On second thought, let’s NOT kill all the lawyers

The “Independent Objector” (IO) is one of those unique ICANN creations that shows just how complicated and fraught with politics the simple act of coordinating top level domain name assignments can become.  The IO is a special officer mandated by ICANN to review applications for new top level domains and “object to highly objectionable gTLD applications” that would be contrary to “the best interests of the public who use the global Internet.”

We greeted ICANN’s creation of an independent objector with concern and skepticism. We saw the IO as having the potential to be a censor – someone who could veto controversial domain applications that people wanted to get rid of but which did not really violate any law or policy. Forms of expression that are controversial, or threatening to powerful interests, could be vetoed arbitrarily and the idea of “the best interests of the public” used as an opaque rationalization for doing so, just as censors in China or elsewhere use “public security” as an excuse.

Governments and the general community have already been given the opportunity to object to TLD applications for any reason. Such objections can act as a kind of prior restraint on free expression. Applications can be killed simply because someone doesn’t like them.

We are extremely happy and relieved to report that the man ICANN appointed as IO, Professor Alain Pellet, has chosen to take a scrupulously legalistic and liberal approach to making independent objections. In a series of opinions on controversial domain applications released recently, Professor Pellet and his assistant, Julien Boissise, have made it clear that they will apply fundamental principles of international law, not some arbitrary conception of “the public interest,” to limit their objections.

Prof. Pellet establishes a clear standard for objections: “the IO examines if the applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under fundamental principles of international law aimed at protecting common values of the international society, such as prohibition of genocide, slavery, torture or sexual exploitation of children.” In line with this clear and liberal standard, the IO has dismissed objections against many controversial domains, while explicitly articulating the free expression rationale for allowing such domains.

Prof. Pellet’s opinion on the application for .WTF is typical of his approach. He notes that the acronym WTF, when spelled out, includes what could in certain contexts be considered vulgar or inappropriate. He then carefully works through the international conventions and treaties protecting freedom of expression and takes note of all relevant limitations on free expression. He also notes the conventions related to the rights of the child (although whoever asserted that WTF would be shocking or harmful to children has obviously not been monitoring the social media use of 11 year olds as much as I have). Based on this, he concludes that

simply reading a slang word cannot be considered as contrary to international morality and public order. It falls within the competence of each State to determine whether such a gTLD should be accessible or not to children. It is not the mission and the mandate of the IO to take a position on that issue.

Quoting another international legal ruling, he notes that international adjudication “can take account of moral principles only insofar as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline.”

So there will be no IO objection to WTF. Hooray for law, principled lawyers, and for freedom-conscious restraint in the application of rules!

Still, we must note that while this is a victory, it is also a less robust one than we would wish. ICANN was lucky that it got a restrained, liberal and principled jurist into the IO position. It is possible that the next one will be more political, more willing to curry favor with powerful interests, more susceptible to defining his own preferences as “the global public interest.”

ICANN had a chance to limit objections to clear violations of international law and make that a direct part of its policy and procedure. Due to pressure from governments – especially the US government, which is incredibly two-faced on this issue – it was forced to back down and try to create room for people to object to domains “for any reason.” The current IO shows how a principled approach to this process would work. It is a wonderful example of how global internet governance needs to be based on law, not on “public policy.”

Because there is no homogenous global public, and ideas about what is in the general interest of 2 billion Internet users will vary radically across cultures, jurisdictions, regions and interest groups, giving one person the right to declare that an application was contrary to the interests of the public is still dangerous. Several ICANN Board members I have spoken to, or in the minutes of their meeetings, reveal a tendency to invoke “the global public interest” whenever they want to support a decision but there is no well-defined legal or policy basis for supporting that decision (read the minutes about closed generic TLDs, for example).

Given the arbitrariness of so much of what ICANN does, and the lack of traditional forms of legal accountability, we need more of the kind of principled, rule-based ordering shown by the IO.


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