[council] Fyi - ACLU Comments on New Top Level Domains

[Mike Roberts <roberts@icann.org>]

NC Members -

We received today a communication from the American Civil Liberties 
Union whose content, although in some respects well meant, was 
woefully short of the professionalism that such an organization 
should be capable of.  In addition to considerable confusion about 
what has actually been going on re new TLDs, it demonstrates the type 
of US-centric legal sabre rattling in the third last paragraph which 
is an affront to the principles set out in the White Paper.

It also, and the reason for this communication, ignored the hard work 
of the DNSO WG's and NC on this complex subject.  My response and 
their letter are appended.

- Mike Roberts

---------------

Date: Fri, 3 Nov 2000 13:42:41 -0800
To: Barry Steinhardt <Barrys@aclu.org>
From: Mike Roberts <roberts@icann.org>
Subject: Re: ACLU Comments on New Top Level Domains


Barry - Thanks for your contribution.  Like others, it will be posted 
for community scrutiny and comment.

Given the ACLU's commitment to both sides of issues, I was more than 
a little surprised to see the extent to which your document makes 
statements that are clearly erroneous.

For instance, it is a well known fact that the existing DNS top level 
domains are in no danger whatever of running out of name space. There 
are more than 250 top level domains operating today and there are 
billions of name choices not taken.  Not to mention the work 
currently proceeding in the Internet Engineering Task Force and 
elsewhere on multilingual extensions to the DNS which will open names 
in non-Roman languages for the first time in 2001.

What you might have meant to say is that there is an alleged scarcity 
of commercially attractive names closely aligned with existing or 
prospective trademarks that are important to the plans of many 
businesses.  The ability of the DNS to serve the interests of 
worldwide businesses is of course important to ICANN, but it is only 
one of a range of issues to be considered, as you point out.

I was also surprised that your letter makes no mention of the year 
long process in which our Domain Name Supporting Organization and its 
Working Groups considered  at considerable length many of the issues 
raised in your letter.  Nor of the extensive opportunity for public 
comment ( both electronically and in person) prior to and at the 
Yokohama meeting during which the Board adopted policy on the 
introduction of new Top Level Domain names and registries.  If you 
somehow happened to miss them, I commend to your attention the 
resolutions on this subject adopted in Yokohama, among which is the 
statement, relating to the criteria to be used in evaluation of 
applications,

"The extent to which selection of the proposal would lead to an 
effective "proof of concept" concerning the introduction of top-level 
domains in the future, including the diversity the proposal would 
bring to the program, such as fully open top level domains, 
restricted and chartered domains with limited scope, noncommercial 
domains, and personal domains;   and a variety of business models and 
geographic locations."

The full text is at:  <http://www.icann.org/minutes/prelim-report-16jul00.htm>

In short, not only is diversity a current concern of the Board, but 
it has been for quite some time.

Best regards,

- Mike

Michael M. Roberts
President and Chief Executive Officer
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, California 90292
310-823-9358 voice
310-823-8649 fax



At 15:24 -0500 11/3/00, Barry Steinhardt wrote:
>Mr. Roberts,
>
>Attached you will find ACLU's comments on the issue of new Top Level 
>Domains. Since our comments raise fundamental issues about ICANN's 
>direction in this area, I thought I should send them directly to you 
>as well as posting them to the ICANN site.
>
>I would be happy to discuss this matter with you in more detail.
>
>
>Thank you,
>
>Barry Steinhardt
>
>Barry Steinhardt
>Barrys@aclu.org
>Associate Director
>American Civil Liberties Union
>125 Broad St. New York, NY 10004
>212 549 2508 (v) 212 549 2656 (f)


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):

… transforms ICANN into an arbiter of speech rights which makes 
content based decisions about which domain names may exist,
… leads to unnecessary competition,
… compounds various intellectual property problems, and
… 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