IP Justice Comments on GNSO New GTLD Committee Recommendations – 30 August 2007

IP Justice supports the introduction of new generic top-level Internet domain names as quickly and as broadly as possible. However, we are deeply concerned about recommendations put forth by the GNSO New GTLD Committee (and ICANN) for evaluating applications will stifle free expression on the Internet.  The recommendations would create a policy of censorship on the Internet where controversial and offensive ideas can be banned at the top-level, despite numerous longstanding national and international freedom of expression guarantees.

The illegitimate system of governance proposed by the recommendations violates the sovereignty of nations and the civil rights of Internet users. ICANN usurps the rights of states to decide what ideas may be expressed within their borders and who is entitled to express them.

ICANN and its proposed expert panels have no legal authority to decide what ideas people may express.  Nor does ICANN or its experts have any legitimacy or authority to adjudicate competing legal rights. The proposal makes a mockery of democracy, since these structures exist entirely outside of legitimate lawmaking institutions.

The committee’s proposal is also unworkable in practice and would create enormous legal liability on ICANN for its denial of lawful speech on the Internet.  The half-baked proposal creates a virtual veto for established institutions over any application for a new GTLD that any such institution did not like, something entirely unprecedented in law or society.

IP Justice supports the comments of the Non-Commercial Users Constituency (NCUC) and shares NCUC’s objection to Recommendations #6 and #20 (and their related implementation guidelines).  IP Justice recommends that lawful speech be permitted at the top-level and that ICANN leave deciding what is ˜lawful’ up to legitimate democratic lawmaking institutions.  New GTLDs should be awarded on a first-come, first-serve basis, and the only criteria for ICANN to evaluate should be of a technical/operational nature.

Recommendation #6

Recommendation #6 proposes that domain name applications be evaluated for their ‘˜morality and public order’, an entirely nonsensical proposition that violates the free expression rights of Internet users around the world.

The committee’s approach of including general references to international conventions and treaties is meaningless.  The Universal Declaration of Human Rights and European Convention on Human Rights (among other international agreements) give freedom of expression predominance subject only to limits prescribed by law and necessary in a democratic society for one of the enumerated purposes. IP Justice objects to any attempt that ICANN create and apply a standard of ˜morality’ on Internet users.  We also object to the failure to recognize its relativity to freedom of expression guarantees. The committee grossly misunderstands the relationship between trademark law and free expression.  Trademarks are a state sanctioned monopoly on words for commercial purposes only.  There is no consensus on the regulation of non-commercial speech in international law; and trademark law is not the appropriate analogy for deciding what words may be used on the Internet.

No efforts have been made to regulate behavior based on morality in international law, whether by Convention or Treaty for obvious reasons.  Democracies do not have laws requiring people to speak or behave morally.  Most democracies constitutionally (or otherwise) separate Church and State and enshrine freedom of conscience.  There is therefore no secular morality, only laws. We note that unfortunately the Governmental Advisory Committee (GAC) is still pushing for an even more subjective and unpredictable standard: mandating respect for ‘sensitivities.’

Criticism, satire, parody of others and their beliefs are a fundamental tenant of Freedom of Expression, which includes the right to offend.  There is no right to not be offended in democracies. Let’s be clear, this recommendation is really a veto for repressive governments who wish to ban lawful, but controversial, speech. See GAC Principle 3.3: If individual GAC members or other governments express formal concerns about any issues related to new gTLDs, the ICANN Board should fully consider those concerns and clearly explain how it will address them.

Note also the acknowledged shift in GAC’s language in its 28 March 2007 Principles Regarding New gTLDs from GAC’s Operating Principles, as amended, Mar del Plata, April 2005.  Whereas formerly it was all about public resources to be managed in the interests of the global Internet community, now it’s all about State Sovereignty:  These principles shall not prejudice the application of the principle of national sovereignty, policy authority … is the sovereign right of States.  They have rights and responsibilities for international Internet-related public policy issues.

Call it morality, public order, sensitivities, or whatever. If a member of GAC doesn’t like a proposed string, ICANN staff and/or the Board (and their experts) will decline it.  Will the domain names .FalunGong or .FreeTibet offend anyone’s sensitivities?  What about .GayRights or .ChechenIndependance?  Are these domain names objectionable on moral grounds?  They certainly will cause a public order problem for many governments who wish to repress these ideas.  And democratic societies who enjoy the legal right to promote those ideas will be prevented by ICANN of expressing that idea at the top-level of the Internet.

How this will operate in practice given the proposed Implementation Guidelines provide ICANN staff make initial determinations and the Board has final decision on string criteria?  How will informal lobbying and politicking be avoided when Governments do not want to be seen to have objected? One must look closely through all the fine but opaque words in preambles, expensive procedures, purported transparency and consultation, endless committees — all designed to cloak this process with legitimacy, to see the massive censorship that is really proposed by Recommendation #6.

We join in the comments of so many others who object to morality and public order as domain name evaluation criteria.

Recommendation #20

Recommendation #20 will ensure that virtually no new GTLDs will be approved and only well financed established institutions will be awarded the few that can pass the test.  We oppose the ˜substantial opposition’ criteria in Recommendation #20.  It’s a veto for the powerful and the noisy.  It requires applicants to reach a consensus with all.  This is unprecedented and totally incompatible with the health and growth of the Internet.

There is no precedent in law anywhere for granting rights to ‘established participants’ while denying them to new entrants.  It’s discriminatory and anti-competitive and would be struck down as such in most democratic legal systems. Like so many of ICANN’s policies, the recommendation is intended is to favor incumbents.  What about the expressed values of promoting competition, depending on market mechanisms to promote and sustain a competitive environment, respecting the creativity, innovation made possible by the internet?

In case there should be any misunderstanding “or noble examples “the Implementation Guideline makes it quite clear that Community includes an economic sector.  This is grossly objectionable in economic and legal theory.  We also note that explicit targeting is entirely vague”so it’s impossible to predict when an economic sector might regard itself as targeted by an innovative idea by a new market entrant”and move to quash it.  Creating rights for language, religious, and other communities to domain names violates the rights of others to use words those words and is yet another deviation from international law proposed by the recommendations. Decisions to deny a new GTLD must be appealable to a legitimate lawmaking institution, such as an applicant’s national court, in order to ensure that applicant’s rights are respected in the process.

In conclusion, Recommendations #6 and #20 undermine any attempt to create a process that is predictable, objective, and transparent for the evaluation of new GTLDs.  It appears these goals are mere rhetoric and the reality is a system of arbitrary censorship and illegitimate authority. IP Justice recommends that ICANN not engage in the extreme mission-creep proposed by the committee, and instead respect the rights of Internet users to express themselves to the fullest extent of the law. If respect for free expression is not enough to motivate ICANN to uphold the rights of Internet users, perhaps the crippling lawsuits that the proposal invites will.