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

[Dave Piscitello <dave.piscitello@xxxxxxxxx>]

Mike,

I, too, was surprised at some of the NCUC language, but honestly, I was 
surprised at other constituency statements, too.

Earlier, I suggested that we try to lay out all that we know and have learned 
about flux networks without trying to seek consensus yet. After reading some of 
the constituency statements, I can't help but believe that many people are 
making decisions based on partial or incorrect information.

We get distracted and more polarized each time we try to characterize flux 
networks by trying to consider whether the use is 
good/evil/bad/decent/moral/legal. At one point we were on a very constructive 
path towards enumerating the characteristics of fast flux networks and thus 
defining the varieties of such networks. I really wish we would go back to that 
enumeration and complete it very analytically and dispassionately.


On 8/18/08 4:39 PM, "Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx> wrote:



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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