Veto Power For Governments Against Any Internet Domain Name?

The United States Department of Commerce National Telecommunications and Information Administration (NTIA) is proposing possible veto power for governments against applications for new top-level domains. NTIA is asking for a change to domain name system management that would allow governments to object to any proposed internet address for any reason, which has not surprisingly stirred debate among observers.

The stir began with a now much-debated paper (published here [pdf] by the Internet Governance Project) sent to members of the Internet Corporation for Assigned Names and Numbers (ICANN) Government Advisory Committee (GAC). In it, NTIA asks the government committee to advise ICANN to change its nearly finalised top-level domain (TLD) application procedure to allow governments a far-reaching ex ante intervention: “Any GAC member may raise an objection to a proposed string for any reason.”

Experts now are warning that TLDs like .gay, .falungong or .jihad might be blocked up front. As Syracuse University Professor Milton Mueller put it, the US is demanding that national sensibilities of Germany, Vietnam or any other country be applied to domain applicants and internet entrepreneurs in Canada, Russia or anywhere else.

National or international law is not mentioned as a basis for the veto right, said Mueller, who recalled the US government’s own past warning against a takeover of the internet by United Nations governments.

“Ironically, the US has become the most formidable world advocate of burdensome government oversight and control in internet governance,” Mueller said in attacking the proposal.

To allow the US to present the veto right as official GAC advice to the ICANN Board at a special meeting scheduled for 28 February to 1 March in Brussels, the NTIA has to get the support – or at least non-objection – of its fellow GAC members.

The late February special meeting between the ICANN Board and the GAC became necessary after several governments heavily criticised ICANN’s final draft TLD applicant guidebook during the ICANN meeting in Cartagena, Colombia at the end of last year.

Trademark Protection Proposed

The new US proposal, in addition to the veto power, also includes changes to trademark protection measures dear to some in the rights holder community and also to some GAC members like Germany.

Germany’s Ministry of Economy and Technology sent a letter [pdf] recently warning against disadvantaging trademarks from jurisdictions that did not have a “substantive review”.

Moreover, NTIA – in line with requests from other governments – also wants to establish cost-free objections for governments to so-called community TLDs. According to the NTIA, the community TLDs – originally constructed as TLDs of cultural or language communities – should include sector specific TLDs like .bank or .pharmacy, possibly also the much-disputed .music TLD.

Taken together, the NTIA proposals are expected to diminish the number of TLDs that can apply without any restrictions or objections and therefore go to the internet root quickly.

A first analysis of the trademark-related proposals by the Internet Commerce Association is available here.

Questions in Europe

While some of these proposals might be welcomed by governments, it is an open question how some, for example European governments, will react to the “veto” proposal.

A Swiss official said that while he could not comment at this point, certainly the European governments would be bound by Article 10 of the European Convention on Human Rights. According to the article, restrictions on freedom of expression rights must be tightly limited, be based on the rule of law, and be proportional.

The US comments (and all others) are expected to be first discussed in the GAC internally, the Dutch GAC member said, who added that they are a good starting point. But he did not expect that the “GAC will agree on a ‘veto power’.” Many countries would find this to be against the bylaws “in which we have an advisory role.” he said.

Were the GAC be part of the selection process, it would also risk becoming a party to litigation. The GAC should have a strong say, and “warn the Board that certain strings could have a negative impact by offending religious, cultural, ethnic communities, inciting hate, regarded as criminal in certain countries, etcetera, etcetera, but it is up to the board to decide in the end,” he said.

The German Ministry of Economy and Technology similarly answered that while the GAC and the ICANN Board are looking for solutions to put an end to their ongoing differences over the introduction of new TLDs, “a final decision is up to the ICANN Board.”

“Before decisions are taken,” the ministry said, “the individual stakeholder groups are consulted based on the self-regulatory model of the internet. Our ministry expects that this will be the model for the future, too.”

With regard to the veto right for governments, the ministry said it would “carefully consider if a formal veto right was an adequate instrument” to represent positions of nation states in ICANN.

Meanwhile, ICANN’s Board chair announced another postponement for the finalisation of the new TLD application procedure. Clearly, he expects more discussions down the road, making the March San Francisco meeting too early a deadline.