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Robin's Cyberlaw Remix Blog
A Cyberlaw Blog by Robin D. Gross


ICANN New gTLD Policy Up for Debate in Lisbon: Censorship and National Sovereignty at Issue

22 March 2007 — As ICANN’s Board Meeting in Lisbon is about to kick-off, a number of important policy issues are on the agenda.

One of the most hotly contested issues at ICANN is the current draft proposal regarding the introduction of new generic top-level domains (gTLDs) and its impact on free expression and national sovereignty.

While the latest (16 March 2007) draft proposal would no longer allow a single country to block a new gTLD string application for non-technical reasons, it would allow any group of nations to block an application for a new top-level domain for non-technical reasons.

Recommendation 6 in the draft proposal still reads “Strings must not be contrary to generally accepted legal norms relating to morality and public order.”

But now, instead of any 1 country being able to block a string on a subject it didn’t like, any group of countries objecting to a string would be able to kill the application.

Why would the ICANN Board want to give this kind of control and censorious powers to the Governmental Advisory Committee (GAC)? ICANN should stick to its technical mission and remain content-neutral in the allocation of new top-level domains and leave the politics out of the formulations.

And the proposed gTLD policy still operates under the fiction that there are such accepted public policy and morality legal norms.

The proposed gTLD policy is still a recipe for censorship and an attack on national sovereignty. Why should the restrictions in any one country be imposed upon the citizens of another country? No one has even attempted to provide a justification for that.

ICANN’s Non-Commercial User’s Constituency (NCUC) proposed to reform the new gTLD policy so that national laws will govern what speech may be permitted in a country, not ICANN policy. But that proposal was summarily swept aside.

Former ICANN Board Member Michael Palage and current GNSO Council Member Avri Doria have published a paper

recommending that ICANN remain content-neutral and resist the path of censorship in the introduction of new gTLDs.

Concerned Netizens are encouraged to contact the ICANN Board and their GAC Members to urge reform of the proposed policy. NCUC prepared a sample letter to ICANN Board Members and a sample letter to GAC Members to assist Netizens in making their voices heard.

The GNSO Committee’s proposal still erroneously equates trademark rights with rights to domain names. The draft proposal attempts to justify censorship in the new gTLD space on the flaky rationale that trademark law does not permit the registration of scandalous words. The Committee fails to recognize that a trademark is an exclusive right to prevent others from using a word in commerce, and the policy they are setting is whether anyone can use use a word at all in the new gTLD space. Big difference.

Both the GNSO Committee on New gTLDs and the GAC will make policy recommendations on the issue to the ICANN Board. The ICANN Board will then vote on the policy recommendations. The ICANN Board would be smart to remain content-neutral and not allow ICANN’s technical mission to become muddled down in politics by giving GAC any power to prevent a new string for non-technical reasons. Nor should ICANN give itself any right to prevent a string for non-technical reasons. Besides the fact that its censorship, it will also create legal liability for ICANN.

But the question remains open: Can ICANN stand-up to the GAC and resist the urge to impose a policy of censorship in the new gTLD space?

See related: NCUC Press Release of 2/27/7 “Power Grab: ICANN to Become Internet’s Word Police”

If you live in the United States, your representative on the GAC is Suzanne Sene from the US Commerce Department. Suzanne Sene can be contacted via email to SSene[at]ntia.doc.gov

The ICANN GAC representatives from other countries are listed here: http://gac.icann.org/web/contact/reps/index.shtml

The ICANN Board of Directors are listed here: http://www.icann.org/general/board.html