At the Brussels meeting between ICANN's Board and its Governmental Advisory Committee (GAC), a fascinating and important discussion took place over the right of ICANN to censor or restrict the kind of words that can be used as top level domain names. The issues being debated here have profound implications for global regulation of internet content.
First, some background. In 2007, the GAC established some “public policy principles” that it thought should guide the new TLD process. Included among them was the idea that TLDs could raise national, religious, cultural, and linguistic “sensitivities.” Various governments proposed that they should be able to object to or veto proposed domain names. The U.S. Commerce Department joined authoritarian governments in voicing these concerns and demanding some kind of policy to respond to them.
ICANN's staff obligingly searched for a legal rationale for censoring domain names. Eventually it came up with a 19th century trademark treaty that allowed national governments to refuse to recognize a trademark on the grounds that it conflicted with their local definition of “morality and public order.” This phrase became acronymized to MAPO.
Civil society advocates within ICANN mounted a campaign against the “morality and public order” MAPO restrictions in the corporation's new top level domain program. Among other things, they pointed out that there were no globally applicable standard of “morality and public order” and that ICANN's attempt to censor top level domain names on that basis was nothing less than an act of fiat global legislation. It was a form of legislation, moreover, that could very easily be used to violate the free expression rights that were supposed to be guaranteed by its own national laws such as the US First Amendment.
The civil society concerns, as so often happens in ICANN, were dismissed as inconvenient. Staff member Kurt Pritz simply ignored repeated requests from then-NCUC Chair Robin Gross to discuss the flaws in the legal rationale. Registries and registrars, while privately expressing their sympathy, were more than willing to sacrifice free expression rights in order to get on with the business of getting new top level domains.
Now, suddenly, at this ICANN meeting – three years later – the US government has “discovered” that MAPO is “unworkable.” Their argument is irrefutable. Suzanne Sene, the US GAC representative, explained it clearly in yesterday's meeting. MAPO was “lifted out of the Treaty of Paris, which allows countries to take an exemption from a Trademark on the grounds that it raised morality or public order concerns in their country.” In other words, the treaty was an exemption process that allowed any sovereign to determine how they applied their own standards of morality and public order to internationally recognized trademarks. Flipping this exemption to become a positive foundation upon which a panel will make decisions about what names are allowable simply does not work. “There are no agreed definitions of morality and public order,” Sene said. “The treaty of Paris enshrines that fact by allowing each country to take exemptions from internationally recognized trademarks on that basis. So we think,” Sene concluded, “it is completely unworkable.”
Lest one come to the erroneous conclusion that the US Commerce Dept has suddenly become concerned about freedom of expression, Sene went on to complain that “Some sensitivities would not even be captured by a MAPO standard,” she said. “There would be a lot of people, for example, who would feel very, very strongly if names of religions were registered.” Obviously, the name of a religion – .catholic or .islam – could not be considered as violating morality and public order (except perhaps in a country populated by militant athiests)!
Sene seemed to be speaking for the GAC as a whole. The ICANN Board seemed stunned. Board Chair Peter Dengate Thrush said, “does the GAC have a view as to how we should follow its recommendation? If you don't like the way we did it, give us some advice on how to do it.”
The EU's William Dee replied that “the bylaws don't say we only give advice when we have a better solution. We have given advice, it is that the method is unworkable.” He concluded by saying that he “doesn't feel GAC has responsibility to find a solution.”
Despite all the Board's consternation and the long discussion of the absence of proposed solutions, the solution is obvious. It is, simply, to throw out MAPO altogether and proceed without a replacement.
Even without MAPO, there are still several mechanisms built into ICANN's new gTLD process that could be used to prevent troublesome domains (probably too many, but that's another issue). Board member Dennis Jennings pointed out that the “objection process” in the TLD application process would allow some “sensitive” names to be blocked. Jennings asked whether the GAC thought the objection process was a sufficient safeguard. “Has that been discussed? In what regard is it inadequate?” No answer from the GAC. And even though the Paris Treaty is unworkable, the international conventions against discrimination on the basis of race or gender and against child pornography, which already make certain forms of conduct illegal, might be used to block domains invoking racial slurs and illegal forms of pornography. So MAPO is not only unworkable, it is unneeded.
However, the Board's thinking about this was scrambled by its adherence to an unwarranted assumption. The prevailing thinking was expressed by Rita Rodin, who said “I don't want to start a tld that people are going to start blocking.” This view was echoed by other Board members and governmental representatives.
In fact, the assumption that ICANN can only select TLD strings that no country, or no autonomous system, will ever block is completely irrational. It sets an unattainable standard and makes a solution to the problem of sensitive or troublesome domain names impossible. It is as silly as saying that a global gatekeeper should review and pass on all internet web sites in order to make sure that no countries block web sites. As a cure to the problem of blocking, such a review process would be worse than the disease. It would amounmt to a kind of prior restraint that would end up blocking more material than any ex post blocking actions.
Top level domains are already routinely blocked, both by countries and by organizations. There is nothing ICANN can or should do about this – it is a local decision. The TLD for Israel, for example, is blocked by certain anti-Israel states. Does this mean that some committee should have refused to put the Israeli ccTLD into the root? This example makes it clear how crazy is the notion that TLDs should be censored or filtered in order to “prevent” blocking.
We may regret TLD blocking when it is done for censorship reasons or when it is imposed arbitrarily or in ways that make the lives of users more difficult. But there is little ICANN can do about the operational decisions of the thousands of autonomous systems connected to the internet – and it is well outside ICANN's remit to even worry about that.
ICANN's Board must accept a simple fact: there are going to be TLDs – and content on TLDs – that some people, governments or organizations will not like. Some of those organizations will respond to the creation of content or names they don't like by blocking them. ICANN cannot solve this problem, and it is not ICANN's problem to solve.
To conclude, we cannot avoid saying that we are deeply suspicious of the US government's sudden attack on the MAPO standard. This has been in place for almost two years. We are also suspicious of the “avoid blocking” argument as a constraint on developing a response. We suspect that the US, along with authoritarian governments, are looking for a much broader and more discretionary standard for allowing governments to censor TLDs, and is using “blocking” as an excuse for doing so. We also suspect, though do not know for sure, that raising the MAPO issue could be part of yet another attempt to further delay the addition of new top level domains. The answer to the conundrum is clear and obvious: MAPO is not needed and there are already plenty of restrictions and objection processes built into ICANN's new TLD process. The idea that ICANN's policies can somehow preempt all attempts to block domains is an unattainable goal that should not be exploited to prevent us from adopting this clear solution.
Finally, we note that in this whole discussion, not a single government mentioned free expression rights in the discussion. Only Gonzalo Navarro, a Board member from Chile, had the integrity and presence of mind to note that “There is such a thing as freedom of speech. We need to ensure during this process.” Thank you, Mr. Navarro.