At 07:41 PM 11/20/2015, Bruce Tonkin wrote:

I have asked the legal staff at ICANN to provide some examples.

Here is one that occurs to me though. The current new gTLD registry agreements in Specification 5 (http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-...) have a provision that restrict the ability of a registrant to register a country or territory name, or names relating to the International Olympic Committee; International Red Cross and Red Crescent Movement.

These are examples of content in domain names that have some restrictions. There are no technical or security reasons for such restrictions. The restrictions have been put in place on the basis of "public policy" advice from the GAC.

So let's take the two examples of restrictions that ICANN already imposes on registrants: (1) the obligation to provide accurate WHOIS information, and (2) restrictions on the registrants' ability to use certain strings in their domain names. ICANN can take down a domain that fails to comply with these requirements. Let's assume we agree that these are appropriate exercises of ICANN's power - that ICANN can legitimately impose restrictions/obligations "like these" on registrants. At the same time, I assume everyone also agrees that ICANN should NOT be permitted to impose restrictions/obligations/regulations on registrants that are not "like these" - that it can't use its power over the Amazon.com domain name to tell Amazon what kind of products and services it can or cannot offer, or how it has to deal with fraud complaints, or what privacy protections it needs to include in its operations; for things "like that." ICANN should NOT have the power to take down the domain (directly or indirectly, i.e. by requiring registrars to do the takedown for them). So the problem is how to reconcile these two positions - to articulate why the first set is OK but the second isn't. In may mind - and if this is too simple-minded, I apologize - the answer is: the former concerns the registrants' activities that directly affect the content of the DNS databases themselves, while the latter do not. The UDRP is a good example of how this line works, for me. ICANN does have the power to set up a process to resolve disputes over domain names, because the outcomes of those disputes necessarily and inherently affect the content of the DNS databases directly. ICANN does not have the power to set up a process to resolve disputes over consumer fraud complaints, because the outcomes of those disputes do not affect the content of the DNS databases. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************