Question: There has been discussion about whether or not a registrar has the right to terminate a domain registration because of offensive or illegal content. What are your views on this, and do you feel the same holds true for ICANN? What about the proposed .kids TLD which would restrict content?

Nominee Replies

Donald Langenberg - posted on 2000-10-01 19:55:25 Illegal is one thing, offensive is quite another. Arguments about what's offensive lead immediately to the question, offensive to whom? Such arguments are endemic in the perpetual debate about the meaning and application of the constitutional guarantee of free speech. Over the past couple of centuries we have learned that that guarantee is not absolute (e.g., you can't shout fire! in a crowded theater) and that it has some limitations that are established in the courts from time to time. I don't see the matter of Internet content as lying outside the ambit of that debate. Barbara Simons - posted on 2000-10-01 08:37:15 Requiring registrars to police content is a bad idea. It can lead to censorship and harassment. For example, suppose I were a registrar and I received notification that a particular site contains pornographic material. Should I simply take down that site? Should I first investigate and decide whether or not I consider it to be pornographic? Or suppose I am told that the site contains copyrighted material that was posted without permission. The registrar should not be deciding whether or not fair use applies to the material posted on the web site. However, if there is a contract between the registrar and registrants and if a registrant has broken that contract, then the registrar should have the right to terminate the registration. In any case, ICANN should not be involved. Lyman Chapin - posted on 2000-09-30 14:18:47 Courts decide what is illegal content, not registrars or ICANN. I can imagine a contract between a registrar and a registrant including a no offensive content clause, but I'm not sure I like the idea of registrars deciding what is or is not offensive, and I don't think it's a good idea to create TLDs with content restrictions. Karl Auerbach - posted on 2000-09-30 12:39:15 Before I answer let me remind you that I believe that ICANN should not be in the business of placing content restrictions (i.e. charters) on TLDs and that ICANN itself should not look at how a TLD is used. It's my position that the policy under which TLDs are run should be up to the registrar. And that those who registrar in that TLD are entering into a knowing agreement and acceptance of those policies. In other words, there ought to be a clear contract between the domain registrant and the registrar/registry that spells out the uses of that SLD in that TLD. If that contract, knowingly entered into by the registrant, imposes content restrictions I see no reason for ICANN to step in. Similarly, if the contract places no restrictions on use of the SLD then the registrant has the full power of contract law backing them them should the registrar/registry try to amend the terms and unilaterally impose new conditions on use. Emerson Tiller, J.D., Ph.D. - posted on 2000-09-30 11:56:29 ICANN does not contract with individual domain name owners, but individual registrars do. Registrars, if granted chartered TLD's, may be able to set the terms of usage and exclude offensive content. Because it is a contract, the domain registrant would have a choice to use that chartered TLD or not (knowing up front the terms and conditions on content). I think the rules should be different for open/unchartered TLDs. The registrar should not engage in any efforts to exclude material unless ordered to do so by a court. In any case, ICANN should generally refrain from terminating domain names based on content, unless a court finds the site in violation of national laws. In terms of illegal content, registrars may have a legal obligation under national laws to terminate the site. Lawrence Lessig - posted on 2000-09-30 00:32:14 If there were enough gTLDs to be competitive, then I don't believe ICANN has any role in regulating the price of the service a gTLD offers. If some become known for providing services above simply registration, those other services could be costly. How gTLDs will develop is something we can't yet know, but the key is to assure there are many of them, and they are fully competitive.