At the Toronto ICANN meeting, the Council of Europe, which participates in the Governmental Advisory Committee (GAC) as an observer, released a report on the relationship between freedom of expression rights and new top level domain applications. The report emphasizes the link between freedom of expression, freedom of association and domain name applications. It warns the governments in the GAC and ICANN that

states have obligations to protect, respect and promote the human rights and fundamental freedoms of persons within their jurisdiction. … These obligations continue to exist when states participate in activities of entities with specialised technical mandates.

The report recognizes that some top level domain name applications may be “sensitive” to specific communities. But it notes that the power to restrict or limit sensitive speech is carefully defined and strongly limited by international instruments such as the European Convention on Human Rights. The report says:

Where a decision regarding the introduction of sensitive new gTLDs needs to be taken, it is preferable to give priority to upholding the right to freedom of expression and the right to freedom of association. This can be done while managing related DNS risks rather than advising that a new gTLD application should not proceed or be unreasonably or unfairly remediated.

The Council’s report takes on added importance now. The GAC is increasingly functioning as if it were in a law-free zone, as if the policy preferences of a few dominant members can be given the status of binding international law simply by ordering the ICANN board and the GNSO to comply. In its Toronto Communique, the GAC claims that if it advises the board against approving a top level domain application, the board should veto those domains simply because the GAC doesn’t like them. As Wolfgang Kleinwachter put it in a recent blog post, the GAC is claiming a “right to have the last word in ICANNs decision making process.”

Interestingly, this push for greater intergovernmental power is led by a U.S. Commerce Department representative – who seems to have forgotten that the U.S. government is currently running around the world reacting to the ITU’s World Conference on International Telecommunications by proclaiming its preference for bottom up, multistakeholder governance over intergovernmental regimes. Worse, the U.S. position is slavishly echoed by some European GAC members, who seem to have abandoned Europe’s constitutional commitments to fundamental human rights in order to make the GAC (and themselves) more powerful in ICANN.

The GAC’s tendency to ignore internationally recognized legal standards when they get in the way of short-term policy preferences was exposed thoroughly and completely prior to the Toronto meeting, when the Article 29 Working Party, an association of data protection authorities in Europe, announced that GAC demands for modifying contracts to require data retention and pre-verification of domains was against the law in most of Europe. Prior to this reality check, the GAC had tried to force ICANN’s board to bypass its own policy development process by ordering the GNSO, which is supposed to originate and develop policy, to rubber stamp the demands of a few US law enforcement agencies. In doing this, the GAC claimed that it had already consulted with data protection authorities. But that turned out to be a lie.

There is growing evidence that the mid-level government officials who populate the GAC either do not understand, or choose not to respect, traditional legal constraints on government action. That makes the Council of Europe’s report a welcome addition to the dialogue on domain name policy. Along with the Article 29 letter, it shows that the government agencies that consider human rights part of their mission are beginning to push back against the GAC’s extra-legal grasps for influence.

The full report can be downloaded here: CoE-Report-TLDs