KEEP THE CORE NEUTRAL
ICANN Proposes to Over-Regulate New Domain Names:
Free Expression Threatened by Policy to Ban Controversial Ideas in Domain Names
By Robin D. Gross ~ 30 May 2007
The Internet Corporation for Assigned Names and Numbers (ICANN), the private California corporation set up by the United States Commerce Department in 1998 to manage and control the Internet’s root server is developing a policy to introduce new generic top-level domains. Unfortunately the draft policy ignores freedom of expression guarantees, it expands the rights of trademark owners on the Internet, and it sets up an arbitrary and subjective process that calls for ICANN to decide what ideas may be referred to in Internet domain names and by whom.
Examples of generic top-level domains (gtlds) include .com, .edu, .gov, .biz, and .net. Gtlds are signaled by the letters after the final period or “dot†in a domain name (“generic†domains are not to be confused with specific “country-code†top-level domains such as .us, .ca, .de, .uk, .tv, etc.).
For many years, members of the Internet community have asked ICANN to open-up the opportunity for other words or letters to be considered generic top-level domains available for registration. Despite the lack of any technical problems, only a handful of new tlds have so far been allowed, such as .travel and .museum. And before ICANN will consider permitting any new generic top-level domains, it is developing a policy to handle the applications.
Since its creation, ICANN has assured the public that it’s mission is purely technical and that it is not a legislative nor substantive law-making body for the Internet. Indeed, as a private corporation, ICANN would lack legitimacy at law-making since its leadership is neither democratically elected nor accountable to the greater public interest.
ICANN should work to keep the core neutral and evaluate applications for new top-level domain names on purely technical criteria. But instead, ICANN is developing a policy that circumvents national law and free expression rights by deciding for the entire world which ideas may be referred to in a top-level domain and who the legitimate sponsor of a particular “idea†or domain should be.
ICANN’s proposed policy treats all speech as commercial speech and regulated by trademark rights, even though the vast majority of online communication is non-commercial speech, entirely outside the scope of control of trademark owners. It would be perfectly legal for a nonprofit organization that acts as a watch-dog to corporate abuse to register the domain “.enron†in order to provide the public with information about Enron, Inc. There is no law, trademark or otherwise, that grants Enron, Inc. the uncontested and exclusive right to register that word in a new top domain. On the contrary, trademark law explicitly allows competitors, critics, and others to use a company’s trademarks in order to identify and discuss the company and its products.
Freedom of expression rights protect the non-commercial use of trademarks in language, but ICANN policy circumvents those guarantees by giving trademark holders a prior right to register a domain before non-commercial speakers even have a chance to register the word.
Words are symbols that represent an idea, convey a message, or signal the topic of discussion to others. If a word is not allowed in a top-level domain, it will be more difficult to hold a discussion around that idea or to provide others with information about that idea. So freedom of expression concerns are immediately triggered by an ICANN policy that discourages the discussion of controversial ideas.
Article 19 of the Universal Declaration of Human Rights guarantees the right of everyone to freedom of expression including the right to receive and impart information in any medium and in any frontier. But ICANN is not legally bound by universally recognized free expression guarantees, and sets policy entirely at its own discretion under corporate governance rules.
ICANN’s proposed policy will allow the government of China to prevent the creation of a top-level domain “.humanrightsâ€, especially if it were in Chinese characters, because China’s government finds the idea of human rights offensive. The use of words like “gay†or “abortion†in a new top-level domain name would similarly not be permitted under the proposed policy since some communities find those ideas offensive. It is irrelevant for the regulators at ICANN that the people and lawmakers of the United States have decided that abortion is a protected right. ICANN’s draft policy would allow an objection from the Catholic Church to prevent a top-level domain from using the word “abortionâ€.
Considering the pressure that some national governments have placed on ICANN to encode particular national perspectives into ICANN policy, it is easy to see why ICANN would fall into the trap of a policy that simply imposes all national intolerances cumulatively on the whole world.
This is the key point: ICANN is a single point of global control for the use of language in domain names. ICANN policy affects the entire world. No need to go to national legislatures or international treaty bodies and make the case for a policy of censorship. No need to comply with international conventions or the US Constitution’s free expression guarantees. Indeed such a policy would be ripe for a legal challenge in the US from free expression groups, should the ICANN Board ultimately choose to go down this path.
Ironically, ICANN’s policy will have no impact in countries like China, Tunisia, or Saudi Arabia, that already block access to ideas on the Internet of which the government does not approve. Where ICANN’s policy will have the greatest impact is in countries that currently enjoy free expression because of national law or constitutional guarantees, like the US. It is in these countries that ICANN’s censorship will be felt the heaviest since people who have a legal right to express themselves on the Internet will be discouraged by ICANN policy without ever having a chance to adjudicate the issue and protect the free speech interest.
Rather than have its own legitimacy to govern challenged by powerful countries like China, ICANN will instead place the entire Internet behind ‘the Great Firewall of China’, and do the censoring for China at the top of the information stream.
Besides the negative impact on free expression, ICANN cannot reconcile the fact that nations and regions frequently conflict on issues of morality and public policy goals. The draft recommendations forbid domains that are contrary to morality and public policy. ICANN is in no position to select and impose a universal view of morality on the world, or favor one nation’s public policy objectives over others in domain name policy. The existing proposal is simply not workable from a practical standpoint considering the many competing perspectives in the world.
A policy that asks ICANN board, staff or other administrative panels to adjudicate the worthiness of applicants wishing to register a domain (such as “.godâ€) also creates legal liability for ICANN from those denied domains based on ICANN’s arbitrary policies and subjective choices. Nor is there any public accountability for the decisions of these panels convened to rule on controversial applications.
In summary ICANN’s current proposal for evaluating new top-level domains will result in massive censorship on the Internet, since controversial or offensive ideas will not be allowed in a top-level domain. And the proposal vastly expands the rights of large trademark holders to control the use of language on the Internet, well beyond what US or international trademark law grants to trademark owners.
ICANN’s historical practice of deferring to the intellectual property lobby in setting global domain name policy has consistently provided ammunition to those who would question ICANN’s legitimacy and its ability to govern in the global public interest. ICANN will continue to grapple with a perception of illegitimacy, particularly from the developing world, as long as it operates for the benefit of narrow special interests, while disregarding fundamental freedoms in its policy development process.
For ICANN to remain the appropriate international forum to be entrusted with managing the Internet’s root server, ICANN must stick to its narrow technical mission and keep the core neutral on national policy issues.
Further information on new gtld policy at ICANN:
NCUC’s proposal to amend the draft recommendations to protect free expression (June 2007):
http://www.ipjustice.org/ICANN/062007.html
IP Justice’s webpage on new gtld policy:
http://ipjustice.org/wp/campaigns/icann/gtlds/
ICANN’s webpage on new gtld policy:
http://gnso.icann.org/issues/new-gtlds/
16 March 2007 Draft GNSO Recommendations:
http://gnso.icann.org/drafts/pdp-dec05-draft-fr.htm