ICANN confronts Free Expression Debate

At the San Juan, Puerto Rico ICANN meeting today a large audience turned out for a workshop organized to discuss the free expression implications of ICANN's proposed policy for adding new top level domains. The issue has proved controversial because governments and ICANN staff are concerned about the appearance of controversial words or concepts in the domain name space. Some of them were traumatized by the .xxx debate and think they can get around those problems simply by blocking TLD applications that might be “offensive” or “sensitive” to some people.
ICANN staff searched very hard for international law and treaties that would justify these actions. One was a 19th century trademark treaty known as the Paris Convention which excludes from trademark registration words that are “scandalous” or contrary to “generally accepted legal norms relating to morality and public order.” Until we insisted on amendments, the report also selectively quoted the UN Charter on Human Rights, avoiding the free expression guarantees of Article 19. The main problem, however, was the U.S. government-supported GAC principles, which among other things tried to give governments a veto power over any new TLD and required that any proposal respect “the sensitivities regarding terms with national, cultural, geographic and religious significance.” These were seen as opening the door to casual censorship based not on law but opinion and preference.
Moderated by Robin Gross (IP Justice, Noncommercial Users Constituency), expert speakers challenged the proposed policy’s challenges to freedom of expression and an open and neutral administration of Internet core resources.
Everyone on the panel recognized that different standards regarding appropriate expression exist throughout the world. Wolfgang Kleinwachter asserted that in order to overcome this problem that ICANN needs to “build a community” and reach consensus within it. I disagreed with this. Individuals or communities interested in expressing themselves shouldn’t need the prior approval of their ideas by a community (and a massively heterogeneous global community at that) to publish a name or content on the internet. A principle of tolerance, not community consensus, should rule. ICANN must be a neutral technical coordinator and leave to national law, and edge-driven applications, the ability to control the content to which users are exposed.
Trademark law expert Christine Farley of American University showed that even the trademark-related claims of the proposed policy were hollow. The broadest and most current international intellectual property treaty, TRIPS, does not mention morality and public order. The Paris convention, which is cited in the proposed ICANN policy, permits countries to use that standard, but does not require them to. It is not a restriction on either the use or the protection of a trademark. A company could adopt a TM based on scandalous or immoral words, but could not federally register it. They would not be prohibited from using the word. The restriction is little used in law, and always used in context, never just by taking the word alone. And the Paris standard is only used by third parties to raise objections, it is not used by the TM office to throw out applications.

4 comments

  1. Anonymous

    DNS is the addressing system for the Internet, it's certainly at the “core” of the Internet. I'm not sure whether it matters whether DNS is a “resource” or not, but it is certainly important to all operations of Internet applications. It's not about whether domain names are “words” or not — they serve a critical identification and filtering function, and who controls that function is what is at issue here. The less central the control, the better, ad ICANN places itself at the very center thus it ought to minimize its control to matters it can actually address effectively like technical/operational criteria.
    Your use of the word “core” is not what is meant in this context, and the word “words” is too non-specific to have useful meaning here.

  2. Anonymous

    All along I've been thinking IP addresses were the addressing system of the Internet, silly me!
    DNS is a “hack” on top of the addressing system, a good hack though, but it probably won't always be with us in it's present form.
    Anyway you are right about the word “words”, I should have used “strings of characters”, which aren't always, but can be, words.

  3. Anonymous

    Calling DNS a “hack on top of” IP addressing seems a bit disingenuous to me. DNS is not going away any time soon. You may as well compare assembler with a high-level programming language, or perhaps even machine language with assembler.
    This is splitting hairs for rhetorical purposes, but not fundamentally contradicting the point that control of DNS makes a difference as long as it remains the primary location identifier used by Internet applications, and there is realistically no end in sight. People were calling DNS a flash in the pan years ago, but alternative paradigms like keywords have not taken off.
    And at such time when DNS is replaced by an alternative (hopefully an improvement), do you expect that ICANN will not take ownership of that as well, and all the issues that derive from DNS today will not continue to be a serious policy issue deriving from the new paradigm at ICANN?
    Doubtful. This is ultimately about legitimacy of policy processes at ICANN (and the alternative of locating those processes in other political venues where the issues extend beyond purely technical and operational matters), not about the specific paradigm that is currently triggering the debate.