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Username: cchiu
Date/Time: Fri, November 3, 2000 at 8:40 PM GMT
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Subject: American Civil Liberties Union comments on ICANN TLD application process

Message: 		 

 
ICANN is currently considering whether to introduce new generic Top-level domain names. ICANN has received 47 applications--predominantly from the commercial sector--and ICANN officials have indicated they intend to approve only a handful of the proposals.

We are writing to express the ACLU's concern, not with any particular application, but with a plan and process that is effectively choking off speech on the Internet. The domain space that ICANN seeks to administer is burdened with an artificial scarcity of Top Level Domains and increasingly bitter competition over the few addresses that have been made available.

In particular, we believe that the current artificial scarcity of Top-level domain names (TLDs):

„h transforms ICANN into an arbiter of speech rights which makes content based decisions about which domain names may exist,
„h leads to unnecessary competition,
„h compounds various intellectual property problems, and
„h favors large commercial speakers at the expense of the small business and the non-commercial sector.

To remedy this situation, we urge ICANN to approve a wholesale expansion of the domain space and to allow new gTLDs to be created by any entity that can meet reasonable technical specifications.

The Internet can be a true marketplace of ideas as well as commerce. It can be a democratizing medium in which speakers with limited resources can reach audiences large and small. The increasing domination of the domain space by large intellectual property holders threatens the democratic character of Internet by creating a growing competition for and a shortage of meaningful domain names.

The commercial sector has long recognized the importance of top-level domain names: being a ".com" company is now a prerequisite for doing e-commerce. Other groups are also recognizing this: the European Union wants ".eu," bankers want ".bank,¡¨ and so on.

ICANN must recognize that civil society groups (i.e. non-profit and non-governmental organizations) also have a stake in domain names. Such groups, whether they are advocating human rights, free speech, culture, or just a local civic activity often have high ideals -- but low resources.

Unfortunately, the interests of civil society groups are threatened by continuing efforts by numerous corporations to dominate the current domain name system (DNS), both through mass registrations and trademark lawsuits. In one such instance, American telecommunications giant Verizon spent approximately $50,000 to register domain names such as ¡§verizonsucks.com¡¨ in a purported attempt to silence its critics. Verizon has also threatened protest websites such as ¡§verizonreallysucks.com¡¨ with costly legal action. These and other developments are making it increasingly difficult for many computer users to create and find various forms of online expression.

What each sector recognizes is that a top-level domain makes content visible on the Net. For better or worse, domain names are the road signs for navigating cyberspace. But as long as there is an artificial scarcity of TLDs, the competition for the most descriptive names will increase and the discord will grow. It is not simply a matter of whether a protest group can register walmartsucks.com, but whether there will be room for McDonalds Farm of Scotland, as well as McDonalds Hamburgers.

A solution to these problems lies in introducing a multitude of new top-level domains, both commercial and non-commercial. More TLDs will allow Internet speakers to use recognizable channels with less fear of treading on the intellectual property rights of others. McDonalds.com can easily coexist with McDonalds.farm.

ICANN has been far too tentative in allocating the domain space. You have moved far too slowly to add new TLDs.  You have discouraged applications from the non-commercial sector by imposing what you describe as ¡§very stringent criteria¡¨ on applicants. Worse still, you have made the process of applying prohibitively expensive by instituting a $50,000 non-refundable fee for the opportunity to even have a TLD proposal considered. The $50,000 fee, which cannot be justified as a true indicator of your costs, has meant that proposals that would benefit non-commercial groups (such as .humanrights) were simply not made.

With the current situation as a backdrop, it is increasingly clear that the vast majority of current applications are unlikely to provide much relief to the domain name congestion or to afford significant naming opportunities for the non-commercial sector. For example, most of the proposed domains include famous names lists and "sunrise provisions" that will give intellectual property interests a first claim on new domain name space at the expense of the general public. Under these schemes, trademark holders who own well-known terms will be allowed to pick and pre-register names within these new domains before anyone else. Some of these applications also provide that after this ¡§sunrise period,¡¨ if people other than the trademark holder try to register a domain name that includes such ¡§famous¡¨ terms, they might be barred from using their chosen domain name or sued, even if there is no likelihood of confusion. These problems are the apparent result of ICANN¡¦s self-described ¡§very stringent criteria.¡¨

ICANN leadership has cited concerns over system stability as reason to hold back on introducing many new TLDs. But you have chosen to discount and dismiss the views of numerous technologists, including IANA founder the late John Postel, that thousands of new domain names could be added to the DNS without risk.

Your decision making raises significant issues under the First Amendment of the United States Constitution and calls into question whether your actions have violated the First Amendment. ICANN essentially operates under a delegation of authority from the US government. Indeed, the Department of Commerce must approve your decisions regarding new gTLDs. This structure leads to a reasonable assumption that you are a US state actor, subject to the mandates of the Constitution. By severely limiting the domain space and by making decisions on criteria, which appear to go well beyond technical issues, it can be reasonably argued that ICANN is making content based decisions regarding the value of new TLDs that violate basic Constitutional precepts.

In summary, throughout this process, ICANN has failed to recognize the needs of individual Internet users and non-commercial organizations. The combination of artificial domain names scarcity, arbitrary rules and limits on DNS expansion present a serious threat to freedom of expression. 

The problems created by artificial scarcity can be best remedied by eliminating the scarcity. ICANN should immediately move to authorize all new TLD's which can meet fair and reasonable technical criteria.

Sincerely,

Barry Steinhardt
Associate Director

Christopher Chiu
Internet Policy Analyst
 

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