Seltzer additional comments

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

As a domain registrant and member of the Non-Commercial Stakeholder
Group, I write with this individual comment to emphasize some of the
points made by NCSG.

In the "Safeguards Applicable to all New gTLDs," the GAC proposes speech
regulations through the intermediaries of ICANN Registries. While the
end of mitigating abuse may seem laudable, the means -- pressure through
ICANN on domain name Registries -- is an inappropriate way to achieve
that end. Intermediary liability is subject to errors that are
systematically speech-suppressing. [1]

Making domain Registry operators the judges of whether registrants are
engaged in "abuses" including "phishing, piracy, trademark or copyright
infringement, fraudulent or deceptive practices, counterfeiting, or
otherwise engaging in activity contrary to applicable law," substitutes
the Registry's judgment and process for that of courts and judicial
procedures -- leaving Registrants' speech interests at risk. The legal
definitions of these abuses vary by jurisdiction; their contours often
challenge experienced judges even when aided by skilled advocates and
evidence; we should not delegate their judgment to a Registry's abuse
department and the enforcement of "terms of use."

As NCSG wrote in comments on the Registrar Accreditation Agreement [2],
Registrants should have the rights to reliable neutral resolution of
registered domain names and no suspension or termination of registration
without due, disclosed process, and no censorship of domain name use,
content, or communications through Registries or Registrars. The GAC's
Annex I paragraph 2 advice is inconsistent with Registrants' rights to
stable, secure domain resolution, and should be rejected. Annex I
paragraph 1 should be rejected as inconsistent with expectations of
privacy and anonymity.

Thank you,
--Wendy Seltzer

-- notes --

[1] See Free Speech Unmoored in Copyright's Safe Harbor: Chilling
Effects of the DMCA on the First Amendment 24 Harvard Journal of Law and
Technology 171 (2010) http://wendy.seltzer.is/writing/seltzer-chill.pdf

[2]
http://forum.icann.org/lists/comments-proposed-raa-22apr13/pdfsT1mQRi6IS.pdf

-- 
Wendy Seltzer
https://www.chillingeffects.org/