The US Commerce Dept position paper for the ICANN Board negotiations

IGP has obtained a copy of the US Commerce Department's position paper for its February 28 negotiations with the ICANN Board over the new top level domain program. The “USG Submission to the GAC Scorecard” shows that the U.S. Commerce Department's ICANN crew has gone off the rails. It supports direct governmental veto power over domains and demands that ICANN completely rewrite most of the consensus policies developed over 4 years. 

The specific policies recommended by the U.S. will astonish anyone who believes that the U.S. supports Internet freedom and democratic governance. For beginners, the U.S. is demanding that ICANN give any government in the world the authority to veto a top level domain. The U.S. wants to make all top level domains go through an initial “review by governments, via the GAC.” In this initial evaluation process, “Any GAC member may raise an objection to a proposed string for any reason.  If it is the consensus position of the GAC not to oppose an objection raised by a GAC member or members, ICANN shall reject the application.” (In a footnote, the US defines “consensus position” as “a position voiced by one or more GAC member(s) not objected to by other GAC member(s).”)

This is truly astounding. The ICANN process has spent years trying to ensure that only applications that involve words contrary to general principles of international law will be vetoed. The Commerce Department, in contrast, is openly saying that  governments should be able to veto a top level domain “for any reason.” So much for the rule of law.

The implications of the U.S. position become clear when one examines specific cases. There will be an application for a .gay top level domain. It is clear from conversations with government officials in a couple of conservative Arab countries that they object to .gay. This means that unless other governments are willing to counter this objection, ICANN will suppress an important form of expression for people who happen to be gay. Such expression could be blocked regardless of whether it contains content or words that are illegal in the objecting country; it can be suppressed regardless of whether it is illegal under international law; it can be suppressed regardless of whether it is legal and protected speech in the applicant's own jurisdiction and markets. The U.S. is proposing that suppression take place because some government official doesn't like it. Welcome to the 17th century.

Ah, you might be thinking, surely democratic governments will knock down such objections, because they support freedom of expression. But no, this is a completely false hope. If governments believe that gays (or other controversial ideas and communities) have a right to express their identity, they would not make their ability to get a domain name reflecting their identity contingent upon a review by a world government committee in which some members are sure to be hostile to their culture and lifestyle. Any government that really wants to uphold individual rights would not do what the U.S. is doing. The GAC review-and-veto process reduces the right to free expression (which is recognized under international and many domestic laws) to a pawn in a political bargaining game among governments. Think about the case of .falungong. It is certain that China would object to the existence of such a domain. Would the US challenge that objection? Maybe, maybe not. It is not only possible, but likely, that such a domain would become part of a larger geopolitical calculation. The U.S. might agree to scratch China's back in exchange for China's agreement to do something the U.S. wants (revalue its currency, pressure North Korea, whatever).

But we need not speculate about the intentions of the so-called freedom-supporting countries. They are revealed in the GAC letter to ICANN of August 2010, which was signed by a Canadian and probably written by an American. This letter openly states that “the absence of any controversial strings [i.e. names]…contributes to the security and stability of the DNS.” So “absence of controversy” is the standard the U.S. is fighting for – not rule of law, not liberty of action or association, not “Internet freedom.” In the pursuit of that great principle – absence of controversy – the U.S. is expending enormous effort so that the Chinas, Irans, Saudi Arabias, Burmas and Belorussias of the world can get a chance to veto any word, concept, movement or community they don't like, “for any reason.”  Don't expect that crowd to stand up for anyone's rights in the GAC veto deliberations.

When it comes to problems of conflicting values and national laws, the solution is obvious. At the global level, anything that is not patently illegal internationally should be permitted, and so should any proposal that is legal in the country and markets served. National governments can, if they wish, block any domains or content on domains that they find contrary to their own national law. While such blocking is almost always a bad thing, at least it occurs after publication, can be subject to local due process, and its ill effects are confined to one jurisdiction. What the U.S. wants, apparently, is to give the Internet's censors the ability to block before publication occurs (prior restraint) and to globalize that censorship so it can be effective over people in other, more liberal jurisdictions.

The U.S. rejects this obvious solution, falsely arguing that such limited, local blocking “harms the architecture of the DNS.” But second-level blocking of domains already occurs in thousands of cases and dozens of states, and there is already some blocking of top level domains. Blocked domains are universally resolvable architecturally; it's just that some network operators refuse to resolve them, just as IP addresses are universally resolvable but any given Internet service provider may choose to block addresses used by known spammers. These practices harm users (or benefit them, in the case of spam) and make life more complicated for operators, but they do not harm “Internet architecture.”

The US position paper reaches its peak of irrationality when it attacks the Applicant Guidebook's attempt to limit the objection process to domains that are illegal under international law, and then use experts in international law and human rights to adjudicate disputes over the legality or illegality of the words. The paper argues that such a procedure

This appeal to sovereignty is hypocritical. Apparently the U.S. is intensely interested in national sovereignty when it means that one national government can ignore independent, expert adjudication of what is and is not legal under international law. But the U.S. doesn't care about sovereignty at all when constitutionally guaranteed rights to freedom of expression are violated because a government half way around the world objects to certain forms of expression.

It is the U.S. proposal that gives national governments the authority to apply their laws globally and extra-territorially. Indeed, it is not even the laws that would be globalized by their proposal; it is merely sensibilities, feelings, or “concerns” voiced by a government official. So the U.S. is demanding that the national sensibilities of, say, Germany or Vietnam be applied to domain applicants and internet entrepreneurs in Canada, Russia and everywhere else. And it is empowering individual countries to make their local objections global “for any reason;” i.e., regardless of national or international law. All in the name of “national sovereignty.” It is a flimsy and dishonest argument.

Moving beyond the freedom of expression issue, one sees in this document nothing less than a manifesto in a power struggle between governments and the Internet community over who shall govern the DNS. The new gTLD policy was laboriously constructed by ICANN and the many interest groups participating in it over a period of four years. The U.S. position paper goes after virtually all of it. The U.S. “Scorecard” proposes to rewrite, from scratch, established ICANN policy on censorship, community-based top level domains, the economic justification for new top level domains, vertical integration, trademark protection, and criminal screening processes for new TLD applicants. It is clear that the US thinks that it should be making policy and not the ICANN multistakeholder process.

The hardline positions articulated in the U.S. “GAC Scorecard” were
considered by a Working Group that contained representatives of
governments, business and civil society last year. Those positions found virtually
no support. Even the governmental representatives who participated,
mostly UK and New Zealand, either did not support or were simply unable
to defend the positions articulated in the US position paper. How is it
that the US can still push for positions that not only contravene its
own domestic law, but have no support from any domestic or foreign
stakeholder group?

During the United Nations-sponsored World Summit on the Information Society, the US government played to fears of a UN takeover of the Internet and swore that it was protecting the Internet from “burdensome intergovernmental oversight and control.” Wouldn't most Americans be surprised to learn that the Commerce Department is now using ICANN's Governmental Advisory Committee to give any government in the world a veto power over what kind of new web sites can be created? Ironically, the US has become the most formidable world advocate of burdensome government oversight and control in Internet governance.

ICANN's Board needs to stand up against this illegitimate and unlawful pressure. If there is any saving grace to the ugly positions being advanced, it is that they are so extreme, so lacking in support from the relevant community, so untimely and dilatory in their assertion, and so fundamentally subversive of ICANN's entire model of governance that it will be easy for the board to reject this “advice” across the Board.