Civil Society Statement on GAC Sub-Group's Proposal on "Geographic Names" in Top Level Domain Names

[Edward Morris]

In memory of Mr. Cleveland Boston, a former minor league hockey player for 
the Portland Pirates, please add me as an individual signatory on the 
statement. What really upsets me about the GAC document is that it reflects 
a reality that doesn't exist. It's nice that the GAC understands that there 
are differences between trademarks and domain names. Nice if the IPC would 
recognise this. They then try to create a special category of domain names 
that exist only subject to government approval. As with sunrise B with .XXX, 
amongst other situations, we could have words disappear without a trace, at 
least in terms of domain names. This is absurd and is every bit as bad as 
the most maximalist positions in the i.p. community. Thanks for working on 
this Robin. Fully support.



-----Original Message-----
From: Robin Gross <robin at IPJUSTICE.ORG>
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Date: Tue, 30 Dec 2014 11:01:01 -0800
Subject: Re: Civil Society Statement on GAC Sub-Group's Proposal on 
"Geographic Names" in Top Level Domain Names

FYI:  Here's the text again:

Civil Society Comments on the Proposal of the ICANN GAC Sub-Group on 
Geographic Names

 

December 2014

 

Introduction and Summary

 

Thank you for this opportunity to provide comments on the proposal in the 
document entitled, “The protection of geographic names in the new gTLDs 
process,” published by ICANN’s Governmental Advisory Committee (GAC) 
Sub-group on Geographic Names regarding future rounds of gTLDs and dated 29 
August 2014.[1]  We caution against the adoption of the proposal because it 
would threaten to chill freedom of expression and other lawful rights to use 
words in domain names, stifle innovation, and undermine the 
multi-stakeholder model for Internet governance.  The proposal is based on 
flawed presumptions of law and “the public interest” and is entirely 
unworkable from a practical standpoint.

 

The GAC sub-group proposes that “geographic names should not be allowed to 
be registered as gTLDs, unless requested by the relevant communities where 
they belong or after a specific authorization given by the government or 
community to the applicant.  The national community and geographic meaning 
of the requested strings as new gTLDs must prevail above any other 
interest.” 

 

The proposal asserts that ICANN’s Applicant Guidebook text should be 
amended to state: “ICANN should 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.” 

 

The proposal attempts to apply national law pertaining to geographic names 
to domain names, although it goes much further, and re-asserts the 
controversial 2007 GAC Principle: “New gTLDs should respect national 
sensitivities regarding terms with national, cultural, geographic and 
religious significance.”  ICANN’s Board wisely rejected that 2007 GAC 
Principle, which opens the door for governmental censorship of domain names.

 

Unfortunately this proposal is based on fundamental misinterpretations of 
international law around geographic names; it is overbroad, vague, 
arbitrary, and entirely unworkable in practice.  Furthermore, it would 
severely chill freedom of expression, innovation, and the free flow of 
information on the Internet should the proposal become global domain name 
policy. 

 

One of the historical reasons the Internet has flourished is precisely 
because permission was not required of governments before ideas were allowed 
to be expressed or otherwise spread in the domain name system.  Yet this 
proposal undermines the principles of permissionless innovation and freedom 
of expression by creating a “permission-required” domain name system, 
although permission from whom and for what is entirely unknowable in 
advance.

 

Proposal Based on False Understandings and Misapplications of Law

 

Despite the document’s labeling of this proposal as pertaining to 
“geographic names” there is nothing in international law to support the 
proposal’s creation of new worldwide exclusive rights to control the use 
of words in the domain name system. 

 

The proposal misapplies trademark law and conflates national regulation of 
geographic indicators with an exclusive worldwide right to regulate language 
in domain names.  Legal rights regarding geographic indicators only regulate 
the commercial use of marks in connection with specific goods and services, 
and in only specific territories – they do not create a blanket right to 
regulate the use of words in the domain name system in all categories of 
goods and services, and in all nations of the world. 

 

International law pertaining to the restriction of sovereign names and 
identifiers does not recognize geographic names outside of a specific 
country’s borders.  The proposal ignores important territorial 
restrictions and extends protection to the entire world.  This proposal 
would create worldwide exclusive rights for governments to regulate the use 
of words in domains that are not legitimately based in any law.

 

 

“Public Interest” Presumed Prematurely

 

Besides the fundamental misapplications of law, the proposal also relies 
upon questionable presumptions of what is in the “public interest” and 
thus the most appropriate policy for ICANN to pursue.

 

ICANN domain name policy impacts many diverse stakeholders with a variety of 
legitimate interests, including freedom of expression rights and other 
noncommercial interests, commercial interests, and the interests of 
governments.  All of these are supposedly balanced in the policy development 
process to reach a consensus that takes into account all the stakeholders’ 
interests.

 

In contrast, the GAC document boldly asserts: “The national community and 
geographic meaning of the requested strings as new gTLDs must prevail above 
any other interest.”  No argument is given for this proposition, however.

 

ICANN’s policy development process was established to balance the various 
competing legitimate interests, including the interests of governments, so 
it is not appropriate for a GAC sub-group to presume that in that 
conversation among all interests that the governments’ specific view would 
naturally prevail as “the public interest.”  Let’s not skip the 
conversation with all stakeholders about what policy would best reflect the 
public interest.  A discussion about the rights of Internet users to free 
expression weighed against a government’s interest to regulate words used 
in domain names would be a good starting point.  This proposal presumes that 
a single stakeholder (the GAC) is the exclusive arbiter of “the global 
public interest”, a position that significantly undermines ICANN’s 
multi-stakeholder policy development process.  

 

Undermines Freedom of Expression Rights

 

One of the biggest concerns with the proposal’s implementation is its 
chilling impact on freedom of expression in the Internet domain name system. 
While the document never uses the word, what it proposes in operation is 
censorship.  The proposal entirely ignores freedom of expression rights in 
domain names and makes no mention or consideration for those legitimate 
interests of Internet users in its analysis.

 

Since the Internet’s inception, courts of law throughout the world have 
generally recognized Internet users’ freedom of expression rights to use 
domain names.[2]  Indeed the World Intellectual Property Organization (WIPO) 
cites freedom of expression rights as one of the primary reasons that there 
are so many disputes regarding the use of Internet domain names.[3]

 

Article 19 of the Universal Declaration of Human Rights guarantees everyone 
the right to freedom of opinion and expression including the “freedom to 
hold opinions without interference and to seek, receive and impart 
information and ideas through any media and regardless of frontiers.”  
There is no exception made for exchanging ideas in the Internet domain name 
space; indeed the guarantee is explicitly clear that free speech rights 
apply regardless of the type of media and the breadth of the reach of the 
communication.  Article 19 of the UNDHR speaks directly to the Internet age 
and global domain name policy, although adopted the UN General Assembly half 
a century ago.  Other international legal instruments such as the 
International Covenant on Civil and Political Rights create similar free 
speech obligations, which are binding on nations to protect the rights of 
Internet users to communicate freely on the Internet.

 

The GAC proposal ignores the existing new gTLD policy passed by ICANN’s 
GNSO Council, including “Principle G”, which states, “The string 
evaluation process must not infringe the applicant’s freedom of expression 
rights that are protected under internationally recognized principles of 
law.”  Recommendation 3 of ICANN’s “Implementation Guidelines” 
reinforces the GNSO’s intention to respect domain name applicants’ 
freedom of expression rights in domain names.[4]  These initial protections 
built by the GNSO to protect applicants’ free expression rights would be 
significantly curtailed by the policy change proposed by the GAC sub-group.

 

Despite longstanding internationally accepted and legally binding 
obligations to protect freedom of expression and the GNSO’s effort to 
protect free expression in the initial policy, the GAC proposal does not 
even consider these rights, nor does it consider free expression as 
furthering the public interest anywhere in its analysis.

 

Important public governance obligations, such as protection for free 
expression rights, cannot be avoided simply by outsourcing governance 
functions to private corporations, such as ICANN.  It is no longer an 
acceptable argument to claim that because ICANN is a private corporation, it 
owes no obligation to protect Internet users’ free expression rights.  
ICANN undertakes public governance functions and so will have to evolve its 
understanding of the responsibilities it has to protect the fundamental 
rights of Internet users in its policies, especially if it wishes to 
maintain those functions in the future.

 

Unworkable Practically: Too Broad, Uncertain, and Vague

 

Another significant concern about the proposal to restrict geographic names 
is that it is completely unworkable from a practical standpoint.   The 
proffered restriction on entire categories of words in domain names is 
excessively broad, vague, uncertain, and arbitrary.  Given the broad 
categories of words restricted, the different meanings of words, and the 
many languages in the world, it would be impossible to predict which words 
must receive advance permission before ICANN will consider them in a gTLD 
application.

 

The proposal reaches too far – it would restrict any and all words that, 
in a single government’s view, are of “national interest” – 
including names of “regions of countries, regions of continents, 
sub-regions of countries, rivers, mountains, among others.”  Although not 
geographic names per se, the GAC Sub-group’s proposed restrictions 
additionally extend to words that describe people or languages.  How could 
any applicant realistically be expected to know which words every government 
(or other relevant authority) in the world lays claim to?  Obviously such a 
policy is unworkable due to the overly broad, vague and uncertain 
abridgements on expression it would impose.  Additionally, the proposal’s 
arbitrariness is ripe for abuse and confusion in the administration of the 
domain name system.

 

The proposal is also problematic for its substantial lack of clarity 
regarding which “relevant governments or public authorities” must 
provide permissions before a word can be used in a domain name.  Take the 
simple yet illustrative example of the Great Lakes Region and international 
waterway straddling Canada and the U.S.  From whom should an applicant 
obtain permission before the words “Great Lakes” can be used in a gTLD?  
Who are the “relevant governments and authorities” that must provide 
permission before the gTLD can go forward in such case?  Is it the 
government of the United States, Canada or both?  Perhaps the State of 
Michigan or the province of Ontario must be consulted, too.  What about the 
sovereign Indian Nations after which the Great Lakes of Huron, Ontario, 
Michigan, and Erie were named – would their permission be required also 
should any application include those words?  The lack of clarity as to which 
relevant authorities must provide advance permission for a gTLD application 
to go forward and the lack of clarity as to which words require advance 
permission render the proposal entirely unworkable from a practical 
standpoint.

 

Under the GNSO’s adopted policy, Recommendation 1 of its New gTLD 
Implementation Guidelines clearly states that “all applicants…should be 
evaluated against transparent, and predictable criteria, fully available to 
the applicants prior to the initiation of the process… No subsequent 
selection criteria should be used in the selection process.”   How the GAC 
Sub-group’s proposal on geographic names could be adopted without 
repealing the GNSO’s policy, which requires objectively knowable and 
predictable criteria, has not been discussed.

 

A Permission-Required DNS is Anti-Innovation

 

Another problematic aspect of the GAC Sub-group’s proposal on geographic 
names is the number and complexity of permissions required before gTLDs are 
allowed to proceed. This will have a stifling effect on innovation.  The 
proposal adds burdensome red-tape, will slow the development of the 
Internet, and saddles consumers with higher costs and restricted choices.  
This plan basically creates a veto power that any government or other 
relevant authority could exercise over any proposed gTLD.  It invites 
politicization into the DNS administration, which is unhealthy to the growth 
and development of the Internet.

 

Permissionless innovation is a fundamental characteristic of the Internet 
that contributed dramatically to its growth and beneficial development.  It 
would be unfortunate for ICANN to move the DNS into a permission-required 
environment, where any government in the world can veto any gTLD which 
contains a word it unilaterally claims invokes national sensitivities. 

 

An analysis of the possible benefits of the proposal weighed against the 
harms to innovation and free expression would be an important step of any 
serious consideration of such a policy’s adoption.

 

Inappropriate Forum - Policy Laundering?

 

ICANN is an inappropriate forum to undertake the creation of new 
“intellectual property like” global rights to geographic names.  As a 
technical coordinator, ICANN is not an international legal regime and its 
board has neither the expertise nor the authority to create new exclusive 
rights to categories of words.  If the governments in the GAC Sub-group 
believe there is a legitimate need for such new rights, those efforts should 
be directed toward proper lawmaking and treaty channels.  International 
legal regimes such as the World Trade Organization or WIPO were established 
by governments to harmonize legal rights across borders and similar 
proposals around geographic names have been debated for years at the WTO and 
have failed.

 

Inventing exclusive new global rights to words would seriously undermine 
ICANN’s legitimacy and credibility to manage the domain name system.  At a 
time when many are watching ICANN to see if it has matured enough to be cut 
lose from the US NTIA, opening itself up to charges of “policy 
laundering” by inventing new rights to geographic names would not help the 
organization’s credibility.  While the proposal’s drafters may have some 
legitimate concerns regarding the use of certain limited geographic names, 
ICANN is not the appropriate forum for creating such new rights.

 

Conclusion:  An Unbalanced Proposal that Should be Rejected

 

The GAC Sub-group’s proposal to amend ICANN policy to grant governments 
and other “relevant authorities” a veto over any new gTLD application is 
very problematic and should be rejected.  It is based on a dubious 
interpretation of international law and questionable conclusions as to what 
policy best reflects the public interest as a whole.

 

The proposal is excessively broad in the categories of words that it 
restricts and excessively vague and burdensome in the permissions it 
requires to proceed with a gTLD in future rounds.  Freedom of expression 
rights to domain names would be severely abridged and innovation stifled by 
the ability of any government to veto any gTLD as proposed. Furthermore the 
proposal re-asserts the controversial 2007 GAC Principle that requires gTLDs 
to “respect national sensitivities regarding terms with national, 
cultural, geographic and religious significance.”  Thus the proposal sets 
a dangerous precedent for building government censorship into the DNS.  In 
other words, it is a bad policy for Internet freedom that should not be 
adopted. 

 

 

Respectfully submitted,

Organizations: 

IP Justice

Internet Governance Project

Public Knowledge

Article 19

Electronic Frontier Finland

Movimento Mega (Brazil)

Bangladesh NGOs Network for Radio and Communication 

Digital Rights Ireland

Bytes For All (Pakistan)

Electronic Frontiers Australia

Open Institute Cambodia

Access Humboldt

Individuals:

 Timothe Litt

Nicolas Adam

Dan Krimm

Kathy Kleiman


[1] Available at 
https://gacweb.icann.org/download/attachments/27132037/Geo%20names%20in%20new%20gTLDs%20Updated%20%20V3%20%2029%20august%202014%5B4%5D.pdf?version=1&modificationDate=1411549935000&api=v2

[2] See Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Circuit 2003) “the 
domain name is a type of expression, no different in scope than a billboard 
or a pulpit”.  See also Shell Trademark Mgmt. BV v. Canadian AMOCO, No. 
02-01365, 2002 U.S. Dist. LEXIS 9597, at *10-11 (N.D. Cal. May 21, 2002) 
analogizing domain names to road signs.  See also Center for Democracy and 
Technology v. Pappert, 337 F. Supp.2nd 606, 651 (E.D. Pa. 2004) holding a 
statute requiring the blocking of access to particular domain names and IP 
addresses amounted to an unconstitutional restraint on speech. See also ACLU 
v. Reno which held that the Internet is entitled to the full protection 
given to media like the print press under freedom of expression rights. 521 
U.S. 844 (1997).

 

[3]  http://www.wipo.int/amc/en/center/faq/domains.html

 

[4] 
http://gnso.icann.org/en/issues/new-gtlds/summary-principles-recommendations-implementation-guidelines-22oct08.doc.pdf






On Dec 30, 2014, at 10:17 AM, Robin Gross wrote:

Thanks for the support, folks!   If there are other organizations who would 
like to sign-on to the civil society statement, please let me know today.  
Also, I've received some requests for individuals to sign-on as well, and so 
have opened up the statement for individuals to also endorse should one wish 
to.  

So if any individual or organization would like to sign-on to this joint 
civil society statement, please let me know within 24 hours from now.

Thanks again!

Best,
Robin


On Dec 28, 2014, at 10:25 PM, Robin Gross wrote:

Hello All,

If any of NCSG's member organizations (or NCSG as a whole) would like to 
sign-on to this civil society statement regarding a GAC sub-group's proposal 
to give governments veto power on new top level domain names that use 
"geographic names" please let me know asap.

The GAC sub-group's proposal on "geographic names" and other comments 
submitted on this proposal are available here:
https://gacweb.icann.org/display/gacweb/Governmental+Advisory+Committee

The GAC's deadline for comments is 31 December, so please let me know by 30 
December if your civil society organization would like to sign-on to this 
joint civil society statement; it is currently open for sign-on by other 
civil society organizations until 30 December.  Or send in your own comment 
on the proposal if you are so inclined (at the link above) by 31 December.  
Holiday deadlines are tough, I know!  

I think this is a very important policy issue for protecting freedom of 
expression and the positive development of the multi-stakeholder model for 
Internet governance.

Thanks very much!

All best,
Robin

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