Another Government Land Grab in the Name Space

Since 1999, governments have asserted sovereignty over the delegation and re-delegation of country code top-level domains (ccTLDs) at ICANN. Such assertions have no basis in international law, but that does not stop them. Now, ICANN has paved the way for them to assert sovereignty and property rights over two letter domains at the second level domain of new gTLDs (2LSLDs). This can even lead to the assertion of disguised ownership claims over common English language propositions such as “in” (.IN is the ccTLD of India).

The rationale for not allowing the 2LSLDs to be freely registered comes from some governments’ belief that registration of such domain name without their oversight is in violation of their domestic public order. Seriously. They also cite other reasons involving a combination of national pride, social welfare, and national security. All, they claim, are endangered by 2LSLDs. We can all appreciate, for example, the national security threat to Puerto Rico posed by a domain name like PR.MEOW. The governmental Don Quixotes have picked up their armor and are on the march against these threats. How could they find ways to intervene with the registration of 2LSLDs? Who gave them the Rociante and armor? This blog post will shed light on these questions.

How it started

In December 2014, ICANN published a general authorization for release of all two-character ASCII labels for all new gTLD Registry Operators.[1] Why did ICANN have to come up with an authorization process in the first place? ICANN claims that the GAC asked the Board and the Board obliged. But this claim is not supported by the GAC’s own communiqué, which said: “The GAC is not in a position to offer consensus advice on the use of two-character second level domains names in new gTLD registry operation.”[2]

So point number one is that the policy of giving governments far-reaching sovereignty rights and property rights over two-letter strings in the second level of new TLDs not only has no basis in Generic Names Supporting Organization (GNSO) policy, it isn’t even based on consensus advice from the GAC. Instead, the Board asked ICANN staff to take some measures responding to the GAC communiqué and the staff invented a policy. The staff-invented process requires the registry to fill in an authorization form for a domain name that at the second level has the same characters as a ccTLD. For example, if someone wants to register the domain name IN.LOVE, after receiving her/his request the registry has to fill in an authorization form and get the approval of the respective government or ccTLD operator! Because the government of India’s ccTLD is .IN, India asserts sovereignty over the proposition “in.” Governments even see the registration of two letters, which happened to match their country code as a threat to their national identity. How can anyone be owning and running TW.DIET which can: “dwarf the national dignity” of Taiwan, and can be in “violation of public order or good social custom.”[3]

Asserting property rights and sovereignty over two letters

 ICANN has gathered all the comments on these unreleased domain names, made by governments and ccTLD operators. It is quite clear that some governments believe that they have sovereignty or/and property rights over the two letter second level domains, just because they match with their country code.

For example, the Italian GAC representative commented on a bunch of it.examples (Italy’s country code domain is “.it”) and said:

“Italy does not object tout-court to the delegation of our ccSLD, but wants to exercise the right to evaluate the delegation of “it” as a SLD on a case-by-case basis. The evaluation process takes into account not only the confusion risks, but also the national and international legal framework (e.g. IPR) and opportunity considerations (e.g. it.sucks).”

Thus, Italy is claiming to own the word “it” and also a right to protect itself from the freedom of Internet users to express their view that Italy – or anything that might be designated by “it” – sucks. India does not even compromise and objects to all the SLDs that use ‘in” and “1n.” It says:

“India is not favoring the release of Two-Character ASCII Labels “in”, “ln” , “1n” and deceptively similar to “.in” as the ccTLD at the second level. ICANN is requested that India’s objection on release of Two-Character ASCII Labels “in”, “ln” and “1n” at the second level should apply to all current and future requests from new gTLDs.”

Taiwan sees the assignment of these 2LSLDs as a matter of public order. It says: “ Since “tw” label is the country code for Taiwan, the use of “tw” as SLD under these diverse New gTLDs would create confusion or concerns at multiple levels on our part, which include, but not limited to, ”dwarfing national dignity”, “violation of public order or good social custom”, “affecting the rights of domestic enterprises”, and “being prone to produce perplexity to our disadvantage”.

The other interesting case is Portugal. Portugal’s country code is .PT. PT can be also a medical abbreviation for physical therapy. But Portugal believes that all PT.newgtld should be either run by the government of Portugal or the registrant should be approved by the government, it states that:

“3) others (2lSLDs) should remain reserved so that can only be assigned to a person, entity or corporation proposed or accepted by the Portuguese Government, which demands consultations with the Portuguese Government.”[4]

Granting property rights

Recently, ICANN staff in liaison with the governments and registries came up with 3 criteria which the registries need to observe with regards to the registration of 2LSLDs. If these criteria are adopted, all the 2LSLDs, which are held up until now, will be released.

However, ICANN’s approach to solving the problem grants the ownership of these domain names to 2LSLDs. This is evident in criterion number 1 which reads:

“EXCLUSIVE AVAILABILITY PRE-REGISTRATION PERIOD

Registry Operator must implement a 30-day period in which registration of letter/letter two-character ASCII labels that are country codes, as specified in the ISO 3166-1 alpha-2 standard, will be made exclusively available to the applicable country-code manager or government. [….] The Registry Operator commits to affirmatively reaching out to those country-code managers and governments to provide notice of the Exclusive Availability Pre-Registration Period, including dates and registration process.”

This criterion makes 2LSLDs exclusively available to both states and ccTLD operators for 30 days. It also requires the registries to actively reach out to ccTLD operators and governments and let them know that the 2LSLDs are available and they can take them if they want.

.Brands can go free

It seems like all new gTLD registrants are subject to the exclusivity criterion, but one type of new gTLD is exempted: Brand top level domains. They do not have to give the exclusive rights to the governments or ccTLD operators. Seems like ICANN’s policy blatantly discriminates against the generic names.[5]

Private ccTLD operators

ICANN’s rationale for taking measures and not allowing the activation of 2LSLDs was to address GAC’s concerns and overcome some governments’ objections to registration of 2LSLDs. But the criterion it has considered, perhaps unknowingly, gives exclusive rights to the registration and delegation of 2LSLDs to private ccTLD managers that have nothing to do with governments at all and are businesses. This confused approach clearly shows the lack of well-grounded justification for granting such exclusivity.

 Can we stop them?

ICANN asked for public comments on its proposed policy for releasing the 2LSLDs. The public comment period has now ended. At the Non Commercial Stakeholder Group at ICANN, we drafted a public comment, which addressed this issue and we objected to the proposed criteria. But, it might not be too late for those governments, private sector and civil society organizations in opposition of these criteria to file public comments against these criteria and stop some governments arbitrarily become the owners of 2LSLDs and assert sovereignty over their registration.

Notes:

[1] https://www.icann.org/resources/two-character-labels

[2] GAC Communique, LA, Paragraph 8

[3] By Lin, Mao-Shong, Deputy Director, Ministry of Transportation and Communications TW comment, Two-Character Letter/Letter Label Comments and Mitigation Measures, https://www.icann.org/resources/two-character-comments?page=3

[4] https://www.icann.org/resources/two-character-comments?utf8=%E2%9C%93

[5] ICANN notes on the exclusivity criterion that: TLDs with an executed Specification 13 or Exemption from Specification 9 – Code of Conduct are not obligated to implement this measure based on the fact that all registrations in the TLD must be registered exclusively to Registry Operator, its Affiliates or, if applicable, its Trademark Licensees. See Specification 13 at https://newgtlds.icann.org/en/applicants/agb/base-agreement-contracting/specification-13-applications.