RE: [gnso-ff-pdp-may08] Fwd: NCUC FF Statement

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

I have a few thoughts in response to this NCUC statement.

1.  Nobody to my knowledge has ever advocated banning fast flux, no matter
how it is defined.  Yet this seems to be a fundamental assumption of the
NCUC and of this statement.

2.  On one hand, NCUC says "ICANN should not take it upon itself to resolve
international conflicts of laws."  Then it proceeds to argue that ICANN
should "take particular care to protect anonymous speech" because that may
be protected in some contexts by the US Constitution.  But it is clearly not
protected in many of those same contexts in China and elsewhere.  Perhaps
someone from NCUC can explain this apparent contradiction in philosophy?  

3.  Will NCUC at least agree that it is illegal everywhere to anonymously
and/or fraudulently steal money, hack into personal computers, and/or
distribute child porn?  Maybe we can have a better discussion if we can all
agree on some universally bad things that are made a lot worse via fast flux
techniques, and are enabled by ICANN contracting parties.

Thanks,
Mike R.  

-----Original Message-----
From: owner-gnso-ff-pdp-may08@xxxxxxxxx
[mailto:owner-gnso-ff-pdp-may08@xxxxxxxxx] On Behalf Of Mike O'Connor
Sent: Monday, August 18, 2008 12:53 PM
To: gnso-ff-pdp-May08@xxxxxxxxx
Subject: [gnso-ff-pdp-may08] Fwd: NCUC FF Statement


I'm taking the liberty of forwarding Christian's NCUC statement on 
Fast Flux to the list.  Hope that's ok Christian.  Great statement.

A reminder to all.  As we discussed during the phone call, the people 
who are summarizing our list will incorporate anything posted up 
through this Friday (Aug 22) in their work.  So feel free to post 
anything that you feel needs yet to be said.

The NCUC statement follows -- inline in this email, and as the 
original Word document as an attachment.

Thanks Christian!

mikey

- - - - -  [NCUC Statement follows]

Non-Commercial Users Constituency Statement on Fast Flux Hosting

             The NCUC formally collects constituent input via its 
email discussion list as well as through a variety of informal
communications.

Definitions

             The working group has struggled considerably to define 
the term "fast flux," largely because the term already has a 
preexisting meaning within the computer security 
community.  Discussions have, however, made clear that the group 
needs terms in order to have productive discussion on this 
issue.  Specifically, the group must be able to distinguish between 
those technical measures which it may be possible to effectively 
identify and regulate and the more difficult to measure elements such 
as intent and legality.

             Additionally, the working group ought to have some terms 
to distinguish between those malevolent uses that are universally 
reviled and other uses, which might be effected by remedial 
measures.  Legality has proven to be an inadequate benchmark, since 
the Internet is by nature global, and ICANN should not take it upon 
itself to resolve international conflicts of laws.  Moreover, 
determinations of legality often turn on elements such as intent, 
which the DNS community is ill-disposed to assess.

             Because of the inherent need for these distinctions, and 
because of the baggage associated with the terms "fast flux" and 
"fast flux hosting" it would be best to craft new terms to describe 
these concepts.  As far as semantics are concerned, the working 
group's task is not to find the meaning of the terms we have been 
using but rather to find terms that will facilitate a meaningful discussion.

Benefits and Harms

             The techniques of using domains with a short time to 
live or using a large network of computers to host content at a 
single domain are not inherently moral, immoral, beneficial or 
harmful.  These qualities come not from the technologies themselves, 
but from the ways in which they are used.  ICANN should be 
particularly wary of any attempt to ban a technology because of one 
use associated with it.

             Insofar as fast flux can be used by criminals to evade 
authorities or to make a website appear more trustworthy than it is, 
it contributes to these harms.  It would, however, be a mistake to 
equate the nefarious activities with the technology.  Even if fast 
flux were completely eliminated these activities would still persist
on-line.

             Moreover, this technology (FFH) has demonstrated 
significant legitimate uses.  Fast flux has been shown to be helpful 
in combating a denial of service attack and also with facilitating 
anonymous speech.  Both current and future uses may be significantly 
impaired by attempts to ban the use of this 
technology.  Unfortunately, it is difficult to assess how these uses 
may be impacted by ICANN measures, both because of the inherent 
difficulty in anticipating new technology and because of the 
difficulties of trying to communicate with speakers who may be 
currently using similar techniques to speak anonymously.

             ICANN should take particular care to protect anonymous 
speech.  Anonymous speech allows free expression by parties who might 
otherwise be subject to scorn or retribution for expressing unpopular 
opinions.  This right to express one's true opinions without fear of 
reprisal is fundamental to the shared ideals of free speech, privacy, 
and basic human dignity.  These rights are recognized and protected 
by the First Amendment to the U.S. Constitution and Article 12 of the 
Universal Declaration of Human Rights.  Even where the strongest 
legal protections for free speech exist, the right to speak 
anonymously is still needed to protect against attacks by 
individuals, ensure open and honest discourse, and to allow speakers 
to contribute ideas without sacrificing privacy.  For this reason, 
the U.S. Supreme court has explicitly ruled that the U.S. 
Constitution protects an individual's right to speak 
anonymously.  ICANN should not take it upon itself to usurp this 
governmental function and second guess which human rights should be 
guaranteed to individuals and which should be terminated.


Potential Remedies

             Any attempt to remedy the harms that accompany fast flux 
hosting should be evaluated with due consideration to the limits of 
what ICANN can and should do.  ICANN must be vigilant to recognize 
the limited scope of its authority and mandate.  ICANN is not a 
police force, government regulator or court of law.  It is ill suited 
to determine which countries' laws should control on-line activity, 
determine when those laws have been breached, or create new rules 
intended to combat social ills.

             There are significant dangers inherent in making any 
private entity, including ICANN, responsible for determining when 
anonymous speech is or is not permissible.  Democratic societies have 
constitutions, elections, and courts to carefully balance the rights 
of the speaker against the rights of others.  Private entities do not 
have the same incentives and legal compulsions to protect the rights 
of individuals.  Because of this, private censorship is the single 
greatest threat to free speech on the Internet.

             Many plaintiffs have already considered registrars and 
ISPs as potential private censors.  They have filed suit against 
these entities because they objected to certain speech on-line.  AOL, 
Network Solutions, and Dynadot are among those targeted by such 
suits.  Sometimes these plaintiffs seek to have the content removed 
or rendered harder to access.  Sometimes they are merely seeking a 
defendant with deep pockets.  In all cases, however, the plaintiffs 
assert that Internet companies should censor the content of their customers.

             Because of these problems, ICANN should be extremely 
wary of proposed solutions that discourage anonymous communications 
on the presumption that such communications are inherently 
malevolent.  Informational approaches are preferable to those which 
prevent anonymous speech, and precautions should be included in any 
solution to ensure that we are not creating a precedent of censorship 
within the DNS community.




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