Please not ICANN, please not ICANN ... aaaargh!
First, it can pressure ICANN. ICANN writes the rules that registries and registrars of most of the top-level domains must follow. It could, in theory at least, write rules that would require the taking down of websites that fit criteria aimed at removing Islamic State material.
Except ICANN is very strongly opposed to getting involved at any level with content on the internet. ICANN was set up to act as a technical coordinator to ensure that the internet expanded smoothly. Any move into content regulation would turn the organization into a global regulator, and not only does no one want the organization to take on that sort of all-powerful role, but the organization itself is completely incapable of handling that sort of responsibility (ICANN is a shambles of an organization, as we have repeatedly reported on).
If the US government did decide to try to force ICANN to create rules built around content using its legislative authority, it would undermine the entire organization and almost certainly "split the root" – meaning that the single, global interoperable internet would break apart, causing endless problems with just about every internet service. It would be an enormous isolationist move that would destroy the internet as we know it and every US official that has ever been responsible for the internet's functioning has explicitly warned against such a scenario for over a decade.
So if ICANN is a no-no, how about the registries – the companies that run the top-level domains? Well, again, these companies make the same argument: they are not responsible for the content on domain names: their job is simply to supply names on an addressing system and to do so as efficiently as possible. If they were required to run a background check on every domain name registered, it would hugely increase the cost of a domain and massively limit the internet's flexibility. We would end up with a government-regulated internet – which is something that no one beyond authoritarian regimes want.
What about the registrars – the companies that individuals actually use to register a domain name? Here there is some room for improvement. All registrars under top-level domain overseen by ICANN are required to take and publish the individual's contact details in what is called a "Whois" service.
The Whois contains name, address, email, and telephone details, and is used by lawyers and law enforcement (and journalists) to find out who owns a specific domain name and to contact them. Unfortunately Whois is also a policy nightmare that ICANN – as the organization in charge of it – has proven completely incapable of improving for more than a decade.
The Whois service is a major bugbear for the Federal Trade Commission (FTC) and intellectual property lawyers and, in fact, just about everyone in the internet policy field. The US government has persistently used its soft influence on ICANN to try to improve the service, including incorporating a mandatory review on its effectiveness every few years. Unfortunately, despite seemingly endless efforts, no real progress has been made, and most recently the ICANN Board decided to try to create an entirely new replacement for the service – an approach which has gone nowhere for the past two years.
There are two big problems with Whois: one, people want to use privacy services so their home address and telephone number aren't readily available on the internet – an understandable concern – but second, and more importantly for the concept of pulling down Islamic State material, a lot of information in Whois is pure junk. Stories abound about the number of domains run by Mickey Mouse and similar fictional characters. As things stand, registrars rarely, if ever, check on the accuracy of the information they are given, and only when there is a formal request, typically from law enforcement, do they dig into the domains they are paid to register.
The front line
Registrars do not have the same kind of defense as registries and ICANN have when it comes to the use of a domain name. And there are many examples of where registrars have taken down websites – almost always because they were infringing copyright or other intellectual property.
In most cases, however, it is often because the registrar didn't just register the name but is also acting as the hoster of the material that appears on the website (hosting is far more lucrative than domain registration). The Department of Homeland Security has gone on occasional spates of shutting down websites and grabbing domain names, not always with the best results.
When Congressman Barton asks about "tracking down" website operators, it is the Whois and the registrar industry that could make that easier or more effective. And there is real room for improvement. The only issue is that it would have to go through the ICANN process, and the registrars often exhibit a tight control on any proposed ICANN policies that they don't like, thanks in large part to the fact that they supply ICANN with the bulk of its budget in the form of an ICANN fee on every domain sold.
Finally, that leads to domain hosting – the companies on whose servers such material actually resides. And here is where both law enforcement and IP lawyers are already extremely active, and have been so for some time. If material breaks the law, then every hosting company will act to remove it. Often, just the threat of legal action is sufficient for a hosting company to take down a website (much to the annoyance of bloggers and others).
And this is where Barton's idea falls apart. In order to get hosting companies to remove material, it needs to come with a legal threat, and for a legal threat material typically needs to be illegal. The question then becomes: what is illegal about the material that Islamic State posts? Unless Congress wants to bypass the First Amendment, it is going to have a very hard time making the argument.
Of course, all hosting companies reserve the right to remove material they also deem offensive or derogatory, but that is under their discretion. And that leads to FCC chair Tom Wheeler's favorite expression for internet problems such as this: whack-a-mole.
Islamic State puts up some material, someone notices, goes to the hosting company, the hosting company takes it down, Islamic State puts it up somewhere else.
Maybe Barton has come up with a system that works better than this, but it seems unlikely seeing as literally thousands of very smart people have been working on the same problem for over a decade with little success.