Original URL: https://www.theregister.com/2007/07/02/icann_core_neutrality/

Run free little root zone

Hard core for core neutrality

By Burke Hansen

Posted in Networks, 2nd July 2007 10:07 GMT

ICANN San Juan 2007 The fight over trademark rights got a welcome rematch last week, as the "free expression" contingency took the stage.

Tuesday's intellectual property constituency (IPC) was dominated by American trademark attorneys, and an opposing group of attorneys and assorted other interested parties hit the ground running on Wednesday. The buzz words here are "core neutrality", a concept that basically advocates root zone content neutrality at the top level domain (TLD) approval level. The scars of the .xxx fiasco run deep, apparently.

As board member Milton Mueller noted, the basic argument could be phrased thus: ICANN has a purely technical mandate, somewhat analogous to that of a public utility, and therefore should only deny TLD applications that clearly disturb the stability of the root zone itself. If governments want to prohibit their citizens from accessing certain information, the argument goes, they can take responsibility for it themselves via standard legislative procedures or international treaties, rather than through some back room deal at ICANN without any public input or accountability. Sounds fair enough, right?

Well, not for everyone.

Continental Europeans in particular seem to have a peculiar faith that some noble bureaucracy at ICANN - should it relocate to Brussels? - will make the correct choices for the worldwide internet community. The argument from that side of the aisle generally went along the lines of, we can do it the easy way through ICANN, or let individual countries take control and they'll do it the hard way. Soft censorship beats hard censorship.

What about .jihad, they say? What about .gay? Well, what about .xxx?

None of those - or even grotesquely offensive top level domain names - are prohibited at a secondary domain level, or even a content level, so what's the big deal? In a welcome age of TLD proliferation, why is second tier domain blasphemy OK, but the TLD kind is out of the question?

Board member Milton Mueller also noted that there has never been any form of global regime for media content - haven't needed it in the past, and there's really no reason to start now. After all, where's the mandate for that in ICANN's bylaws?

The .xxx experience clearly has marked ICANN's thinking on this issue - although chairman of the board Vint Cerf told me political pressures had nothing to do with rejecting the .xxx TLD, although someone else closely involved laughed at the idea that pressures from the government affairs advisory council (GAC) had nothing to do with the ultimate rejection of a TLD that had met the financial and technical requirements and had already been informally approved. The litigation in that case is still working its way through the court system.

Perhaps the most sensible proposal for an approval process that is essentially content neutral but understanding that certain things might really be beyond the pale came from former ICANN board member Michael Palage, who suggested a requirement that any TLD approved be required to be lawful in at least one international jurisdiction. Not necessarily formally government sponsored, but at least government approved and legal in one place on the planet, thereby preventing the possibility of an entire TLD being shut down and its board members thrown in the brig. It would also be an informal acknowledgment of the true diversity of jurisdictions touched by the internet and ICANN's work.

The other main concern broached at the session concerned attempts by the American trademark community to broaden its reach to include potential new TLDs, thereby constraining the rapidly expanding gTLD space. Trademark law professor Christine Farley from American University, who had flown in uninvited just to speak at this session, gave an excellent overview of the current state of American trademark law and how that might impact developments in the TLD area.

As far as Professor Farley is concerned, extending TLDs from their traditionally geographic scope to one of universal acknowledgment is a kind of virtual land grab by the America trademark industry. Professor Farley noted the example of Delta Airlines vs. Delta Faucets vs. Delta Dental - who really owns "delta"? She also reminded the audience that there really is nothing that hasn't been trademarked somewhere, and if we grant new acknowledgment of trademarks at the TLD level - a topic under serious consideration at ICANN - the end result will be more trademark confusion, rather than less.

That wasn't the only argument against this idea, either. As Wendy Seltzer, formally of the Electronic Frontier Foundation (EFF) also noted, granting trademark rights in TLDs opens the approval process to what she referred to as the "heckler veto", which is almost the inverse of the cybersquatter - in this case using misapplied trademark principles to hold back the ongoing expansion in gTLD options for consumers, rather than using existing trademarks as extortion tools.

Here at El Reg, we have argued in the past for consistent, clear principles for gTLD approval. There is no reason for governments to require ICANN to do their dirty work for them - if they want to prohibit certain kinds of behaviors there is no reason to censor it at the root zone level, thereby censoring the entire universe of internet users, rather than only their own citizens. The best way for ICANN to avoid the appearance of impropriety is to stand firm on the principle that its only mission is the technical stability of the internet, and leave the content decisions to national governments.

Of course, the root zone has always been restricted - after all, there used to be just .com. But if ICANN truly wants to fulfill its stated mission of expanding competition in the TLD area, it should stand back and focus on its core mission of preserving root zone stability, avoiding only those TLDs that are confusing or disruptive to the zone itself.

Accountability has been the buzzword of the day - and in this context, accountability means ICANN should stick to its guns and fulfill the responsibilities it was set up to handle. Core neutrality is a principle worth fighting for.

Burke Hansen, attorney at large, heads a San Francisco law office