ICANN, Regulators and Stopping Illegal Activity Online, Who has the Final say?

There has been a compelling report in the Wall Street Journal (WSJ) the other day about ICANN and illegal online pharmacies as a result of a six-month investigation, the reporter, Jeff Elder, calls into question ICANN’s effectiveness in investigating complaints of suspected illegal activity on domain names it has a contractual relationship with.

Jeff Elder reported that

In July, the FDA teamed with Interpol and dozens of countries to try to shut down more than 1,300 websites suspected of selling drugs without a prescription. Officials sent a list of all the websites, carrying names such as buyoxycontinonline.com and approvedonlinepharmacy.net, to the Chinese company that registered them.

The company replied with a request for a court order and then sent a terse follow-up email: “It is not possible for us to take action.”

In frustration, officials turned to the Internet’s central administrator, an organization called the Internet Corp. for Assigned Names and Numbers, or Icann. Its contract with the registrar, BizCN.com, requires the company to investigate reports of illegal behavior.

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In his followup article “Stopping Illegal Activity Online – It’s More Complicated Than It Seems”, Byron Holland says

The article raises an interesting question — is it the responsibility of an organization like ICANN, or even a TLD registry like CIRA, to police content online? The case referenced in the WSJ article is one of a legitimate public health concern. However, similar requests could be made to ICANN regarding other content. Pornography is illegal in many parts of the world, as is content that is critical of certain governments. It’s conceivable that law enforcement agencies would request that content be taken down, just as Interpol and the FDA requested the online pharmacies be removed from the Internet.

Do we really want ICANN to take on the role of arbiter of the online world? I certainly don’t. The Internet is the greatest vehicle for free speech and creativity since the invention of the printing press; a gatekeeper to the Internet would unravel the tremendous benefits it has brought us over the past 20 years.

At CIRA, and at many other top-level domain registries around the world, we consider ourselves to be content agnostic. Our criteria for taking a website down are very narrow — we will only do so in three circumstances: if the website poses harm to children, is damaging to the domain name system, or if we are served a court order by law enforcement. We do not monitor .CA websites. We do, however, perform regular checks to ensure registrants are in compliance with the terms of the agreement they have with us. And, if we were to receive a court order demanding we take down a website that is part of an illegal activity, we would comply, just as we have done in the past.

Elder also draws the line between ICANN’s seeming inability to keep illegal pharmacies off the Web and the Internet Assigned Numbers Authority (IANA) oversight transition. Without transparency in addressing requests like the ones referenced in the article, how can ICANN be trusted without sufficient oversight, like that of the National Telecommunication and Information Administration (NTIA)? This is a bit of a stretch. As a party involved in both the IANA oversight transition and ICANN accountability discussions, if anything, ICANN will be held to a greater degree of accountability once the NTIA backs away from its current role.

The fact that the WSJ is critical of ICANN comes as no surprize. Articles and blogs from the newspaper have had a noticeable anti-ICANN bent for a few years now (and, I might add, have been ill-informed about these issues). An article from March 2014 about NTIA’s announcement stated, “Icann [sic] isn’t even ready to regulate itself.” A more recent article references ICANN’s plans to “hand control [of the Internet] over to governments,” and called on Congress to block the IANA oversight transition: “If Mr. Obama persists, Congress should block his plan with a simple message: The open Internet is too valuable to surrender.”

I’ve blogged about the media’s uninformed (and I would argue damaging) coverage of the IANA oversight transition, but in my opinion, the WSJ coverage reaches new levels of shortsightedness. It reminds me of a company making desperate efforts to bump up quarterly earnings at the expense of long-term, sustainable growth. By ignoring the larger issues the globalization of the IANA functions will address, the WSJ draws attention away from the important work we are doing to ensure a sustainable free and open Internet for all of the world’s citizens. Sadly, there are all too many people and organizations that will use this as fodder for their own political gain.

As the Internet continues to become a more ubiquitous part of the social and economic fabric of the globe’s citizens, tensions like the ones in Elder’s article will become more common. We are entering uncharted territory. Never before have all of the world’s cultures been so linked together, and issues that stem from fundamental political and philosophical differences, like pornography, free speech or differences in legal regimes will become more common and pronounced. However, we must resist the temptation to address these issues with short-term solutions instead of focusing on the long game.

Read another report here: FDA Is Angry That ICANN Won’t Just Censor Websites On Its Say So