Inside Views: Acting To Protect Freedom of Expression At ICANN by Dan Krimm

The continuing saga at the Internet Corporation for Assigned Names and Numbers (ICANN) about policy for approving new generic top-level domains (gTLDs) is entering what may be its final stages this summer. There has been a stream of controversy surrounding the “.xxx” gTLD proposal that was rejected by the ICANN Board of Directors at its March 2007 meeting in Lisbon (see IPW, Internet and Communications Technology, 2 April 2007), and ICANN’s Generic Names Supporting Organisation (GNSO) has continued to work on recommendations for a uniform policy to govern gTLDs, through a special New gTLDs Committee that was set up in a Policy Development Process in December 2005.At the June 2007 ICANN meeting in San Juan, Puerto Rico, ICANN’s Non-Commercial Users Constituency (NCUC) and At-Large Advisory Committee (ALAC) combined to present a workshop on freedom of expression concerns that are at issue in the proposed gTLD policy, including the launch of a new campaign to mobilise public opposition to provisions that involve non-technical criteria for approving or rejecting new gTLDs.The “Keep The Core Neutral” campaign (KTCN) launched with a coalition of over 100 organisational and individual members that signed a petition asking ICANN to “stay within its technical mandate and refrain from embedding particular national, regional, moral, or religious policy objectives into global rules over the use of language in domain names.” At the time of this writing, there are over 250 signatories on the petition, including roughly 100 organisations from both the nonprofit and commercial sectors. This is the first public mobilisation campaign targeting the ICANN policy-making process directly.A final draft report on New gTLD policy was fixed as of 8 August 2007, and ICANN opened a 21-day public comment period from 10 August to 30 August 2007. Anyone with an Internet connection may submit comments on this report at ICANN’s website. KTCN has set up an Action Alert to assist its members and others in preparing comments for ICANN, and it has channelled 40 out of the first 49 comments posted over the first two and a half weeks of the comment period. In particular, KTCN remains troubled by remaining provisions in Recommendation #6 and Recommendation #20 (as well as Implementation Guidelines F, H and P), and encourages members of the public in joining opposition to those provisions.Analysis
Recommendation #6 begins: “Strings must not be contrary to generally accepted legal norms relating to morality and public order that are enforceable under generally accepted and internationally recognized principles of law.” KTCN opposes this recommendation for four reasons:

  1. “Morality” and “public order” cannot be clearly and objectively defined before examining any particular case, thus this recommendation abjectly contradicts Recommendations #1 and #9 which require gTLD evaluation criteria to be transparent, predictable, and fully available to applicants prior to their application.
  2. Because of the inherent uncertainty in evaluating “morality” and “public order” there will be spurious costs associated with gTLD applications to deal with challenges to applications that may appear at all controversial, resulting in a great deal of self-censorship to avoid such costs. This would suppress freedom of expression of citizens across the globe, especially in many cases where “immoral” or otherwise controversial speech is expressly permitted by national law.
  3. ICANN is currently subject to US law under its Joint Project
  4. Agreement with the US government, and any suppression of free speech would be open to legal challenges under US law. KTCN bases its position protecting freedom of expression on the Universal Declaration of Human Rights Article 19, but it happens that the First Amendment is in accord with this principle and in ICANN’s case it has legal authority.
  5. ICANN’s mission and core values relate to relatively narrow technical functions, “in particular to ensure the stable and secure operation of the Internet’s unique identifier systems” including DNS and IP assignments. This recommendation far exceeds the scope of these technical functions and risks turning ICANN into the arbiter of “morality” and “appropriate” public policy (not to mention spuriously acquiring jurisdiction over a portion of trademark regulation) through global rules.

Recommendation #20 states: “An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted.” Implementation Guidelines F, H and P address certain parameters of how such challenge process would operate.KTCN objects to such a broad and vaguely defined challenge process for several reasons. Similar to Recommendation #6, this creates intrinsic uncertainty in the gTLD application process, violating Recommendations #1 and #9. An expert panel is expensive and their composition can easily be manipulated. The definitions of “substantial opposition,” “community,” “established institutions” and “detriment” in Implementation Guideline P are inherently arbitrary and subjective.In short, this challenge process is far too broad and unwieldy to be put into practice. It would stifle freedom of expression, innovation, cultural diversity, and market competition. Rather than follow existing law, the proposal would set up an illegitimate process that usurps jurisdiction to adjudicate peoples’ legal rights (and create new rights) in a process designed to favour incumbents. The adoption of this “free-for-all” objection and rejection process will further call into question ICANN’s legitimacy to govern and its ability to serve the global public interest that respects the rights of all citizens.Next Steps
ICANN states that when this gTLD public comment period closes: “A complete summary and analysis of community feedback will be made available at the end of the comment period, and considered by the GNSO Council prior to its vote on the report on 6 September 2007. If the Council accepts the policy recommendations, it will be then be considered by the ICANN Board.” This is expected to happen as early as the next ICANN meeting in Los Angeles, 29 October to 2 November 2007. Once this policy is in place, it is unlikely it will be addressed again substantively any time soon thereafter. This is the time to act.Public comments can have a significant impact on the Council decision whether to accept the proposal from its New gTLDs Committee in its current form or to require further work (or perhaps to correct it and approve a viable version to send to the Board for consideration). If the Council approves the policies contained in the current final draft report, then the Board will consider it in that form, and at that time the list of names on the petition will be delivered to the Board as it prepares to vote on gTLD policy.Your direct comments and your signature on the petition will both improve the chances that we can prevent bad policy from being made at ICANN. KTCN invites all Internet users to submit comments to ICANN’s public forum, and to join the KTCN coalition by signing its petition. Krimm is Campaign Director for Keep The Core Neutral and Global Policy Fellow at IP Justice, which is providing resources for the KTCN coalition. IP Justice is a member of ICANN’s Non-Commercial Users Constituency.This work is licensed under a Creative Commons License. All of the news articles and features on Intellectual Property Watch are also subject to a Creative Commons License which makes them available for widescale, free, non-commercial reproduction and translation.

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