The second EC ICANN Paper: How low can they go?

ICANN’s program to allow new top level domains is important.

You cannot have a global manager of the domain name system without some

kind of agreed policy for adding new top level domains to the root. Note that we

at IGP are agnostic about the level of economic demand for new TLDs and the

merits of any particular applicant. We believe that the choices of users and consumers should

determine the fate of new registries and new names – not a central planning

authority dominated by governments and special interest groups. The new TLD

program is also important because domain names are a form of expression on the

Internet. Any policy that regulates the creation or operation of new domains based

on their meaning or the content underneath them is, de facto, a form of globalized

content regulation.Thus, even people who think domain names are not that important need to pay attention to what happens in this space, especially now that domain take-downs are becoming an increasingly common form of state intervention.

In its second ICANN paper, the EC has taken the worst

possible position on both aspects of new TLD policy. Its paper is radically inimical to freedom of expression, and would erect huge,

unnecessary economic barriers to entry. It is also destructive institutionally:

it proposes to subordinate Internet community self-governance to hierarchical

control by nation-states, and would replace ICANN’s new gTLD policy with something

concocted in secret by a handful of unelected bureaucrats. The EC Paper New gTLD Process proposes to allow

governments, through the Governmental Advisory Committee (GAC) to take complete

control over what new top level domain names are allowed to exist. As such, it

shows that the EC refuses to accept the legitimacy or the authority of the multi-stakeholder

process that resulted in the policy. It wants to revert to an intergovernmental

system – just like China, Russia, Iran and Syria. Do they understand the implications of what they

are doing? The most charitable conclusion is that they do not.

The paper proposing these

radical changes was only accidentally leaked to the public by .Nxt. The EC –

which routinely engages in public consultations on policy documents – developed

these recommendations in secret and never allowed the European public to see or

comment upon them. The EC’s policy proposals, therefore, are completely lacking

in democratic legitimacy, making the paper’s claim that it represents or speaks

for the public interest in this matter an act of blatant hypocrisy.

The charge that the EC approach constitutes a governmental

takeover of the top level of the DNS may sound exaggerated, but it is not. Here

is the proof: 1) The EC explicitly supports the NTIA’s proposed modification of

the IANA contract, which would replace the objective procedural and substantive

criteria of ICANN’s Applicant Guidebook with a subjective determination by a technical body that a new top-level domain “has received consensus support from

relevant stakeholders and is supported by the global public interest.” 2) The

EC says that “the European Commission considers that defining what constitutes

consensus (including how it is achieved and expressed) lies within the

prerogatives of GAC itself.” 3) Voila! All new TLD applications must demonstrate

“consensus support,” and the GAC itself will unilaterally determine what

constitutes consensus. Any proposed service or domain that governments don’t

like can be vetoed by GAC.

This demand for control is particularly astounding given the

concessions that the ICANN Board has already made to the GAC. Without any

support from the public, the Board agreed to notify governments about the

applications received and “invite” them to indicate which TLDs might raise

“public policy concerns.” This is called the “GAC early warning.” “Public

policy concerns,” of course, is a term of art in ICANN; it has no objective

definition so that, in practice, it means that governments can try to block or

censor any content or applicant that they want, simply by claiming that the

application raises public policy concerns. In addition, the GAC will be able to

raise formal objections later in the process. The potential to exert a

heckler’s veto is, apparently, not enough. The EC wants any government in the

world, including ones with no human rights guarantees and established records

of repression, to be able to kill applications by claiming that they don’t have

consensus. And under the EC’s definition of “consensus,” each government could

use its own lack of support as evidence of a lack of consensus. It is a recipe for a governmental veto of any and every new domain.

But that is not all. The EC wants the GAC, which has no

legal authority and no ratification process that subjects it to national or

international law or judicial appeal, to become a legislator that can create a

list of words that no Internet user in the world can register. The EC paper

says that “GAC members [should be able to] request the reservation or blocking

of domain names at the second level under new gTLDs. It should do this by

constructing a censorship list, which it calls a “reference list for all new

gTLD operators to use and ICANN should ensure compliance through the contract

it negotiates with new gTLD registry operators.” And more: “The contractor

should also be required to ensure that governments and public administrations

can raise concerns about particular names after their registration if a serious

public order concern is involved, and with a view to the registry “taking

down” the name concerned.” Try to imagine 150 of the world’s governments

sitting in a room and agreeing on what words should not be available to the

world’s users: this is what the EC is proposing.

It gets even worse. The EC wants all applications to “demonstrate

a minimum level of support from the respective community that the TLD intends

to serve” before the GAC even has to consider it. Of course, demonstrating

support from a community is a standard that practically every truly innovative Internet

concept is unable to meet. New ideas, by definition, don’t have support

precisely because no one has ever thought of them before. Moreover, many new ideas are

threatening to old ideas or operators, and thus will be sure to generate objections. New proposals succeed because their

backers are free to offer them, and people support them only after they are offered.

It would have been impossible for the TCP/IP protocols, for example, to

demonstrate any support among the world’s data communication users before the Internet

was put into operation. Worse, this requirement of demonstrated support is sure

to kill any application or idea that is the least bit controversial. Any vocal

segment of a community will be able to object to, and kill, any proposal.

Another

disturbing aspect of the paper is that it reinforces the American

government's growing tendency (urged on them by trademark holders) to

try to make the IANA contract a regulatory system. As we have

demonstrated in other posts, because lobbyists from a few big

corporations are unhappy with the compromises they have had to make in

the ICANN process, both the U.S. NTIA and now the EC want to abuse the

IANA contract, by forcing it to make vague “public interest” and

“consensus” determinations which would no doubt be heavily influenced by governmental pressure.

In terms of its regard for the freedom and

openness of the Internet, this is a document that could have been prepared by

the governments of Iran, China or Saudi Arabia. Europeans should be ashamed of

their putative government, and rights advocates there should challenge the

Commission papers and expose them as lacking in any public support. The EC

officials who developed these proposals should be pressured to resign.