It was my privilege to spend Tuesday in Washington, DC for the Congressional Internet Caucus Advisory Committee's State of the Net Conference 2012, which definitely reflected the degree to which PROTECT-IP and SOPA loom large over the American Internet policy landscape, and to which many policy-shapers from across the political spectrum have woken up to how critical sound Net policy really is. There was a lot to love: the debates were full-throated, civil, and constructive; both panelists and attendees were clearly engaged and happy to be there; and if Paul Brigner of the MPAA is to be believed, the superlaser on the SOPA Death Star, pointed squarely at the integrity of the global DNS, is going offline as soon as the bill hits the Senate floor.
There was also a surprising and very welcome amount of attention paid to section 230 of the Communications Decency Act. StopBadware has spilled some ink in the past over the degree to which the CDA at once protects Net infrastructure intermediaries in a valuable way, but, as drafted, does much to discourage self-policing when dealing with malware reports. In particular, Brian Cute (late of ICANN and now head honcho of Public Interest Registry, the stewards of .org) and John Morris (late of the StopBadware board and now at NTIA, the legal stewards of the root zone) spoke eloquently of the urgent need for infrastructure stakeholders to take good netizenship seriously, notwithstanding the current statutory status quo. For StopBadware, there was a lot to love.
My one big wish coming out of the conference, though, is that policymakers display somewhat more willingness to reframe the debates around SOPA, DNSSEC, CDA 230 (and various other wonky acronyms) in terms of service abuse. The problem that undergirds "rogue sites" (a term I have never heard used more times than in the opening plenary), whether they be fake pharmaceuticals, malware distribution, or "dedication to copyright infringement" (whatever that really means) is one of accountability. I believe, unreservedly, that when domain names or hardware under US jurisdiction is used to abuse the laws of the United States, the legal personality responsible for that abuse, or part of the problem, should be held to account in an Article III court. We need the real deal, with every due process protection imaginable, and with hefty, easily collectible default penalties if they ignore the court. In my view, holding intermediaries like domain name registrars, web hosting providers, and other infrastructure operators responsible for obfuscating or evading this bedrock principle of Western law is an important element of achieving this state of affairs. SOPA’s liberal construction of U.S. jurisdiction is, in this very limited sense, the right idea. It’s also important to maintain an accurate and universal directory of domain name owners and IP address lessees, with protections for owner anonymity but the ability to pierce its veil for good cause shown. (No more paper airplanes, please! We believe in anonymity too!)
So why doesn't SOPA, or whatever alternative DC policymakers are considering, address the issue of domain name accountability head on? Why has Congress not laid out a statutory structure to govern disputes over Internet “land” when disputes over real property are some of the best understood legal frameworks anywhere? The solution could be deceptively simple. (As I'll explain in a subsequent post, we've had the tools to fix this since the heyday of Anglo-Norman law.) Not that government intervention is necessarily required - yet.
This is where my question to Dr. Crocker, the chairman of ICANN, about WHOIS comes into play (as tweeted here). ICANN has the (bureaucratic and necessarily glacially-paced) tools to fix the accountability problem, as their own WHOIS Review Team has elegantly pointed out. But WHOIS records continue to list fake addresses or junk data, many registrars can't be bothered to do anything about it (since they're effectively on the take), and ICANN itself seems insufficiently motivated to use the tools at its disposal to force the issue. I hope to attend ICANN's next public meeting in Toronto in October to observe and, if so permitted, to make the case for real WHOIS reform.
All told, however, it is an unambiguously positive development that the US government has made cybersecurity a legislative and executive priority, and StopBadware very much looks forward to working with everyone at the policy table to secure a safer Internet in 2012.