  Do we want ICANN and the domain name registrars to be deciding what constitutes a lawful or an unlawful pharmacy operation?  What gives it – other than its position as a monopoly provider of doman name system services across the Internet – any legitimacy to make this kind of determination?  And what about Women on Web, where I began – since their whole reason for being is to break through oppressive local regulation of their services and profits, wouldn’t such a policy put them out of business?  And is that really the result we want?

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace. Views expressed are his own and should not be attributed to his affiliated institutions.
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