The Electronic Frontier Foundation and the Domain Name Rights Coalition submit the following comments on the renewal of the .org Registry Agreement between ICANN and Public Interest Registry (PIR). As organizations that promote freedom of expression, oppose censorship, and pursue sound governance of the Internet, we have serious concerns about many of the proposed changes to the Agreement, particularly 1) the imposition of “Rights Protection Mechanisms” on the .org top-level domain; 2) permitting Public Interest Registry to develop new and open-ended “Rights Protection Mechanisms;” and 3) applying the improperly created “Public Interest Commitments” to the .org TLD in a manner that will permit PIR to regulate and censor Internet content. *1.**Trademark Claims and URS Are Unnecessary and Harmful in the .org TLD* The Trademark Claims Notices and Uniform Rapid Suspension (URS) were developed by the ICANN community specifically for the new generic top-level domains. They were developed to address the concerns of some trademark holders that the creation of many new gTLDs would lead to a wave of cybersquatting on domain names that could not be addressed by the existing Uniform Dispute Resolution Process (UDRP). That wave has largely failed to materialize, and the efficacy of Trademark Claims and URS is currently under review by the ICANN community. Procedurally, it is inappropriate for the ICANN organization to impose these mechanisms on .org, a legacy TLD that dates from the earliest days of the domain name system. Such a move must come, if at all, from the ICANN community after an evidence-based discussion. ICANN staff have presented no evidence of any need for Trademark Claims and URS in the .org TLD. In fact, the only rationale stated in the proposal is “to better conform with the base registry agreement.” https://www.icann.org/public-comments/org-renewal-2019-03-18-en. This is not a sufficient or even rational justification, given the significant differences between the .org TLD and the new gTLDs. The .org TLD, by long-established norm, is home to millions of nonprofit organizations of all kinds. The new gTLDs are less used, and are primarily marketed to commercial users. ICANN’s principles of multistakeholder evidence-based policymaking require that a change this significant come, if at all, from the community, not from bilateral discussion between ICANN staff and Public Interest Registry. Substantively, Trademark Claims and URS are inappropriate for the .org TLD. The Working Group for Review of all Rights Protection Mechanisms has uncovered substantial evidence that Trademark Claims Notices received by people who seek to register a domain name tend to deter registrations that would not infringe a trademark or otherwise invade the legitimate rights of a trademark holder. Claims Notices, which warn of the possibility of infringement, can be misleading for non-commercial users, because non-commercial use of a word or phrase is not trademark infringement as a matter of law. Because the .org TLD is used primarily by nonprofit organizations engaged in a variety of charitable, educational, religious, scientific, and public interest activities, their uses of a domain name are far more likely to be noncommercial, and thus outside any exclusive right of a trademark holder. Warning noncommercial users to avoid registering a domain name because of the possibility of trademark infringement is similar to warning residents of tropical climates to wear heavy coats because of the possibility of snowstorms. Both warnings, applied in the wrong context, would cause more harm than they prevent. ** *2.**Any New RPMs for .org Must Be Developed by the ICANN Community, Not Imposed Unilaterally By Public Interest Registry* ** The proposed new Registry Agreement would also allow Public Interest Registry “to develop additional rights protection mechanisms” unilaterally. Experience in the new gTLDs has shown this to be a dangerous proposition. So-called rights protection mechanisms are, at best, compromises between trademark holders’ interest in enforcement and the broader public’s right to register and use domain names as a vital avenue of free expression. As such, they implicate public and private rights that may not line up with a single registry operator’s priorities. Some new gTLD registry operators have used the unilateral ability to create new rights protection mechanisms to institute mechanisms that were considered and rejected by the ICANN community as insufficiently protective of free speech rights. For example, registry operator Donuts enforces “Domain Protected Marks List” and “DPML Plus” policies that allow trademark holders to withdraw a name from use by others across hundreds of gTLDs, thus interfering with millions of potential non-infringing uses of those names by others. ICANN should not permit Public Interest Registry to impose its judgment about the proper balance of public and private rights in domain names upon millions of non-profit organizations by fiat, bypassing community input. *3.**The Public Interest Commitments Impermissibly Invite Regulation of Internet Speech and Content* ** The so-called “Public Interest Commitments” are a set of requirements that were added to Registry Agreements for the new top-level domains. They were created and imposed by ICANN staff without community input. They purport to impose a general obligation on registries and registrars to regulate the contents of websites and Internet applications to prevent “copyright infringement,” “deceptive practices,”or other “activity contrary to applicable law,” and to “provid[e] consequences for such activities including suspension of the domain name.” These provisions, in effect, repurpose the domain name system from a global system of unique identifiers for information resources to a global regulator of speech in which Internet users around the world must conform to a vague, inconsistent set of national laws, interpreted and enforced by numerous private corporations, or risk losing their domain names. And they run directly counter to ICANN’s mission statement, which states that “ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet's unique identifiers or the content that such services carry or provide.” https://www.icann.org/resources/pages/governance/bylaws-en/#article1. The mandatory and voluntary “Public Interest Commitments” are already being used to justify registry-imposed censorship of Internet content in the new gTLDs. They are utterly inappropriate for the legacy TLDs, especially .org, and the special circumstances of millions of domain names registered to organizations dedicated to free expression and engaged in lawful critique, including critique of companies and their products, services and practices. ** *4.**Deletions to .Org Renewal Agreements* Accordingly, and in direct support of the issues and concerns expressed above, EFF and DNRC call for the deletion of the following provisions of the .org renewal agreement.We note that none of the contractual terms listed below were ever discussed or intended to be applied to legacy TLDs when reviewed and negotiated in 2009 and 2010.Inclusion of these contractual terms, without GNSO discussion, review and agreement of their application to legacy TLDs in general and .org in particular would be disastrous to noncommercial speech online and to the multistakeholder process. *_Deletions necessary to address the concerns raised above: _* *Section 2.8*: Protection of Legal Rights of Third Parties *Section 2.17*: Additional Public Interest Commitments *Specification 7: *Minimum Requirements for Rights Protection Mechanisms *Specification 11*: Public Interest Commitments *Any other *oral or written agreements between ICANN and Public Interest Registry that allow rights protection mechanisms outside of those explicitly approved by the GNSO Council and ICANN Board for legacy TLDs, such as UDRP