sarettah
12-16-2006, 06:51 PM
I just posted this over at the zoo but figured I would share it here too.
Many people on this board have spent the past few days stating that DirectNic, as a registrar, did not have the legal right or authority to take the actions they did. In fact, it has been taken to the point by some that what they did it is in actuality an unconstitutional infringement on Slick’s free speech rights when they apparently arbitrarily shut down Slick’s sites. Further it has been stated that ICANN does not allow Directnic to take the action it did.
None of it is true. Directnic had the authority to take the action it did. It was not required to do all that it did, but it definitely had the right both through U.S. law and their agreement with ICANN.
First some definitions.
According to the U.S. code an electronic communications service means “any service which provides to users the ability to send or receive wire or electronic communications” (US Title 18 section 2510 definitions paragraph 15) (http:// uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1102+1++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282510%29%29%3ACITE%20%20%20% 20%20%20%20%20%20http:// http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1102+1++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282510%29%29%3ACITE%20%20%20% 20%20%20%20%20%20). It further defines a remote computing service as the provision to the public of computer storage or processing services by means of an electronic communications system. (US Code 18 section 2711 paragraph 2) (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1126+1++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282711%29%29%3ACITE%20%20%20% 20%20%20%20%20%20).
DirectNic, as a registrar, can be considered both an electronic communications service and a remote computing service. It facilitates the sending and receiving of electronic communication because it stores the all-important location of the A record for the DNS system that makes the Internet work. Without this information the DNS system would not be able to locate the name server for a site. It also stores and allows access to the public of its whois database therefore making it an electronic communications system.
US Code Title 42 Chapter 132 subchapter 4 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+7459+21++%28%27c hild%20pornography%27%29%20%20%20%20%20%20%20%20%2 0%20) states that any electronic communications service or remote computing service is required if it obtains knowledge of facts or circumstances from which any violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 of title 18, involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title. Is apparent. It also states that the electronics communications service or remote communications service is not required to investigate the occurrence nor is it required to monitor the services for violations. However, it does clearly state that the electronics communications service or remote computing service may investigate the incident if they so choose:
(d) Limitation of information or material required in report a report under subsection (b)(1) of this section may include additional information or material developed by an electronic communication service or remote computing service, except that the Federal Government may not require the production of such information or material in that report.
The definition of child pornography in US title 2256 is:
8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct;
or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
US Title 18 section 2256 paragraph 8 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1003+0++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282256%29%29%3ACITE%20%20%20% 20%20%20%20%20%20)
The definition of indistinguishable according to US Title 18 section 2256 is:
(11) the term "indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
US Title 18 section 2256 paragraph 11 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1003+0++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282256%29%29%3ACITE%20%20%20% 20%20%20%20%20%20)
So, clearly, in the eyes of US law, DirectNic had to make a report if they received a complaint of possible child pornography on a domain that was registered through their service and they were allowed, if they so chose, to make an additional investigation to accompany the report. Failure to make the report could cost them up to $50,000.00. They then further investigated and I imagine their first step was to look at the site in question. From the reaction on this board when all the directnic stuff broke earlier this week, many people posting clearly thought they were looking at actual minors thereby meeting the definition of indistinguishable as outlined above. At that point they attempted to further investigate by requesting proof of age from the domain holder.
Each registrar draws its authority to assign domain names through a registrar agreement with ICANN. In the registration agreement, ICANN outlines the minimum requirements that a registrar must take to be in compliance with the agreement. (ICANN registrar agreement) (” http://www.icann.org/registrars/ra-agreement-17may01.htm”). Within this agreement is 1 section that deals with the registrars business dealings with registrants. Paragrapgh 3.7.7.11 states that “The Registered Name Holder shall agree that its registration of the Registered Name shall be subject to suspension,
cancellation, or transfer pursuant to any ICANN adopted specification or policy, or pursuant to any registrar or registry procedure not inconsistent with an ICANN adopted specification or policy".
ICANN clearly indicates that the registrar is allowed to adopt any procedures they want regarding cancellation as long as they are not inconsistent with ICANN’s policies. Further, in section 3.7.7.3 the agreement clearly establishes that there are “wrongful uses” for a domain name, although it does not specify what those wrongful uses are.
"Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly discloses the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm."
ICANN, through this agreement clearly grants the registrar authority to create the policies that it feels are needed to properly administer their service as long as those policies do not collide with ICANN policy. So DirectNic draws the authority to shut down the domains based on a report of cp from the ICANN agreement most assuredly.
Putting it all together, DirectNic was required by law to act on a report of child pornography on a domain registered through them. Directnic was allowed by law to make an investigation and is allowed by law to monitor domains registered through them. In addition to reporting the incident and undertaking their own investigation they were allowed, by authority granted to them through an agreement with ICANN to cancel the accounts as they saw fit.
Many people on this board have spent the past few days stating that DirectNic, as a registrar, did not have the legal right or authority to take the actions they did. In fact, it has been taken to the point by some that what they did it is in actuality an unconstitutional infringement on Slick’s free speech rights when they apparently arbitrarily shut down Slick’s sites. Further it has been stated that ICANN does not allow Directnic to take the action it did.
None of it is true. Directnic had the authority to take the action it did. It was not required to do all that it did, but it definitely had the right both through U.S. law and their agreement with ICANN.
First some definitions.
According to the U.S. code an electronic communications service means “any service which provides to users the ability to send or receive wire or electronic communications” (US Title 18 section 2510 definitions paragraph 15) (http:// uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1102+1++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282510%29%29%3ACITE%20%20%20% 20%20%20%20%20%20http:// http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1102+1++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282510%29%29%3ACITE%20%20%20% 20%20%20%20%20%20). It further defines a remote computing service as the provision to the public of computer storage or processing services by means of an electronic communications system. (US Code 18 section 2711 paragraph 2) (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1126+1++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282711%29%29%3ACITE%20%20%20% 20%20%20%20%20%20).
DirectNic, as a registrar, can be considered both an electronic communications service and a remote computing service. It facilitates the sending and receiving of electronic communication because it stores the all-important location of the A record for the DNS system that makes the Internet work. Without this information the DNS system would not be able to locate the name server for a site. It also stores and allows access to the public of its whois database therefore making it an electronic communications system.
US Code Title 42 Chapter 132 subchapter 4 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+7459+21++%28%27c hild%20pornography%27%29%20%20%20%20%20%20%20%20%2 0%20) states that any electronic communications service or remote computing service is required if it obtains knowledge of facts or circumstances from which any violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 of title 18, involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title. Is apparent. It also states that the electronics communications service or remote communications service is not required to investigate the occurrence nor is it required to monitor the services for violations. However, it does clearly state that the electronics communications service or remote computing service may investigate the incident if they so choose:
(d) Limitation of information or material required in report a report under subsection (b)(1) of this section may include additional information or material developed by an electronic communication service or remote computing service, except that the Federal Government may not require the production of such information or material in that report.
The definition of child pornography in US title 2256 is:
8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct;
or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
US Title 18 section 2256 paragraph 8 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1003+0++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282256%29%29%3ACITE%20%20%20% 20%20%20%20%20%20)
The definition of indistinguishable according to US Title 18 section 2256 is:
(11) the term "indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
US Title 18 section 2256 paragraph 11 (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1003+0++%28%29%2 0%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND% 20%28USC%20w%2F10%20%282256%29%29%3ACITE%20%20%20% 20%20%20%20%20%20)
So, clearly, in the eyes of US law, DirectNic had to make a report if they received a complaint of possible child pornography on a domain that was registered through their service and they were allowed, if they so chose, to make an additional investigation to accompany the report. Failure to make the report could cost them up to $50,000.00. They then further investigated and I imagine their first step was to look at the site in question. From the reaction on this board when all the directnic stuff broke earlier this week, many people posting clearly thought they were looking at actual minors thereby meeting the definition of indistinguishable as outlined above. At that point they attempted to further investigate by requesting proof of age from the domain holder.
Each registrar draws its authority to assign domain names through a registrar agreement with ICANN. In the registration agreement, ICANN outlines the minimum requirements that a registrar must take to be in compliance with the agreement. (ICANN registrar agreement) (” http://www.icann.org/registrars/ra-agreement-17may01.htm”). Within this agreement is 1 section that deals with the registrars business dealings with registrants. Paragrapgh 3.7.7.11 states that “The Registered Name Holder shall agree that its registration of the Registered Name shall be subject to suspension,
cancellation, or transfer pursuant to any ICANN adopted specification or policy, or pursuant to any registrar or registry procedure not inconsistent with an ICANN adopted specification or policy".
ICANN clearly indicates that the registrar is allowed to adopt any procedures they want regarding cancellation as long as they are not inconsistent with ICANN’s policies. Further, in section 3.7.7.3 the agreement clearly establishes that there are “wrongful uses” for a domain name, although it does not specify what those wrongful uses are.
"Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly discloses the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm."
ICANN, through this agreement clearly grants the registrar authority to create the policies that it feels are needed to properly administer their service as long as those policies do not collide with ICANN policy. So DirectNic draws the authority to shut down the domains based on a report of cp from the ICANN agreement most assuredly.
Putting it all together, DirectNic was required by law to act on a report of child pornography on a domain registered through them. Directnic was allowed by law to make an investigation and is allowed by law to monitor domains registered through them. In addition to reporting the incident and undertaking their own investigation they were allowed, by authority granted to them through an agreement with ICANN to cancel the accounts as they saw fit.