ICANN should confine itself to technical and operational matters
Comments: ICANN should not try to regulate morality and public order on the Internet. But the proposed policy for approving new gTLDs threatens to do just that. There is no global consensus on these cultural issues, and applying a one-size-fits-all policy to censor the global Internet cannot work. Also, trademark law doesn't match the way Internet domains are used, and the proposed policy would apply trademark law in ways that are completely unprecedented in any national law or international treaty. This is completely inappropriate, and is likely to be illegal in many cases. I oppose Recommendation #6 of the GNSO New GTLD Committee Final Report for the following reasons: 1) It will completely undermine ICANNâs efforts to make the gTLD application process predictable, and instead make the evaluation process arbitrary, subjective and political; 2) It will have the effect of suppressing free and diverse expression; 3) It exposes ICANN to litigation risks; 4) It takes ICANN too far away from its technical coordination mission and into areas of legislating morality and public order. I also believe that the objective of Recommendation #6 is unclear: at a minimum, I believe that the words ârelating to morality and public orderâ must be struck from the recommendation.
I cannot support the committeeâs proposal for ICANN to establish a broad objection and rejection process for domain names that empowers ICANN and its âexpertsâ to adjudicate the legal rights of domain name applicants (and objectors). The proposal would also empower ICANN and its âexpertsâ to invent entirely new rights to domain names that do not exist in law. However âgood-intentionedâ, the proposal would inevitably set up a system that decides legal rights based on subjective beliefs of âexpert panelsâ and the amount of insider lobbying. The proposal would give âestablished institutionsâ veto power over applications for domain names to the detriment of innovators and start-ups. There is no limitation on the type of objections that can be raised to kill a domain name, no requirement that actual harm be shown to deny an application, and no recourse for the wrongful denial of legal rights by ICANN and its experts under this proposal. An applicant must b! e able to appeal decisions of ICANN and its experts to courts, who have more competence and authority to decide the applicantâs legal rights. Legal due process requires maintaining a right to appeal these decisions to real courts. The proposal operates under false assumptions of âcommunitiesâ that can be defined, and that parties can be rightfully appointed representatives of âthe communityâ by ICANN. The proposal gives preference to âestablished institutionsâ for domain names, and leaves applicantsâ without the backing of âestablished institutionsâ with little right to a top-level domain. The proposal operates to the detriment of small-scale start-ups and innovators who are clever enough to come up with an idea for a domain first, but lack the insider-connections and financial resources necessary to convince an ICANN panel of their worthiness. It will be excessively expensive to apply for either a controversial or a popular domain name, so only well-! financed âestablished institutionsâ will have both the standing an d financial wherewithal to be awarded a top-level domain. The proposal privileges who is awarded a top-level domain, and thus discourages diversity of thought and the free flow of information by making it more difficult to obtain information on controversial ideas or from innovative new-comers.
Why should all âcommunitiesâ agree before a domain name can be issued? How to decide who speaks for a âcommunityâ?
Implementation Guideline H recommends a system to adjudicate legal rights that exists entirely outside of legitimate democratic law-making processes. The process sets up a system of unaccountable private law where âexpertsâ are free to pick and choose favored laws, such as trademark rights, and ignore disfavored laws, such as free expression guarantees.
The committeeâs recommendation for domain name objection and rejection processes are far too broad and unwieldy to be put into practice. They would stifle freedom of expression, innovation, cultural diversity, and market competition. Rather than follow existing law, the proposal would set up an illegitimate process that usurps jurisdiction to adjudicate peoplesâ legal rights (and create new rights) in a process designed to favor incumbents. The adoption of this âfree-for-allâ objection and rejection process will further call into question ICANNâs legitimacy to govern and its ability to serve the global public interest that respects the rights of all citizens.
These problems are too important to let the proposed policy be approved without fixing them. Please protect freedom of expression and innovation by removing non-technical and non-operational criteria from all ICANN policies. Keep the Internet open and nondiscriminatory. Keep the core neutral. Fabrizio Colaianni Italy - EU.