27 February 2007
Power-Grab: ICANN to Become Internetâ€™s “Word Police”
Robin Gross, IP Justice Executive Director
Milton Mueller, Professor at Syracuse University & Partner, Internet Governance Project
Top-Level Domain Policy to Bypass National Sovereignty and Free Speech
Civil Society Proposes Amendment to Protect Civil Liberties and Innovation
ICANNâ€™s Non-Commercial Users Constituency (NCUC) submitted a proposal to protect freedom of expression and innovation in the introduction of new generic top-level domains (gTLDs). ICANNâ€™s policy council, the Generic Names Supporting Organization (GNSO), is currently developing policy recommendations to regulate the introduction of new top-level domain names on the Internet.
NCUC is troubled by the GNSOâ€™s draft recommendation to create string selection criteria that would prevent the registration of a new gTLD string that contains a controversial word or idea. In the 13 February 2007 GNSO draft report, proposed Term of Reference 2(v) of the string criteria states that â€œthe string should not be contrary to public policy (as set out in advice from the Governmental Advisory Committee)â€.
According to the GAC guidelines: â€œNo new gTLD string shall promote hatred, racism, discrimination of any sort, criminal activity, or any abuse of specific religions or cultures. â€¦ If the GAC or individual GAC members express formal concerns about a specific new gTLD application, ICANN should defer from proceeding with the said application until GAC concerns have been addressed to the GACâ€™s or the respective governmentâ€™s satisfaction.â€
Unless reformed, this ICANN policy will prevent anyone in the world from being able to use controversial words like â€œabortionâ€ or â€œgayâ€ in a new gTLD if a single country objects to their use. The proposal would further prevent the use of numerous ordinary words like â€œherbâ€ and â€œjohnâ€ in a string since they can have an illegal connotation in certain contexts.
In addition to any country in the world being able to stop a new gTLD string, ICANN staff would also be able to prevent any idea that it deemed too controversial to exist in the new domain space. The 13 Feb. proposal (Term of Reference 2(x)) gives ICANN staff the important job of making preliminary determinations as to whether a string is inappropriate and who the â€œlegitimate sponsorâ€ of a domain name (such as .god) should be.
NCUC proposes to amend the GNSO draft policy so that only the legal restrictions in the national jurisdictions of the string application in question will apply to the particular string. Under NCUCâ€™s proposal, national law would be the measure for what words are permitted to be registered in any particular nation, not ICANN policy.
NCUCâ€™s proposal recognizes the reality that there are competing standards of morality and competing public policy objectives and that ICANN should not try to set a universal standard. NCUCâ€™s amendment better protects freedom of expression, since only those words and ideas that are actually outlawed in a particular nation could not be registered in that nation.
Instead of engaging in censorship in the new domain space, ICANN policy should respect international freedom of expression guarantees. Article 19 of the Universal Declaration of Human Rights guarantees that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” ICANN should adhere to the principles of Article 19 and permit the registration of lawful, but controversial strings in the new gTLD space.
Besides free expression, NCUCâ€™s proposal also protects national sovereignty, and the right of nations, not ICANN, to decide what words may be used in their jurisdictions. The current draft report would usurp the right of an individual nation to permit the use of words in its own country that are controversial in other countries.
Rather than blanketly applying 240 nationsâ€™ cumulative restrictions on speech onto every country, NCUCâ€™s proposal is more narrowly tailored to limit only those words that are actually illegal where registered.
Milton Mueller, Professor at Syracuse University School of Information Studies and NCUC Executive Committee member said, “There has always been a danger that ICANNâ€™s exclusive control of Internet identifiers would be used as leverage to enforce extraneous policies. ICANN needs to stick to its narrow, technical coordination role, We need to protect the Internet from globalized, centralized regulation.”
The current GNSO proposal is further flawed because it is framed from an irrelevant 1883 treaty on trademarks that is inappropriate, both because of its archaic origin and because trademark law is intrinsically a narrow legal paradigm that does not extend to a full vision of societal benefits and rights. Most notably, trademark law is not designed to regulate non-commercial speech, which is vast majority of online communication.
NCUCâ€™s proposal to amend Term of Reference 2 (v) is the main proposal in a group of 5 NCUC proposals to reform the policy recommendations in the 13 Feb. GNSO draft report. It is possible that ICANNâ€™s GNSO Policy Council will vote on draft final report as soon as the next ICANN board meeting in Lisbon in late March 2007.
NCUC urges individuals and organizations that are concerned with protecting free expression and innovation to contact ICANN Board Members and their national representative of the Government Advisory Committee (GAC) to express their concerns about the current draft and support for NCUCâ€™s amendments.
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