By Cláudio Lucena, Paraíba State University, Brazil/FCT, Católica Global, Portugal
ICANN60 in Abu Dhabi was my first onsite meeting after having joined the Non Commercial Users Constituency (NCUC). Earlier this year I had been a fellow for ICANN58 Copenhagen, joined NCUC, taken some time to follow and get to know the work of the constituency, and remotely participated in outreach initiatives for ICANN59 Johannesburg and a couple of other regional initiatives. It was finally time to join the fellows in the sessions and debates that interest the group. This first onsite experience supported by NCUC happened during a meeting in which many of its members were intensely involved in controversial issues such as the ones stemming from ICANN jurisdiction, the idea of DNS abuse, including its concept and its relationship with the subject of content regulation in the aftermath of the Daily Stormer case in the USA, the .Amazon dispute, and the privacy debate in light of the upcoming General Data Protection Regulation (GDPR in the European Union, all of which offered me a great opportunity to have a broader perspective and a more concrete view of the activities of NCUC, allowing me to better engage in the discussions where I felt comfortable.
OFAC sanctions
Since NCUC had been intensely involved in the Cross Community Working Group WS2 Jurisdiction Subgroup, and the adoption of the report was expected to take place during the meeting, together with Professor Milton Mueller we decided to focus the observation efforts of the fellowship on this environment. A summary of the arguments and developments was presented during the NCUC Constituency Day Meeting, with the outline being shared among interested members.
ICANN jurisdiction is something that concerned the community even before the idea of the IANA transition, since the jurisdiction of the incorporation of a company implies a number of privileges to the country of incorporation, which are natural, even unavoidable if other measures are not taken not mitigate them when this company performs functions that affect foreign players.
The core of the recommendation measures discussed at this moment specifically regarded sanctions which are established by the Office of Foreign Assets Control (OFAC) of the United States’ Department of the Treasury, a branch which enforces economic and trade sanctions based on US foreign policy and which targets foreign countries and regimes. This debate directly concerns NCUC to the extent that incorporation under the laws of the U.S. state of California might grant U.S. authorities power to interfere with ICANN’s management function of the DNS at a global level.
Today, to give an example, an applicant from a sanctioned country needs ICANN to apply for an OFAC license, which ICANN is currently under no obligation to seek. NCUC members such as Milton Mueller and Farzaneh Badii had been advocating along the work of the subgroup the mitigation of the effects of OFAC sanctions, reaching a proposal that would make ICANN commit to seek a license. More than that, the proposed text demands that ICANN considers carving out general licenses and applies its best efforts to obtain individual licenses in case the applicant is not individually subject to sanctions, and if the only qualification issue that it presents is the fact of being from a sanctioned country.
In spite of the clear improvement that these jurisdictional measures represent concerning the current difficulties which are faced by applicants based in sanctioned countries, opposition – and some tension – arose from other members of the subgroup. Strictly speaking, in spite of the objection, there seemed to be consensus about the recommendations, which faced no objection as per content, but Brazil’s GAC representative opposed to the consensus adoption of the report under the argument that more was necessary to be tackled by the subgroup, including the discussion on some sort of immunity system for ICANN, as it was the case with other corporations with international functions. These members voiced an objection to the consensus of the final report, stating that the proposed measures for the time being were, in their view, not enough.
During CCWG-Accountability WS2 Plenary, a relevant point was raised by Farzaneh Badii, stressing that the objection indeed refers to other possible US policy restrictions that could impact the global DNS environment, but it raised them in an abstract way. The only concrete jurisdiction issue for the time being that risks the integrity of the DNS system is the OFAC one, and this concrete issue had been reasonably addressed by the subgroup, representing a verifiable step forward in its work. Moreover, that level of abstraction would completely prevent the discussion and successful granting of any immunity from the US government in the present circumstances.
By the end of the meeting, and with the adoption of the subgroup report, it was possible to ease the tension in the debate by acknowledging with less confrontation that the grounds for the objection were not unreasonable or unacceptable, and that NCUC did not oppose continuing the discussions for constant review of jurisdictional conflicts as other concrete issues arise, and even on further improvement of jurisdictional structures which might include carving out special immunity systems, an acknowledgement whose incorporation into the final report was proposed during a remote intervention by Greg Shatan in a Cross Community Session on Jurisdiction.
Contractual Compliance and GDPR issues
It was also an interesting experience for me to follow the process through which ICANN Contractual compliance ended up deferring taking action against registries or registrars for noncompliance with obligations concerning registration data. A number of sessions in Abu Dhabi highlighted discussions around the reconciliation of WHOIS/Registry Directory Service (RDS) and the upcoming European Union’s General Data Protection Regulation (GDPR). Challenges in the alignment of these two instruments are evident, while solutions are not yet clear. During the meeting it was recognized that implementing the GDPR on publicly available WHOIS directory will have an impact, although no concrete understanding of this impact was possible. The concern of the community, and particularly of NCUC members such as Stephanie Perrin during the discussions, the pressure from decisions coming from national data protection authorities, and the current period of uncertainty concerning such developments ended up pushing ICANN Contractual Compliance to admit, through a speech delivered during the meeting by CEO Göran Marby, that no action would be taken now against contracted parties that, under certain criteria, demonstrate that some accommodation is necessary for them to comply with GDPR and their contractual obligations with ICANN, provided that they agree to share that tentative compliance model with ICANN for mutual analysis.
Internet Universality Indicators
Finally, also as a result of the fellowship, I had the opportunity of following the session concerning Internet Universality Indicators, which was hosted by Nigel Hickson and conducted by Guy Berger, Director for Freedom of Expression and Media Development at UNESCO. The Connecting the Dots conference established common principles for a minimum global digital rights agenda, namely a rights-oriented approach (R), accessibility (A), openness (O), and multistakeholderism (M). UNESCO’s project on Internet universality indicators is an initiative that aims at the next step, which is establishing indicators to determine if such principles are becoming more than just a UN resolution, and to use them in practice. Mr. Berger presented a number of ways through which these principles and possible indicators intertwine with the DNS system, and thus falls within the mandate of ICANN and the interests of the community.
At this stage the project is taking contributions in the form of public comments. The current tentative structure thinks of the indicators in terms of categories and targets. During the session I raised the issue of a potential connection between Internet Universality Indicators and the United Nations’ Sustainable Development Goals (SDGs), an intervention which later turned into a public comment which was submitted to the platform. Since the tentative indicator structure considers elements like survival rate of Internet-related start-ups, Internet Governance, active participation in ICANN processes, connectivity, open content and data, capacity-building, IPv4 and IPv6 deployment, DNSSEC implementation and a series of policy and regulatory issues, there seems to be clear space to debate NCUC-related interests in the scope of this relevant project. Having engaged with the UNESCO team which is conducting this initiative, I will keep updating community members about the developments so that it is possible for them to bring in further suggestions, ideas and concerns, whenever they feel they can contribute.
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