IGF 2019 WS #331 Should we tackle illicit content through the DNS?

Relevance to Theme: The Domain Name System (DNS) is an addressing system upon which all networks that form the Internet rely. Its correct and neutral operation is fundamental to the security, stability and resilience of the Internet (and therefore of cyberspace as a whole). The Global Commission on the Stability of Cyberspace has recently described the DNS as one of the key parts of the “public core of Internet” (together with the Internet’s numbering system, packet routing and forwarding schemes, the underlying physical transmission media, as well as cryptographic mechanisms used for authentication and identity).

As Internet penetration and usage increase worldwide, more cases of user abusive behaviour and the publication of illicit content become visible and known to the general public (e.g.: hate speech, child sexual abuse material, terrorist content and propaganda, sales of counterfeit products, trademark and copyright violations, etc.). Increasingly, registries and registrars have been requested or forced (either through court orders or private notice & takedown requests that) to perform changes to the DNS space under their responsibility by cancelling, transferring, deleting or suspending domain names as a means to tackle illicit or abusive content available on the Internet. Sometimes, depending on the legal regime applied to intermediaries, registries and registrars run the risk of being held liable for third party content on the Internet.

While resorting to the DNS seems to be a rapid alternative to blocking access to abusive content or activities online, it does not provide an effective and sustainable way to remove content from the Internet, because new domain names might be easily be acquired for replacing those that become eventually cancelled or suspended and the content itself remains available on running servers maintained by those who produce and publish it and/or hosting provider they use. More importantly, interventions at the level of DNS operation can endanger the availability, the correct operation and the usability of the Internet for three main reasons. First, one single domain name can refer to an array of different servers, other domains and even whole networks. A domain name is larger in scope than an individual URL that generally indicates in a narrow sense the specific illicit content. To target a domain name might generate disproportional consequences and do damage to a collection of legitimate content and activities online, rendering very significant portions of the Internet unavailable. Second, due to the transnational nature of the DNS, local interventions in the system based in locally applicable legal norms can have cross-border effects that generate legal uncertainty and unleash what some have called a “legal arms race” that further contributes to technical, economic and political instability surrounding the Internet ecosystem. Finally, the large number of actors demanding solutions for tackling illicit content online coupled with an even larger number of actors and entities involved with DNS operation have generated uncoordinated policy and regulatory responses (from voluntary codes of conduct to extrajudicial trusted notification schemes between private parties and between public authorities and private operators) that have further aggravated the problem.

Due to the decentralised nature of the Internet and the difficulties inherent to tackling illicit online content, several stakeholders have been exerting pressure (including by demanding policy and regulatory intervention) over DNS operators in order to curtail access to illicit activities and content at the level of the DNS (sometimes even with extraterritorial and jurisdictional implications). On that front, important work has already been carried out by the Internet & Jurisdiction Policy Network in the development of operational norms, criteria and mechanisms to guide the practice of all stakeholders vis-à-vis the DNS in cases that deal with technical abuse and illicit content. Building on that, the proposed workshop aims to promote an in-depth and focused analysis of the latter topic (illicit content) within the scope of the 2019 IGF, guided by a risk-based approach to raise awareness of the direct and indirect implications of indiscriminate action against the DNS (and in consequence affecting the security, stability and resilience of the Internet as a whole).

Relevance to Internet Governance: One of the biggest challenges on Internet Governance is striking a balance between freedom of expression and security, sometimes incorrectly portrayed as contradictory. That challenge is amplified by the fact that some of the inherent characteristics of the Internet (e.g. global reach, openness, permissionless innovation and generativity) allow for the production of an almost infinite amount of content both in terms of quantity and in terms of quality. Furthermore, tackling illicit online content is not a simple undertaken, due to the fact that what is illicit in one jurisdiction might not be illicit in others. And, most importantly, there is little consensus on the proper methods and tools for dealing with abusive materials made available online. Uncertainty that surrenders those aspects of the discussion have a clear cut relation to goals #9, #16 and #17 of the SDGs. Industry, innovation and infrastructure development depend on flexible yet stable normative frameworks to flourish. Strong and accountable public and private institutions which operate or act upon DNS infrastructure are fundamental to the achievement of social justice and peaceful coexistence. And solid, cooperative, collaborative, inclusive and democratic partnerships (in line with the tenets of multi-stakeholderism) are essential to further and achieve the previous goals (as well as all of the other goals altogether).

The development and adoption of appropriate measures to deal with the issue of abusive online content shall be conducted in a manner that is consistent with the characteristics of the Internet, protects intermediaries from unreasonable burden and is respectful of the rights of its users, something that has been widely recognized by the WSIS, mainly in the Tunis Agenda (e.g. paragraph 43), reinforced by the NETmundial Declaration in 2014 (as it reiterates human rights protections online and the unified and unfragmented characteristic of the global Internet) and furthered ever since by other processes and fora in the last five years (for instance, the OECD Principles for Internet Policy Making, the initial documents produced by the UN Secretary General’s High-level Panel on Digital Cooperation, the UNESCO Roam Principles, the anti-abuse work being conducted within the ICANN community, which led to a solid reporting platform for abusive practices, among others).

The reduction, mitigation and combat against the proliferation of abusive content should not be dealt with unilaterally either by governments through legislation or the private sector through autoregulation and self-regulation. Because those actions can affect freedom of expression and other fundamental human rights (e.g.: freedom of association and of assembly), civil society has a concrete role to play in any discussion of the matter. Moreover, people from the technical community are essential in such debate, especially those who work on a daily basis at the forefront of incident handling and activities focused on the security, stability and resilience of the Internet as a whole.

From a procedural standpoint, the collaborative dialogue among those stakeholder groups around the topic in question can yield better results if it follows some widely recognized principles that can ensure open, consensus driven, transparent and accountable, inclusive, equitable and participatory activities. With that spirit in mind, as the IGF is the main focal point for Internet policy discussion worldwide, this workshop intends to serve as a platform for the convergence of different initiatives that have been dealing with the topic and for mapping good and bad examples of local legal frameworks applicable to the DNS as well as of policies and initiatives adopted by DNS operators to deal with illegal online content.