Wednesday, July 16, 2008
Cheryl B. Preston, Brigham Young Law School and Brent Little, Brigham Young University, have published "ICANN Can: Contracts and Porn Sites: Choosing `to Play Internet Ball in American Cyberspace'" at 21 Pacific McGeorge Global Business & Development Law Journal 79 (2008). Here is the abstract.
We argue in this article that the history and structure of the International Corporation for Assigned Names and Numbers (ICANN) illustrates that, despite its claims to the contrary, ICANN does now make and implement policy in non-technical areas of Internet governance. This article examines how ICANN-imposed obligations within the Domain Name System (DNS) have been used to implement those policy objectives. Efforts at protecting children from age-inappropriate sexually explicit material online should be as important a policy for ICANN as is protecting the economic value of big corporations trademarks. Terms within ICANN's Uniform Domain-name Dispute-Resolution Policy (UDRP) can be meaningfully engaged in helping countries carry out reasonable pornography regulation. This approach does not require radical changes in law or structure; instead, it enables governments to enforce Internet pornography and obscenity laws that have been difficult to enforce because of the Internet's borderless nature.
This Article describes how UDRP language, and the even more extensive language adopted by many ICANN-authorized registrars, registries and Internet service providers, gives the legal basis for removing Internet sites that violate the law. We then detail how this approach can be implemented in the United States under existing rules on jurisdiction and the reach of injunctions.
Download the article from SSRN here.