ICANN should reconsider its decision to quarantine .DOCTOR, given that it’s not even sick.

In an utterly surprising move, ICANN staff and the Board’s New gTLD Program Committee (“NGPC”) recently informed the applicants for .DOCTOR that it has singled out the gTLD as a test case for controlling content and limiting speech on the Internet.

In the epitome of top-down policy making, ICANN issued an edict that it will implement nearly year-old advice from the Government Advisory Committee (“GAC”) differently from all other similarly situated gTLDs and in contravention of subsequent GAC advice. This major difference would require that all second level names in the .DOCTOR gTLD “are ascribed exclusively to legitimate medical practitioners.”

This arbitrary move—which would suddenly impose prior restraint on the wide possible expressive uses for the gTLD—is far from rooted in bottom-up consensus and occurs more than a year into the availability of new gTLDs and after “regulated” and “highly regulated” strings had been identified and sorted out. It is shocking that ICANN changes the rules yet again at the last minute.

It’s confounding for ICANN to pronounce that the generic term “doctor” cannot be trusted with anyone but one limited group of potential users. ICANN does not require discrimination against legitimate and lawful uses of other “regulated” or “highly regulated” TLDs, such as .LAWYER, .ATTORNEY, .DENTIST or .SURGERY. Why is .DOCTOR being singled out this way, particularly considering the wide variety of uses of the term?

ICANN now has the opportunity to reconsider its mandate that registrants in this gTLD be “by invitation only,” with ICANN issuing the invitations.

The ICANN Board should correct this wrong and prove to all of us working on new ICANN accountability mechanisms that it can rectify its mistakes, that it won’t single out one gTLD for disparate treatment, and that it won’t discriminate against categories of legitimate registrants and uses of a generic word.

ICANN: Conferring a monopoly, controlling content

If this edict is allowed to stand, “doctors” of all stripes—except for those ICANN finds worthy—would be frozen out of a useful gTLD. Juris doctors, doctors of dental surgery, Ph.D.s of every sort, even veterinarians… all could be censored on the Internet because they earned the wrong version of the title.

Such is an amazing monopoly for ICANN to confer, a monopoly no national or international law awards medical doctors. ICANN should not attempt to create new rights in cyberspace—for a limited class that it selects—that aren’t already enshrined in law. As ICANN CEO Fadi Chehade recently testified before the U.S. Senate, ICANN is not in the content control business, and therefore does not determine who can speak on the Internet:

“Let me first be clear that ICANN has nothing to do with content. We do not deal with content. Our work is very limited to the names and numbers and the protocol parameters which are way down in the plumbing of the Internet.”

Yet this last-minute attempt to do exactly that would confine the content of the .DOCTOR gTLD to only medical discourse by those that—through no defined process of determination—are “legitimate medical practitioners.”

This requirement sets up a preposterous scenario where any medical doctor could register MATHEMATICS.DOCTOR, but a Ph.D. in mathematics could not; where a pediatrician could register JURIS.DOCTOR, but a lawyer or judge could not; or where a nephrologist could register DNSPOLICY.DOCTOR, but Drs. Crocker or Tonkin could not. By this same logic, the next step would be to require the landscaping company “Lawn Doctor” to change its corporate name.

Even some on the ICANN Board find this absurd. At the Buenos Aires meeting, Board member Chris Disspain convincingly reasoned that the term “doctor” is generic and should not be restricted:

”...in many, many countries, the term “doctor” is used as a name of businesses. A computer doctor. If you—There are often—It’s a term that is used. It’s not a regulated term. It’s a term that is used in business names, in company names for people who fix things. And there is no prohibition on the use of that term. It is an open term. And the reason is because it’s actually a medical doctor, and the—I mean, there are all sorts of reasons.”

Mr. Disspain is correct—the generic term simply has wider utility than its application to just medical practitioners, and such alternative uses are perfectly legitimate and should not be the subject of discriminatory restriction.

Consumers can be protected without ICANN engaging in discrimination

We’ve already been through this debate and vetting. No one disputes that .DOCTOR should be subject to all the requirements of “highly sensitive” strings that are required by other gTLDs identified by the NGPC and the GAC. It defies logic, however, that .DOCTOR is sequestered from other highly sensitive strings that already are in the market and have a set of protections in place.

In those TLDs, ICANN did not limit the gTLD based on the usage of a generic term (e.g., .LAWYER has not been targeted for restriction only to “legitimate legal practitioners”). ICANN cannot and should not single out .DOCTOR for disparate treatment, especially without community support or any basis in law.

Such discrimination disregards GAC advice offered subsequent to the Buenos Aires meeting. In London, the GAC advised, in the context of Category 2 gTLDs, that “applicants . . . should not provide undue preference or discrimination against domain name registrants.” The same should be true in this context.

ICANN’s and the GAC’s goals are laudable, but the current mandate goes too far. They are trying to prevent consumers from being confused into thinking someone offering medical advice under a .DOCTOR name is licensed when he or she is not. Deception of the type ICANN is raising already is prohibited and would be prevented by existing safeguards. Moreover, any nefarious registrations in .DOCTOR already are prohibited by law (in multiple jurisdictions), and any such names would be taken down under the mandatory terms and conditions of use of the gTLD. The new requirement, however, deserves a more reasonable touch—as is the case in other highly sensitive strings. We shouldn’t ban broad categories of speech to address one potentially problematic use that could be addressed specifically.

While a registry might choose to limit its customer base to a specific group as part of its business plans, we didn’t make that choice. A regulatory mandate banning speech by all but a subset of speakers would violate the tenets of the United States First Amendment, as well as various other international rights to freedom of expression.

We have filed a request for reconsideration of this action, and expect that reason will prevail. In the meantime, this overreach is bad policy—it’s clear to us and we suspect it’s equally clear to ICANN. It enjoys no equitable basis in process, law, or even common sense. We call on the ICANN Board to reverse this decision, thereby proving current accountability mechanisms could actually work and ICANN is truly ready to be independent.