Domain industry blogger DomainIncite broke a story on November 16 that revealed efforts by the Werte Initiative in Germany to compel ICANN to initiate a takedown request for a website. The notion of a takedown request directed to the CEO of ICANN is perhaps not novel. However, in the wake of the coordinated takedown of Gab.com in the exact same week as this letter was apparently transmitted is worth of note by the domain industry.
By way of orientation, here is the original letter dated 10/23/18:
The site in question does not seem to have incitement to violence but rather catalogs information about various individuals and organizations. The content itself looks like “Free Speech”, a topic which is generating considerable controversy in the Digital Age. Whether or not ICANN advised the complainant informally, we now know that the formal response came nearly 3 weeks later, on November 13, from Göran Marby, CEO of ICANN:
What can we take away from this very current correspondence?
- There is apparently a continuing, coordinated and perhaps accelerating theme of censorship that extends beyond content that is of a potentially threatening nature as has been alleged in the context of Gab. Moreover, this effort is now global, not just the U.S., and it includes active lobbying of ICANN for takedown of specific domains.
- For now, ICANN is continuing to hold the position that they are not adjudicating about acceptable use of domains but are instead continuing to defer to registries and registrars as governed by their Terms of Service or as they may sovereignly rule by exception should they wish to do so.
- The website referenced in Werte’s letter remains online pending decisions from registry operator (Donuts), and registrar NameCheap (now part of Tucows) as to whether to comply with the take-down request. Given the recent November 13 response date from ICANN, we could expect to see governance action as soon as next week.
In the meantime, where does this recent news leave registrants in terms of reasonable expectations for Due Process? Well, we have some very recent case history for both Registries and Registrars.
Key Lesson #1: Registries can banish a domain without Due Process
On October 15, 2018, the domain name Incels.me was set to the inoperable state of Server Hold by the .ME registry, the country code TLD of Montenegro. The operators of the site reported in a press release that this happened without warning and also that there the registrant was not given an opportunity to cure. This effectively means that anyone who buys a .ME from now on should put an asterisk next to their domain to footnote the risk that while they own the domain, it can be arbitrarily taken out of use as and when the registry chooses to do so. This also adds registrar counter-party risk as the .ME registry does not explicitly require that a .ME registrant enter into an Acceptable Use agreement with the registry as part of the checkout process. By contrast, when any registrant purchases an ICANN-governed domain, they are required to explicitly accept the ICANN terms, such as you can see in this example for a .COM:
Looking ahead, it remains to be seen whether Donuts takes action, particularly if they are pressed sufficiently either by lobbying groups or by social media. From my reading, the case for a takedown seems weak given the absence of incitement to violence on this particular website as was alleged in the case of Gab. For such a weak case as this one, I would expect that a takedown action by Donuts would cause widespread action by registrants to steer clear of Donuts registries on a going forward basis, just as the price increases of up to 3000% in March 2017 by Uniregistry raised important questions about whether Uniregistry has sufficient governance in place to protect stakeholder rights.
Key Lesson #2: Registrars can banish a domain without Due Process
Whether or not the registrar, in this case, Tucows, takes action on this domain name remains to be seen. As of today, just a few days after the ICANN letter, the site is up. However, we know from the high profile takedown of Gab.com by Godaddy covered intensively by the media, that registrars can sovereignly take down any domain without warning, and can do so without giving the registrant an opportunity to cure as was the case with Gab. Epik is very familiar with this case having taken the position that Gab.com should have been eligible for Due Process, and opted to step in as registrar, as explained in this important blog post on why Epik accepted Gab.com. In addition to stating Epik’s position through the blog, Epik also took the rather unusual step of indeed setting an expectation among the Gab user with regards to ongoing self-governance as a precondition for sustainable use of Free Speech.
The Future of the Domain Name Industry is being determined now!
Whether or not there is a viable domain industry 10-20 years from now, or whether it is supplanted by an alternate addressing system is being determined by the actions the industry takes now. In the specific case of Gab.com, a $300,000 domain was being held in escrow on behalf of a registrant while Gab made payments on a domain. The de-platforming action taken by Godaddy on October 29 placed a high value domain at risk of permanent impairment, leaving the domain in limbo, registered in the name of the escrow agent. At the time of the take-down action, there were 4 counter-parties with claims on the domain: (1) the registrant, (2) the user of the domain who was making payments, (3) the escrow agent, and (4) the registrar. Talk about a messy takedown with collateral damage!
For now, I applaud ICANN for deflecting this latest request for censorship without Due Process. The drumbeat is getting louder for a global framework for governance and adjudication, similar to the UDRP process administered by WIPO. For adjudication of takedown requests, I believe the “high court” will need to be comprised of persons elected through a transparent democratic process rather than staffing the judiciary with appointees. Given ICANN’s ample $454 million in funds under management, it is not unreasonable to think that ICANN could easily fund a salaried high court comprised of democratically elected persons responsible for establishing and managing a global judiciary for governing takedown requests. This would protect registries and registrars from being crucified by public opinion for simply doing their jobs!
In the meantime, Registries and Registrars that choose to play fast and loose with Intellectual Property Rights can expect to see brand damage as individuals, organizations, and business owners begin to amplify a counterbalancing message relating to the impact of unilateral takedown operations. In the absence of incontrovertible demonstration of bad faith (e.g. blatant phishing operations where time-sensitive action may be imperative), it is reasonable for any domain registrant to expect (1) appropriate due process, (2) reasonable opportunity to remediate, and (3) orderly transition planning to another registrar in the event of continuing non-compliance with Terms of Service.