By Monika Ermert for Intellectual Property Watch
LISBON - The rejection of the .xxx top-level domain by the board of the Internet Corporation for Assigned Names and Numbers (ICANN) last week in Lisbon was a major highlight of the meeting of the private-sector domain name system technical body, showing its slide into the judgment of content online.

After three years, ICANN decided against the application of ICM Registry to create a .xxx address zone for “responsible adult webmasters.” The .xxx case attracted wide attention because of the nature of the industry it was intended to serve. But the main take-away is that introducing new top-level domains (TLDs, such as .com or .org) will be a very difficult business from now on. The ICANN board meeting took place from 26 to 30 March.

Opposition by part of the very industry it targeted as domain name registrants, opposition by governments because of possible harm to vulnerable members of the society, and warnings by all sides that ICANN would have to police strict rules in the virtual “red-light district” were reasons given by board members for their decision.

”No applicant for any sponsored TLD could ever demonstrate unanimous, cheering approval for its application,” warned ICANN Board Member Susan Crawford during the voting session that saw the ICANN Board split ten to five. Crawford voted against the rejection of .xxx that led to heated discussions in Lisbon and especially a fight between .xxx-applicant ICM Ltd and the Free Speech Coalition. ICANN had no metric against which to measure such opposition, said Crawford and her fellow board member Peter Dengate Thrush, who said he also would have preferred the acceptance of .xxx.

”We should not be in the business of judging the level of market or community support for a new TLD before the fact,” Crawford said. ICANN would only get in the way of useful innovation if it took the view that every new TLD must prove itself to the board before it could be added to the Internet root system, she said.

Rights, Morality and Public Order

Future TLD applicants will have to take many different rights into consideration, according to draft final recommendations discussed during the meeting by ICANN’s Generic Names Supporting Organisation (GNSO), the ICANN body that develops policies for the generic, or open, TLD names space. They have to document support from special communities affected by the applied-for TLD. They also must “not infringe on the legal right of others,” not be “confusingly similar to existing top-level domains,” not be “reserved names” and not be “contrary to generally accepted legal norms relating to morality and public order.” Questions arose in Lisbon as to whether anything could still be opened up as a new TLD given the sum of these restrictions.

”Is it possible for anybody to create a controversial proposal and get it approved under this process?,” asked Milton Mueller, professor at Syracuse University, founding member of the Internet Governance Project (IGP) and long-time ICANN expert. For example, a .abortion TLD might not be well received by the Catholic Church.

”I’m just curious as to whether anyone has taken a look [at] what the proportion of strings [domain names] in the universe that people might consider to be useful [is] versus the strings in the universe that already trademarked,” said Jordyn Buchanan of the ICANN Registrars’ Constituency. Registrars and registries come into contact with the trademark system when new registries are started.

The creation of new domains is further complicated by an evermore complex registration process intended to reduce cybersquatting of legitimate names before the open, first-come, first-served policy begins. In Lisbon, the new TLD .asia presented a five-step sunrise period before normal registration can start. Countries, various types of trademark owners, and people with right to their names can preregister. And ICANN plans to open comment periods before technical, business and operational evaluation begins.

Mueller warned that it might be easy to find laws somewhere in the world against controversial strings. The proposal presented by the GNSO would open a wide door “to purely semantic or sensorial types of objections, with your discussions of morality and public order and your invitation for so-called legitimate groups to express objection basically on just value conflicts,” warned Mueller. “It’s tragic. You are creating a political process of censorship.”

Crawford, in the comment to her vote on .xxx, strongly appealed to the board and Internet community to remember ICANN’s limited mandate. “In the absence of technical considerations,” said Crawford, “the board has no basis for rejecting this application.” ICANN has very limited authority and should base decisions on core values shared by the Internet community. It was clear according to Crawford that there was no globally shared set of values about content online, with the sole exception of child pornography.

The Role of Governments

Governments so far have had to accept that their online content rules were not shared and could not be implemented globally. ICANN now “should not allow itself to be used as a private lever for government chokepoint content control,” said Crawford. In fact, during the .xxx application process some governments, including the United States, Brazil and Canada, pushed ICANN’s Government Advisory Committee (GAC) to “advise” ICANN’s board against the introduction of .xxx against a somewhat silent majority.

ICANN previously approved that the .xxx proposal met sponsorship criteria and in 2005 said staff could proceed to finalise a contract, but after governments rose late concerns, the contract was not approved.

The GAC members themselves released their recommendations for the introduction of new generic TLDs in Lisbon, asking to be consulted over every new string introduced. Concerns of even a single government have to be addressed by the ICANN board during the evaluation of a new TLD. In the recommendations governments align themselves with most of the restrictions concerning prior rights, even if they do not speak of moral rights and public order. According to the text, ICANN should respect human dignity and the sensitivities regarding terms with national, cultural and religious significance.

An emphasis is made by the governments on their “trademarks,” geographical names.
”ICANN should,” read the principles, “avoid country, territory or place names, and country, territory or regional language or people descriptions, unless in agreement with the relevant governments or public authorities.”

Geopolitical Names and Upcoming IDNs

For potential applicants for geographical or language community domains - and there are many out there - this means they have to first get the support of the relevant authorities. Dot.Berlin, a small German company that started lobbying for a .berlin TLD as early as 2005, said they did not expect anything else. They already have presented their ideas to the authorities of the German capital as well as to nearly 30 other Berlins in the world.

”We had visited Berlin in Schleswig-Holstein,” said Dirk Krischenowski, CEO of the company. “We revealed the fact that the Ukrainian Berlin had their name changed in recent years to a Ukrainian city name. And we will have to visit the Berlin in the US.” Certainly there are limits to this effort, they said, and they would expect not to be challenged later by a small “five-house” Berlin they may have overlooked. “Applicants have to address the relevant authorities’ considerations,” said Frank Goebbels, German GAC representative.

Other issues related to geopolitical names were revealed in another paper discussed by a joint working group of the GAC and the managers of country code TLDs (ccTLDs). The paper focuses on ccTLDs like .ch (Switzerland) or .de (Germany) in non-Latin-based scripts like Chinese, Arabic or Greek and asks difficult questions as whether rights are attached to a given script, how many non-Latin ccTLDs should be allowed in the future, and who should be allowed to apply for such TLDs.

What constitutes a country code domain has been easy to determine in the past with the globally accepted ISO 3166-1 list of the alpha two country codes. But a small dispute arose in Lisbon over the question who should lay out a new list with non-Latin script country code symbols: the International Standards Organization (ISO), British consulting company GeoLang Ltd (which presented a plan on invitation of the British government representative) or the countries themselves?

ICANN Board Chairman Vint Cerf, who seemed relieved to get the .xxx decision off his table after three years of debate, said he would like to fold the different rights problems into one procedure. At a session on internationalised domain names, Cerf proposed consideration of allowing a common application and evaluation process for generic TLDs, non-Latin gTLDs and non-Latin ccTLDs. “Let’s figure out,” Cerf said, “if there is a process that will allow any proposal to be exposed to opposition and find a way to resolve it, then we could actually proceed right away.”

But Cerf, who is respected as one of the developers of the Internet’s underlying protocol known as TCP-IP, did not know how this would work. “It could be that a common dispute resolution process might be sufficient to allow us to move ahead on all fronts, as long as parties who are concerned about any particular proposal have a way to raise those issues and have them resolved.” But this might be an idea even more difficult to realise than the start of the TCP-IP network back then.

Monika Ermert may be reached at info@ip-watch.ch.