Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation

Abstract

This article maps ICANN’s ambivalent drift into online content regulation through its contractual facilitation of a “trusted notifier” copyright enforcement program between the Motion Picture Association of America (MPAA) and two registry operators for new gTLDs, Seattle-based Donuts and Abu Dhabi-based Radix. The trusted notifier program is among a growing number of privately negotiated voluntary enforcement agreements between corporate copyright holders and Internet intermediaries. It is the first of its kind, however, to rely on stewards of the Internet’s core technical functions. And that makes it different from the others in a way that implicates Internet infrastructure and governance.

After discussing ICANN’s history, mission, and circumscribed role in the resolution of disputes over trademarks in domain names, this article reckons both descriptively and normatively with the fact that registry operators are now acting — without precedent but with ICANN’s blessing — as private copyright enforcers. No matter how vehemently ICANN officials insist that they are minding the limits of their mission, the truth of the matter is that ICANN knowingly created a contractual architecture for the new gTLDs that supports a program of private, DNS-based content regulation on behalf of copyright holders and, potentially, other “trusted” parties. Moreover, in creating that architecture, ICANN did nothing to secure any procedural protections or uniform substantive standards for domain name registrants who find themselves subject to this new form of DNS regulation. That omission should be a red flag for those who worry that ICANN’s newly minted independence from the U.S. government will make its internal governance more susceptible to capture by powerful commercial and governmental interests.

For now, “trusted notifier” takedowns in the DNS are limited; however, demands on intermediaries for stronger online content regulation across the board are only growing. It is easy to imagine programs like the MPAA’s expanding in the near future to serve a much wider universe of notifiers — including private and governmental actors targeting what they will identify as fake news, hate speech, and terrorist propaganda. Lack of transparency and due process in such programs will make them inherently vulnerable to inconsistency, mistake, and abuse and could transform the DNS into a potent tool for suppressing disfavored speech.

Keywords: ICANN, IANA, UDRP, domain names, copyrigtht, trademark, piracy, counterfeiting, cybersquatting, notice-and-takedown