STATEMENT OF DISSENT ON RECOMMENDATION #6 OF
GNSO’S NEW GTLD REPORT FROM
THE NON-COMMERCIAL USERS CONSTITUENCY (NCUC)
20 July 2007
NCUC supports most of the recommendations in the GNSO’s Final Report,
but Recommendation #6 is one we cannot support.
We oppose Recommendation #6 for the following reasons:
1) It will completely undermine ICANN’s efforts to
make the gTLD application process predictable, and instead make the
evaluation process arbitrary, subjective and political;
2) It will have the effect of suppressing free and
3) It exposes ICANN to litigation risks;
4) It takes ICANN too far away from its technical
coordination mission and into areas of legislating morality and public
We also believe that the objective of Recommendation #6 is unclear, in
that much of its desirable substance is already covered by
Recommendation #3. At a minimum, we believe that the words “relating to
morality and public order” must be struck from the recommendation.
1) Predictability, Transparency and Objectivity
Recommendation #6 poses severe implementation problems. It makes it
impossible to achieve the GNSO’s goals of predictable and transparent
evaluation criteria for new gTLDs.
Principle 1 of the New gTLD Report states that the evaluation process
must be “predictable,” and Recommendation #1 states that the evaluation
criteria must be transparent, predictable, and fully available to
applicants prior to their application.
NCUC strongly supports those guidelines. But no gTLD applicant can
possibly know in advance what people or governments in a far away land
will object to as “immoral” or contrary to “public order.” When
applications are challenged on these grounds, applicants cannot
possibly know what decision an expert panel – which will be assembled
on an ad hoc basis with no precedent to draw on – will make about it.
Decisions by expert panels on “morality and public order” must be
subjective and arbitrary, because there is no settled and
well-established international law regarding the relationship between
TLD strings and morality and public order. There is no single
“community standard” of morality that ICANN can apply to all applicants
in every corner of the globe. What is considered “immoral” in
Teheran may be easily accepted in Los Angeles or Stockholm; what is
considered a threat to “public order” in China and Russia may not be in
Brazil and Qatar.
2) Suppression of expression of controversial views
gTLD applicants will respond to the uncertainty inherent in a vague
“morality and public order” standard and lack of clear standards by
suppressing and avoiding any ideas that might generate
controversy. Applicants will have to invest sizable sums of money
to develop a gTLD application and see it through the ICANN
process. Most of them will avoid risking a challenge under
Recommendation #6. In other words, the presence of Recommendation
#6 will result in self-censorship by most applicants.
That policy would strip citizens everywhere of their rights to express
controversial ideas because someone else finds them offensive.
This policy recommendation ignores international and national laws, in
particular freedom of expression guarantees that permit the expression
of “immoral” or otherwise controversial speech on the Internet.
3) Risk of litigation
Some people in the ICANN community are under the mistaken impression
that suppressing controversial gTLDs will protect it from litigation.
Nothing could be further from the truth. By introducing subjective and
culturally divisive standards into the evaluation process
Recommendation #6 will increase the likelihood of litigation.
ICANN operates under authority from the US Commerce Department.
It is undisputed that the US Commerce Department is prohibited from
censoring the expression of US citizens in the manner proposed by
Recommendation #6. The US Government cannot “contract away” the
constitutional protections of its citizens to ICANN any more than it
can engage in the censorship itself.
Adoption of Recommendation #6 invites litigation against ICANN to
determine whether its censorship policy is compatible with the US First
Amendment. An ICANN decision to suppress a gTLD string that would
be permitted under US law could and probably would lead to legal
challenges to the decision as a form of US Government action.
If ICANN left the adjudication of legal rights up to courts, it could
avoid the legal risk and legal liability that this policy of censorship
brings upon it.
4) ICANN’s mission and core values
Recommendation #6 exceeds the scope of ICANN’s technical mission.
It asks ICANN to create rules and adjudicate disputes about what is
permissible expression. It enables it to censor expression in
domain names that would be lawful in some countries. It would
require ICANN and “expert panels” to make decisions about permitting
top-level domain names based on arbitrary “morality” judgments and
other subjective criteria. Under Recommendation #6, ICANN will
evaluate domain names based on ideas about “morality and public order”
-- concepts for which there are varying interpretations, in both law
and culture, in various parts of the world. Recommendation #6
risks turning ICANN into the arbiter of “morality” and “appropriate”
public policy through global rules.
This new role for ICANN conflicts with its intended narrow technical
mission, as embodied in its mission and core values. ICANN holds
no legitimate authority to regulate in this entirely non-technical area
and adjudicate the legal rights of others. This recommendation
takes the adjudication of people’s rights to use domain names out of
the hands of democratically elected representatives and into the hands
of “expert panels” or ICANN staff and board with no public
Besides exceeding the scope of ICANN’s authority, Recommendation #6
seems unsure of its objective. It mandates “morality and public
order” in domain names, but then lists, as examples of the type of
rights to protect, the WTO TRIPS Agreement and all 24 World
Intellectual Property (WIPO) Treaties, which deal with economic and
trade rights, and have little to do with “morality and public
order”. Protection for intellectual property rights was fully
covered in Recommendation #3, and no explanation has been provided as
to why intellectual property rights would be listed again in a
recommendation on “morality and public order”, an entirely separate
In conclusion Recommendation #6 exceeds ICANN’s authority, ignores
Internet users’ free expression rights, and its adoption would impose
an enormous burden on and liability for ICANN. It should not be
adopted by the Board of Directors in the final policy decision for new