As we move toward the IANA transition, many observers are concerned about the relationship between an autonomous ICANN and Internet freedom. One proposal even went so far as to propose to replace NTIA oversight with an “Internet Freedom Panel” that could veto any ICANN decisions that threaten Internet freedom. That proposal is unworkable because of the overly broad scope of the veto power and the infinite regress problem of who would oversee the oversight panel. Nevertheless, the idea of trying to structure the transition in ways that impose constitutional limits on ICANN’s power to regulate Internet content is a good one.
In that vein, the Council of Europe has released an important report on how human rights apply to ICANN. The report, ICANN’s procedures and policies in the light of human rights, fundamental freedoms and democratic values, can be freely downloaded at the CoE site. It is a long-overdue attempt to apply (European) legal concepts related to freedom of expression and privacy to the activities of ICANN. While we have some philosophical disagreements with some of the Council’s definitions and interpretations of rights, the report is extremely valuable. It provides a systematic review of how specific ICANN practices and policies intersect with fundamental rights, and also provides a useful primer on international human rights laws and the interpretive doctrines that have evolved in Europe.
The report brings official confirmation to what this blog and the civil society groups in ICANN have been saying for more than a decade: not only do ICANN policies intersect in important ways with free expression and privacy rights, but many ICANN policies and procedures are obviously inconsistent with those rights.
“ICANN current standards on sensitive applied-for new gTLDs,’ the report states, ‘do not fully comply with the right to freedom of expression.’ The report singles out GAC opposition to generic TLD proposals that imply criticism of a brand, a person or an idea, such as .fail, .gripe, .wtf or .sucks. These objections are unjustifiable on human rights grounds. Governments, corporations and politicians should be willing to accept criticism of their activities or policies. Because blocking opportunities for offensive expression restricts all forms of speech, not just commercial speech, the report recommends that ICANN “consider legal models outside of trademark law to better address the balance of speech rights.”
The report also singles out ICANN’s Registrar Accreditation Agreement (RAA) for violating international human rights jurisprudence. The RAA provisions requiring data retention and disclosure “constitute an interference with the individual rights guaranteed by Article 8 of the European Covenant on Human Rights and Articles 7 and 8 of the Charter.” Open access by third parties to the Whois database, according to the report, “may be even more problematic” because “it does not contain effective safeguards regarding the way that personal data will be collected and processed by third parties.” The report also questions the necessity and proportionality of Whois-related policies, as well as the absence of any purpose limitation.
Many voices are now praising ICANN for making “the public interest” a basis for its policy. The CoE report, however, introduces a very important cautionary note: “The concept of serving the global public interest is vague, providing neither clear guidance nor constraint on ICANN’s action.” We would go further and state that individual rights and public interest are often in conflict. It is not uncommon for state actors to override or eliminate rights because of their belief that it somehow serves a greater public or collective interest. Certainly the law enforcement and intelligence agencies engaged in indiscriminate data gathering or surveillance believe that their activities, while inconsistent with privacy rights, are in the public interest because of their ability to aid in the prevention or punishment of crimes. The CoE report implies, but rather indirectly, that consistency with fundamental rights should be one of the primary criteria for assessing whether a policy is in the public interest. We would have preferred a stronger statement to that effect.
Another important criticism of the report stems from its idealized understanding of the role of governments in protecting rights. Governments, according to the CoE report, have “primary legal and political responsibility for the protection of human rights.” Perhaps, but governments are also the most effective and systematic violators of human rights on the Internet. To put it more bluntly, nearly all of the human rights violations identified by CoE in the context of ICANN exist because of the insistence of governments in the GAC. Those of us who favor self-governance led by non-state actors appreciate the normative role of traditional legal rights stemming from the democratic state, but do not believe that states can be as effective as the individuals themselves in preserving and advancing those rights. Hence, a so-called multi-stakeholder regime, one that allows rights holders to speak and act for themselves, is preferable to an intergovernmental one.
Bringing this back to the IANA transition, a basic accountability (type B) precondition for the IANA transition should be a contractual commitment from ICANN to its community that its policy decisions regarding domains would not violate fundamental human rights to free expression and privacy. Thus guarantee should be grounded in some limited third party beneficiary provisions so that registrants, as well as registries or registrars, could take action to initiate challenges to policies that violated fundamental rights.