GAC backs off TLD censorship a bit. But not enough.

An official “Indicative Scorecard” has been posted in advance of the Feb. 28 showdown in Brussels between the Governmental Advisory Committee (GAC) and the ICANN Board. The “scorecard” is intended to identify the areas where the small number of governmental officials who participate in GAC differ from the positions developed by ICANN's open policy development process. The scorecard constitutes a not-so subtle threat that ICANN should throw out its staff- and community-developed policies and make them conform to the GAC's preferences.

Amusingly, the so-called GAC position follows almost verbatim the text submitted as the “US position” back in January. It's clear that the US calls the shots in GAC and that other governments, including the EU, are cast in the role of making minor modifications to U.S. initiatives.

There is one interesting modification, however. The new GAC scorecard still allows GAC to conduct an initial review of all new top level domain applications and still allows any GAC member to object to any string “for any reason.” But GAC has been publicly shamed into pulling back from the U.S. government's recommendation that a single GAC objection, if not overruled by other governments, would kill the application. Instead, the GAC as a whole will “consider” any objection and develop written “advice” that will be forwarded to the Board. This would put such advice in the framework of ICANN's bylaws, and thus the advice would not be binding on the board.

Though it is an improvement over the arbitrary censorship first proposed by those freedom-loving American officials, these modifications are inadequate. Allowing GAC to issue an opinion on individual applications is not “policy advice.” A policy is a general rule or guideline concerning what is acceptable and what is not. A policy should allow applicants to have a good idea what would be allowed and what would not be allowed in advance of preparing their application. The March 2007 GAC Principles Regarding new gTLDs constitutes a legitimate form of policy advice, the GAC scorecard does not. Among the principles the 2007 GAC affirmed was,

“All applicants for a new gTLD registry should be evaluated against transparent and predictable criteria, fully available to the applicants prior to the initiation of the process.”

That principle was duly incorporated as a guideline during ICANN's policy development process. Now the governments are telling us they want to be able to oppose individual applications for “any reason” and that the reasons can be invented after the application has been made. That kind of arbitrary, ex post standard is not consistent with the idea of transparent and predictable criteria. In its lust for control over the name space, the US government is willing to flout the very principles it articulated itself at an earlier time.

If you think “lust for control over the name space” is too strong a term, you probably haven't read the GAC scorecard. The GAC asserts that applicants for TLDs should have to prove that their proposals have economic value. Anyone familiar with economic regulation knows that this kind of “presumed guilty until proven valuable” standard is anti-market and anti-innovation. Economic value is never self-evident and the final arbiter of value is success in the marketplace, ex post, not the judgment of a bunch of ICANN staff members or government bureaucrats. The Internet protocol itself would not have been able to demonstrate conclusively its “value” prior to its implementation.

The GAC wants governments to be able to exercise sweeping powers over geographic names and to create new forms of trademark protection. While it hypocritically appeals to governments' allegedly legitimate role in developing law and public policy, the simple fact, often overlooked in these discussions, is that there are no internationally applicable laws supporting the governments' claims, and the laws that do exist do not translate into the rights-protections mechanisms they are proposing. If governments want to assert “public policy authority” over these areas, they should develop international treaties and get them ratified by their national legislatures. That, however, would require real due process and real public support. Obviously our GACritters prefer to make arbitrary claims of authority.  

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