Three little ICANN atrocities that make the ITU look good by comparison

December 1st marks the beginning of the World Conference on International Telecommunications (WCIT) in Dubai. Fussing about the threat to the Internet posed by the International Telecommunication Union (ITU) is reaching that state of critical mass where media outlets write about it mainly because other media outlets are writing about it. The tacit assumption behind much of this fussing is that the status quo, exemplified by ICANN and other “multi-stakeholder institutions,” is doing a wonderful job and we should strive to preserve them.

But the status quo is not so wonderful. In the past two weeks ICANN’s board and CEO have made decisions that are so bad they call into question its very legitimacy as an institution. And the governments participating in ICANN seem to be hell-bent on proving that the threat of arbitrary and uninformed governmental interference is more likely to come from inside ICANN than from the ITU.

Here are the disturbing facts.

The GAC suppresses speech.

The first atrocity is the GAC and its “early warnings” against new TLDs. The GAC has always lusted after the kind of arbitrary power that would allow it to veto domain names that certain members don’t like (or that some well-financed lobbyist tells them not to like). GAC members – led by the US – have resisted any effort to tie TLD objections to established international law. They want to be able to veto things free of any law or pre-defined rules, because any attempt to formulate such laws would constrain them and lead to obvious conflicts with well-established human rights law.

So now we have a bunch of “early warnings” from governments. These warnings are little more than signals that certain governments don’t want certain words or concepts to be published as domains. In the context of WCIT, it is very important for everyone to realize that it is not Russia, China or India that is leading the charge for new forms of censorship. No, the prize goes to Australia. Australia accounts for about half of all early warnings. It objected to the proposed domains .fail, .sucks, .gripe and .wtf on the grounds that they have “overly negative connotations” and lack “sufficient mechanisms to address the potential for a high level of defensive registrations.” It is hard to overemphasize what an incredible assault on free expression the Australian position is. As things stand, I can write that Australia sucks; I can register australiasucks.com; I can publish a book with the title Australia sucks! I can say “Australia sucks” to whoever will listen (and will be sure to do so next time I encounter that country’s GAC representative). But this supposedly free and civilized nation is telling the world that if you want to have a website that says the same thing under a memorable domain name, you shouldn’t be able to. And why? Because it’s “overly critical” – and we all know that there is no place for critical speech on the Internet, right? The concern about “defensive registrations” is a weak attempt to rationalize the censorship. Defensive registrations, in this context, simply means that companies that want to preempt criticism of themselves or their products by registering their own name in a gripe site space would have to pay, oh, $20 a year to do so. How terrible.

It’s shocking that the Australian government is more solicitous of the targets of gripe sites than it is of the human right of free expression.

Whoever talks to the board last, wins

The second atrocity centers on process and accountability. On Wednesday, ICANN’s board of directors gave the International Olympic Committee, the Red Cross and a bunch of intergovernmental organizations extraordinary powers over the registration of names under the new top level domain names (TLDs). This was done by board fiat. There was no policy process to support it; in fact, it reverses an earlier resolution by the board, pre-empts a policy development process that is already underway, and overrules a resolution by ICANN’s own domain name policy making organ, the GNSO Council. So ICANN delivers yet another concession to trademark maximalism by brand interests that don’t really need it. But even if you set aside the policy (de)merits of this decision, from a process point of view it is a massive setback to ICANN’s attempt to become a stable, legitimate policy making institution.

This decision shows that ICANN still has no settled policy making process, and that there really is no “bottom up process.” All of ICANN’s formal, bottom-up representational structures and policy development processes are bordering on irrelevancy. Everything is up for grabs  and the board, the CEO or powerful governments in the GAC – i..e, the top, not the bottom – can decide whatever they want, whenever they want.

Why has the board done this? It’s simple. It has been lobbied incessantly by a few well-funded interest groups demanding special privileges, privileges that the board itself has already ruled they don’t need. And it has been pressured by governments in the GAC, mainly the US and UK. Instead of finding consensus and justice among contending interests using its own policy development process, ICANN is choosing to buy support for itself by making concessions to what it perceives as power players.

Fadi’s digital Bonapartism

The third atrocity is another case of ICANN jettisoning its policy making process and making arbitrary, political, top-down decisions. Two weeks ago ICANN’s new CEO, Fadi Chehadi, gave business lobbyists yet another bite at the policy apple after he was heavily lobbied at the Toronto meeting. In a set of demands issued in mid-October, trademark interests asked ICANN to discard years of prior policymaking and compromises and create new forms of protection. He called a special meeting in Los Angeles – a meeting that was not open to everybody and which, due to short notice and the expense of travel, had extremely unbalanced representation. The so-called “strawman proposal” that emerged from this meeting was already addressed in an earlier blog post here.

The worst part of this is that ICANN’s new CEO seems utterly clueless as to why global governance institutions should not behave in this way. Chehadi does not seem to understand that neither ICANN the corporation nor its CEO is a policy maker or “decider;” ICANN the corporation is supposed to be a vehicle for convening a global community to make policies, using structured and balanced forms of representation and a fixed, fair process. By discarding process and improvising, Chehadi probably thinks he is a hero riding to the rescue to cut through problems blocking implementation; in fact, he is just pioneering a new form of Bonapartism. We don’t need guys on white horses with grand delusions that they can solve the problems of democracy with a coup. This has dangerous implications for the future, given ICANN’s lack of structural accountability.

What happens when ‘early warnings’ come late?

In this grim scene, we can look to the bumbling European Commission for comic relief. On November 27 it sent a letter to the ICANN board with a “non-exhaustive” list of 58 top level domains that “might possibly” be of concern. But since the cutoff for early warnings was November 20 and the EC missal came 7 days later, the hapless EC GAC representative insisted that “this letter shall not be considered in any way or form as representing an “Early Warning” to the applicant…”

With crazy things like this going on at the Internet’s core DNS, the supposedly grave threats to the Internet emanating from the ITU’s WCIT process seem rather remote and abstract. This blog post is not intended to support or rationalize anything proposed in Dubai: our position on that is clear. It is, however, intended to serve as a stern reality check on those who would the use of WCIT and the ITU as bogeymen to divert our attention from serious problems with the Internet governance status quo.


7 comments

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  2. James Carlson

    I have no iron in the ITU-versus-ICANN fire, and I certainly agree with you about some of ICANN’s problems, but I think this posting is missing the point on defensive registrations.

    The problem is that the current system allows extortion as a business model, and Australia (for whatever other faults they may have) is right to object to the TLD expansion on those grounds.

    For a fee of $185,000, people and organizations can buy the right to register a new TLD, and then begin to shake down existing domain name holders. “Dear Mr. IBM,” such a letter would read, “we own the ‘sucks’ TLD and we know you don’t want to see anyone register ‘ibm.sucks’ as a domain, so please pay us an arbitrary amount that we alone determine each year for the privilege of not seeing anyone else make that registration.” Now iterate over all existing registrations in .com, .gov, .edu, and .cc TLDs, and rake in the profits. To multiply the effect, use a portion of the profits to iterate over every possible derogatory, offensive, or misleading gTLD that can be cobbled together.

    It’s not $20 per year as your blog posting dismissively suggests; we’re talking about a multi-million dollar “business” consisting of leeches.

    That’s extremely unfortunate, and it’s enabled by ICANN’s gTLD decision to throw everything open to the highest bidder. I fully agree with Australia’s objections here, which have been echoed by many others around the world.

    • Milton Mueller

      Thanks for making a comment. I note that it is a negative, critical one; luckily for you I am not from the Australian government so it has been published.

      Actually I don’t think I have missed the point on defensive registrations; I think you have. When you talk about “extortion” you are implying that every business in the world MUST (i.e., is physically or economically compelled to) prevent anyone else from registering a name that might cast negative aspersions on a brand, organization or idea. You are also assuming that businesses have a legal or moral right to prevent such expression. Both ideas are wrong. People have a right to criticize anyone or anything, for any reason they like. And the idea that businesses are “forced” to spend money to prevent such expression simply cannot stand up to the light of the most cursory analysis.

      Let’s take registration of names like brandname.sucks as an example. The mere registration of that name does not inherently attract traffic, much less do intrinsic harm to a brand name’s reputation. It is in no danger of being confused with the brand itself. It is no different in principle from me uttering “brand name sucks” in a public discussion, or a private conversation, nor is it different from publishing a pamphlet or leaflet asserting that brandname sucks. Do I or do I not have the right to do that? Please answer yes, or no. If the answer is “yes” – as it must be in a free society – then you are required to explain to me how expressing those thoughts via a domain name is any different from expressing it in the other ways. And oh by the way, you might want to read Taubman v Webfeats before you answer. I don’t think you will be able to come up with any satisfactory differentiation between expression via domain names and expressions in any other form. So the choice we are faced with is simple, and stark: If corporations or other public entities have a right to structurally pre-empt critical expression in domain names, they should also have the right to do it in books, newspapers, public speeches and private conversations.

      Only a demented trademark lawyer who confuses brand protection with exclusive ownership of words would take us that far into the suppression of expression for the sake of corporate reputation protection. What does it say about corporations if they are so insecure and fearful of their reputation that they panic and shell out thousands of dollars at the mere possibility of someone registering a name that might contain criticism of them? If the negative expression constitutes libel or slander there are plenty of ex post legal remedies that can be applied. But otherwise, there are plenty of legitimate reasons why someone might want to run, or post information to, a gripe site.

      Indeed, if your main concern is the business model based on getting fearful corporations to pre-emptively register names, then you can strike the strongest blow against the owner of .sucks by simply refusing to register in it.

  3. Murray McKercher

    Your headline, while attention grabbing may serve to belittle the more serious discussion presented in your blog post. I believe this may be a good forum for discussion, however, I would prefer to see concrete suggestions for a better way forward. ICANN’s transparency of discussion should ensure a seat at the table for internetgovernance.org.

  4. Lindsea

    I’m not going to pretend that upon first venturing into the world of Internet governance, perhaps naïvely chock full of open source revolutionary ideals and inspired by the potential good of bottom-up governance, ICANN seemed like the hipper, next generation politics to a bureaucratic, mustached status quo. Ideally, its a transparent, open organization that develops policies which keep the Internet lead by innovation. Power concentrated in the board, where hastily organized, closed door meetings yield changes that affect the many reeks far more of what I see as the status quo than what ICANN has the potential to be.

    On their website, it says that “the world broadly accepts ICANN as the place to work out Internet governance policies.” It boasts participation from 109 nations, the Vatican, the EU, and of course the supporting organizations, which include all the rest of us. ICANN already has an enormous responsibility which will only increase exponentially.

    Like you said, the responsibility is not for ICANN as a corporation or Chehadi as the CEO to decide on policy. If that were the case, perhaps we as netizens should all pledge allegiance to ICANN, one nation under the Internet.

    Back in the real world, that’s not (yet) the case. Much like the global Internet made up of a network of networks, ICANN is meta-governance that mirrors the way the Internet works. It would serve everyone if ICANN focused on fostering and strengthening their community, and upholding their processes so that those with stakes in the Internet but without enough of the old-world-name-brand oligopolic clout to sway Chehadi could get a good night’s sleep. Though no one in mainstream media seems to sense it, there’s evidently some shady motivations behind their strong core values that leaves carefully drawn lines (like free speech) a little blurry.

    Speaking of which, what do you think the rise of an Internet Bonaparte might be like, and how could we prevent this from happening?

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