The NTIA’s New Policy of Appeasement

We’ve asserted before that the US government’s Internet governance policy has lost direction and become confused and self-contradictory. Yesterday the U.S. Commerce Department confirmed the diagnosis. In preparation for the upcoming ICANN meeting in Durban, South Africa, the NTIA released a bizarre statement about top level domain applications involving geographic names. Dissecting this statement provides quite a bit of insight into the pathologies of current US approaches to global Internet governance. The NTIA statement abandons both free expression principles and US business interests at the same time, while making a huge tactical blunder. And all this is done in order to appease and empower governments, so that they will “buy into” an allegedly nongovernmental model of governance.

The July 5 NTIA statement is intended to address controversies surrounding top level domain applications for .SHENZHEN (in Chinese characters), .PERSIANGULF, .GUANGZHOU (in Chinese characters), .AMAZON (and its equivalent in Japanese and Chinese), .PATAGONIA, .YUN, and .THAI.

All of these TLD applications have three things in common:

  1. They were permitted under the ICANN rules for the new TLD applications;
  2. No international laws or treaties give national governments the right to regulate the appropriation or use of such names; and
  3. Despite those first two points, some governments are angrily asserting authority over these geographic names, and are using the GAC advice process to get that authority.

The cases of .AMAZON and .PATAGONIA are the most well-known. Amazon, of course, is the gigantic online retailer – global but based in America – and Patagonia is a California maker of sports clothing. Both companies have internationally recognized trademarks in character strings that also correspond to names of geographic regions. Both companies have a perfectly logical objective of replacing their second-level domain (Amazon.com; Patagonia.com) with a ‘brand’ top level domain that would allow them to directly control and manage the entire name space under the TLD rather than leasing names under the .COM domain and being dependent upon Verisign. And in both of these cases, Latin American governments have turned the applications into a political football, shamelessly exploiting bogus nationalistic and cultural solidarities to create the Internet governance equivalent of identity politics. Miguel Palomino, director for science and technology at Peru’s Ministry for Foreign Affairs, claimed that the Amazon name “is the heritage of the Amazonian countries [and] cannot be an object of an Internet domain.”  (Except that it already is!)

The Amazon.com domain is a perfect example of why we should value the permissionless innovation of the early Internet; it also makes it clear how much of that innovation we are losing by creating a highly politicized central authority such as ICANN. Had Amazon been required to ask governments for advance permission to use the name in 1996, it is obvious now that they never would have gotten it. Yet in an open, unregulated environment the company was able to register whatever name it wanted, make a novel and arbitrary use of it and go on to create billions of dollars in value. No one can seriously claim that anyone was harmed by its first appropriation of the term as a second-level domain; certainly not the indigenous people of the region (who don’t even use the term ‘Amazon’ to describe themselves). And besides, the critics of the .AMAZON and .PATAGONIA TLD applications never had real plans for developing either domain; they are simply jealous or resentful of the term being used by someone else.

How does the US respond to this problem?

The NTIA’s July 5 statement begins by urging the applicants and the objecting governments to reach some kind of an agreement on “safeguards” that will assuage the governments’ concerns. It then announces that if the parties cannot reach an agreement, the US will not prevent the GAC from vetoing the applications. Note that as a member of the GAC, the US – like every other government – has the right to object to a GAC policy if it does not agree with a position, which would block consensus and prevent the GAC from claiming that it had universal support. Yet in an act of unilateral disarmament, the NTIA statement tells the world that it will refrain from blocking consensus on a GAC advice should it decide issue a communique urging the Board to veto the applications with geographic names.

The US act of unilateral disarmament also affects the nature of the negotiations it calls for between the governments and the applicants. In effect, the US has told the objecting governments that they do not need to compromise, or negotiate in good faith with the gTLD applicants. Because if there is no agreement they still get what they want: advice from the GAC to kill the applications. Now that they know that the US will not stand in the way of any such GAC vote, why should they be flexible?

After making a concession that completely eliminates any influence the US might have, then and only then does the NTIA statement start talking about its fundamental policy principles. “The United States affirms our support for the free flow of information and freedom of expression and does not view sovereignty as a valid basis for objecting to the use of terms [as TLDs]… … In addition, the United States is not aware of an international consensus that recognizes inherent governmental rights in geographic terms.” Now they tell us.

In other words, the US statement basically says “we think that the GAC is going to do the wrong thing; its most likely course of action has no basis in international law and is contrary to vital policy principles the US is supposed to uphold. But who cares? We are letting everyone know that we will refuse to use the main tool we have that could either stop GAC from doing the wrong thing or provide it with an incentive to moderate its stance.”

If the US position is based on neither principle nor interest, what is it based on? As far as we can tell, its overriding objective seems to be to ensure that the governments who populate the GAC are kept happy, that they do not go home disappointed in their ability to influence the ICANN process. The US has become so confused about Internet governance that it thinks it is supporting multistakeholder governance and opposing an intergovernmental takeover of the Internet by making sure that governments always get their way in the ICANN environment. The US intends to show the other governments that ICANN is the best venue for global Internet governance by refusing to stand up for the only good thing the US has to offer in the Internet governance domain, namely a commitment to a more liberal, open and free environment.

What is at stake here is far more important than the interests of Amazon, Inc. and Patagonia, Inc. What’s really at stake is whether the Internet is free of pointless constraints and petty political objections; whether governments can abuse the ICANN process to create rights and powers for themselves without any international legislative process subject to democratic and judicial checks and balances; whether the alternative governance model that ICANN was supposed to represent is real; whether domain name policy is made through an open, bottom-up consensus or top-down by states; whether the use of words or names on the Internet is subject to arbitrary objections  from politicians globalizing their local prejudices.


7 comments

  1. David Newman

    Oh come on. The geographical regions predate by centuries the use of their names by private companies. It is quite legitimate to object to this new wave of colonization.

    • Milton Mueller

      That law review article is a great piece, and everyone should read it as it does provide insight into the early development of government claims on country names. It does, however, deal more with country names per se than with regional or other geographic names. Have you done any work on the broader issue?

  2. Martin Otsieno

    Despite those first two points, some governments are angrily asserting authority over these geographic names, and are using the GAC advice process to get that authority, one other prominent example is the .africa gTLD that needs to be included in the list.

  3. Richard Hill

    Indeed, as Froomkin shows, there is no international agreement that gives country names the status of trademarks. As far as I know, the same holds for geographic names in general and indeed, during the development of the UDRP, it was agreed not to extend the UDRP to geographic names.

    But I cannot resist noting that there is also no international agreement giving authority for domain names and addresses to a private company that operates under various agreements with the US government. Nor is there any international agreement giving the US government the right to control what goes into the DNS root zone file.

    Nor is there any international agreement allowing countries (such as the US, but probably also others) to intercept and analyse foreign communications without any judicial oversight.

    As some have pointed out elsewhere, unilateral actions by the US do, at time, result in reactions. In come cases, those reactions can have unforeseen and undesirable consequences.

    I discuss one particular example in my article “WCIT: failure or success, impasse or way forward?” International Journal of Law and Information Technology (forthcoming) DOI:10.1093/ijlit/eat008, available at

    http://ijlit.oxfordjournals.org/content/early/2013/06/10/ijlit.eat008.full?ijkey=otqkCXVOAelJUPy&keytype=ref

    Use of the terms “colonlialism” and “imperialism” may not be entirely unwarranted when it comes to Internet governance.

    Best,
    Richard

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