The most notable thing about the EC Papers on ICANN, which were leaked by Kieren McCarthy last week, is that they are designed to completely subordinate ICANN as an institution. We have not seen such a comprehensive attack by a government on ICANN since the World Summit on the Information Society. One can infer that this is payback for the Board’s decision to not treat the EC’s views, expressed in its Governmental Advisory Committee (GAC), as binding instructions rather than as nonbinding advice.

So now we have no less than six papers from the EC attacking almost every aspect of ICANN, from the growth in its staff to the new TLD program to its handling of ccTLDs. Moreover, the papers are clearly targeted at influencing the US government’s redraft of the IANA contract in ways that would be deeply unhealthy. While ICANN could certainly use some reforms, this set of attacks is just a destructive act of revenge rather than a good-faith effort to reform the organization or improve its policies.

The IGP blog is reviewing each of these papers. In this post for CircleID I concentrate on its second ICANN paper dealing with the new gTLD process.

The new gTLD process still seems to be controversial. But whatever your view on the merits of new gTLDs, you cannot have a global manager of the domain name system without some kind of agreed policy for adding new top level domains to the root. so the issue is not whether they do this, but how. New TLD policy is important to people outside of the domain name business for two reasons. First, as a form of economic policy it should open the market to new ideas and new forms of competition. Second, any policy that regulates the creation or operation of new domains based on their meaning or the content underneath them is, de facto, a form of globalized content regulation.Thus, even people who think domain names are not that important need to pay attention to what happens in this space, especially now that domain take-downs are becoming an increasingly common form of state intervention.

In its second ICANN paper, the EC has taken the worst possible position on both aspects of new TLD policy. Its paper is radically inimical to freedom of expression, and would erect huge, unnecessary economic barriers to entry. It is also destructive institutionally: it proposes to subordinate Internet community self-governance to hierarchical control by nation-states. The EC Paper New gTLD Process proposes to allow governments, through the Governmental Advisory Committee (GAC) to take complete control over what new top level domain names are allowed to exist. As such, it shows that the EC refuses to accept the legitimacy or the authority of the multi-stakeholder process that resulted in the policy. It wants to revert to an intergovernmental system—just like China, Russia, Iran and Syria. Do they understand the implications of what they are doing? The most charitable conclusion is that they do not.

The paper proposing these radical changes was only accidentally leaked to the public. The EC—which routinely engages in public consultations on policy documents—developed these recommendations in secret and never allowed the European public to see or comment upon them. The EC’s policy proposals, therefore, are completely lacking in democratic legitimacy, making the paper’s claim that it represents or speaks for the public interest in this matter an act of blatant hypocrisy.

The charge that the EC approach constitutes a governmental takeover of the top level of the DNS may sound exaggerated, but it is not. Here is the proof: 1) The EC explicitly supports the NTIA’s proposed modification of the IANA contract, which would replace the objective procedural and substantive criteria of ICANN’s Applicant Guidebook with a subjective determination by a technical body that a new top-level domain “has received consensus support from relevant stakeholders and is supported by the global public interest.” 2) The EC says that “the European Commission considers that defining what constitutes consensus (including how it is achieved and expressed) lies within the prerogatives of GAC itself.” 3) Voila! All new TLD applications must demonstrate “consensus support,” and the GAC itself will unilaterally determine what constitutes consensus. Any proposed service or domain that governments don’t like can be vetoed by GAC.

This demand for control is particularly astounding given the concessions that the ICANN Board has already made to the GAC. Without any support from the public, the Board agreed to notify governments about the applications received and “invite” them to indicate which TLDs might raise “public policy concerns.” This is called the “GAC early warning.” “Public policy concerns,” of course, is a term of art in ICANN; it has no objective definition so that, in practice, it means that governments can try to block or censor any content or applicant that they want, simply by claiming that the application raises public policy concerns. In addition, the GAC will be able to raise formal objections later in the process. The potential to exert a heckler’s veto is, apparently, not enough. The EC wants any government in the world, including ones with no human rights guarantees and established records of repression, to be able to kill applications by claiming that they don’t have consensus. And under the EC’s definition of “consensus,” each government could use its own lack of support as evidence of a lack of consensus. It is a recipe for a governmental veto of any and every new domain.

But that is not all. The EC wants the GAC, which has no legal authority and no ratification process that subjects it to national or international law or judicial appeal, to become a legislator that can create a list of words that no Internet user in the world can register. The EC paper says that “GAC members [should be able to] request the reservation or blocking of domain names at the second level under new gTLDs. It should do this by constructing a censorship list, which it calls a “reference list for all new gTLD operators to use and ICANN should ensure compliance through the contract it negotiates with new gTLD registry operators.” And more: “The contractor should also be required to ensure that governments and public administrations can raise concerns about particular names after their registration if a serious public order concern is involved, and with a view to the registry “taking down” the name concerned.” Try to imagine 150 of the world’s governments sitting in a room and agreeing on what words should not be available to the world’s users: this is what the EC is proposing.

It gets even worse. The EC wants all applications to “demonstrate a minimum level of support from the respective community that the TLD intends to serve” before the GAC even has to consider it. Of course, demonstrating support from a community is a standard that practically every truly innovative Internet concept is unable to meet. New ideas, by definition, don’t have support precisely because no one has ever thought of them before. Moreover, many new ideas are threatening to old ideas or operators, and thus will be sure to generate objections. New proposals succeed because their backers are free to offer them, and people support them only after they are offered. It would have been impossible for the TCP/IP protocols, for example, to demonstrate any support among the world’s data communication users before the Internet was put into operation. Worse, this requirement of demonstrated support is sure to kill any application or idea that is the least bit controversial. Any vocal segment of a community will be able to object to, and kill, any proposal.

Another disturbing aspect of the paper is that it reinforces the American government’s growing tendency (urged on them by trademark holders) to try to make the IANA contract a regulatory system. As we have demonstrated in other posts, because lobbyists from a few big corporations are unhappy with the compromises they have had to make in the ICANN process, both the U.S. NTIA and now the EC want to abuse the IANA contract, by forcing it to make vague “public interest” and “consensus” determinations which would no doubt be heavily influenced by governmental pressure.

In terms of its regard for the freedom and openness of the Internet, this is a document that could have been prepared by the governments of Iran, China or Saudi Arabia. Europeans should be ashamed of their putative government, and rights advocates there should challenge the Commission papers and expose them as lacking in any public support. The EC officials who developed these proposals should be pressured to resign.