Regulating Online Content through the Internet Architecture: The Case of ICANN's new gTLDs

Author:Caroline Bricteux
Pages:229-245
SUMMARY

The process introduced by the Internet Corporation for Assigned Names and Numbers (ICANN) to assess and allocate new generic top-level domains (gTLDs) offers a vehicle for content regulation at two levels. First, regarding the gTLD itself, objection procedures were set up to allow third parties to challenge an applied-for gTLD deemed to be contrary to "general principles of international law for... (see full summary)

 
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Regulating Online Content through the Internet Architecture
2016
229
3
Regulating Online Content through
the Internet Architecture
The Case of ICANN’s new gTLDs
by Caroline Bricteux*
© 2016 Caroline Bricteux
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Ca roline Bricteux, Regulating Online Content throug h the Internet Architecture: The Ca se of ICANN’s
new gTLDs, 7 (2016) JIPITEC 229 par a 1.
Keywords: ICANN; gTLD; content regulation; International Chamber of Commerce; freedom of expression
with a strengthened anti-abuse policy for new gTLDs.
ICANN amended its standard agreements with do-
main name registries and registrars to impose ad-
ditional safeguards, compliance with “all applicable
laws”, and remedies such as suspension of the do-
main name, which is a powerful tool to deny access to
online content. Surprisingly these amendments were
not discussed under ICANN’s consensus policy devel-
opment process but added at the request of govern-
ments after the launch of the New gTLDs Program.
These provisions, if actually enforced by ICANN, could
lead to content policing by private entities without
any measure to ensure due consideration of domain
name holders’ freedom of expression.
Abstract: The process introduced by the Inter-
net Corporation for Assigned Names and Numbers
(ICANN) to assess and allocate new generic top-level
domains (gTLDs) offers a vehicle for content regula-
tion at two levels. First, regarding the gTLD itself, ob-
jection procedures were set up to allow third parties
to challenge an applied-for gTLD deemed to be con-
trary to “general principles of international law for
morality and public order” or detrimental to broadly
defined communities. The real target of these objec-
tions managed by the International Chamber of Com-
merce was not the gTLD itself, but the potentially
controversial content that might be published under
it. Second, these preventive measures were coupled
A. Introduction
1
Technical control of crucial Internet resources
has well-known political, economic and social
dimensions. Numerous studies have shown that
Internet intermediaries – such as access providers,
web hosting services or search engines – face
pressure from various sources to regulate online
content.1 Intermediaries are increasingly subjected
1 See, among others: J. Balkin, ‘Old-School/New-School
Speech Regulation’ (2014) 127 Harvard Law Review pp. 2296-
2342; L. DeNardis, ‘Hidden Levers of Internet Control’ (2012)
15(5) Information, Communication and Society pp. 720-738;
to injunctions to deny access to illegal content,2 and
under certain conditions they may additionally be
held liable for content uploaded by third parties.
3
B. Frydman and I. Rorive, ‘Regulating Internet Content
through Intermediaries in Europe and the USA’ (2002) 23(1)
Zeitschrift für Rechtssoziologie, pp. 41-59.
2 See P. Savola, ‘Proportionality of Website Blocking: Internet
Connectivity Providers as Copyright Enforcers’ (2014)
5(2) JIPITEC pp.116-138; M. Husovec, ‘Injunctions against
Innocent Third Parties: The case of Website Blocking’ (2013)
4(2) JIPITEC pp. 116-129.
3 For an overview of existing models of intermediary liability,
see R. MacKinnon, E. Hickok, A. Bar and H. Lim, Fostering
2016
Caroline Bricteux
230
3
Targeting intermediaries rather than content
providers overcomes the difculty of identifying
the source and recipients of a particular piece of
content on the Web. However efcient this strategy
is to tackle illegal activities and abuse online, it has
come under considerable criticism. Proponents of
freedom of expression have repeatedly claimed that
putting intermediaries under pressure to regulate
content carries a signicant risk of over-censorship,
without transparent processes and guarantees that
the competing rights and interests at stake will be
carefully balanced by the intermediary.4
2
I will argue in this paper that domain name registries
and registrars might also serve as points of control5
for the content posted in the domain that they
administer, in particular with regard to the new
processes brought by the Internet Corporation for
Assigned Names and Numbers (ICANN) to assess and
allocate new generic top-level domains (gTLDs). Since
1998, ICANN has been in charge of the management
of the Domain Name System (DNS), which operates
the translation of user-friendly domain names
into computer-friendly IP addresses. In June 2011
its Board of Directors announced the launch of
the New gTLDs Program, a plan to implement an
unprecedented expansion of the DNS by signicantly
increasing the number of generic top-level domains
(gTLDs such as .com, .org or .net), with the aim of
fostering diversity and encouraging competition
at the top level of the Internet’s namespace.
Worryingly, the process introduced by ICANN to
assess and allocate new gTLDs offers a vehicle of
content regulation at two levels. First, regarding
the gTLD itself, objection procedures were set up
to allow third parties to challenge an applied-for
gTLD deemed to be contrary to “general principles
of international law for morality and public order”
or detrimental to broadly dened communities.
The real target of these objections managed by
the International Chamber of Commerce (ICC),
was clearly not the gTLD itself but the potentially
controversial content that might be published
under it. Second, these preventive measures were
coupled with a strengthened anti-abuse policy for
new gTLDs. ICANN amended its standard agreements
with domain name registries and registrars to
impose additional safeguards, compliance with “all
applicable laws”, and remedies such as suspension
of the domain name, which is a powerful tool to
deny access to online content. Surprisingly these
amendments were not discussed under ICANN’s
Freedom Online: the Role of Internet Intermediaries (Paris:
UNESCO/Internet Society, 2014), pp. 39 et seq.
4 See, for example, the Report of the Special Rapporteur on
the promotion and protection of the right to freedom and
expression, Frank La Rue, to the UN Human Rights Council,
A/HRC/17/27, 16 May 2011, spec. §§ 42-43.
5 J. Zittrain, ‘Internet Points of Control’ (2003) 44(2) Boston
College Law Review pp. 653-688.
consensus policy development process but added
at the request of governments after the launch of
the New gTLDs Program. These provisions, if actually
enforced by ICANN, could lead to content policing
by private entities without any measure to ensure
due consideration of domain name holders’ freedom
of expression.
3 The rest of this paper is divided into four sections.
I will start in Section B by examining the evolution
of the DNS from its inception in the 1980s through
the following three decades, in order to fathom
the ambition of the New gTLDs Program. We will
see that expanding the DNS raises more than
technical questions, as delicate policy decisions
have to be taken to set the standards and procedures
governing the creation and allocation of new gTLDs.
The following two sections will be devoted to two
mechanisms introduced by the New gTLDs Program
that ultimately produce a form of content regulation.
Section C deals with the objection procedures and
Section D deals with the new contractual obligations
of domain name registries and registrars regarding
abuse. Section E sums up the arguments and
identies potential future developments.
B. The Evolution of the
Domain Name System
4
In June 2011, ICANN’s Board of Directors gave the
green light for the New gTLD Program, which was
announced to be “one of the biggest changes ever
to the Internet’s Domain Name System”.6 The DNS
is a crucial feature for human Internet users, as it
operates the translation of alphanumeric domain
names (such as ulb.ac.be) into the corresponding
IP addresses (such as 164.15.59.215) needed for the
transmission of information across the network.
The DNS differs signicantly from the rest of
the Internet’s decentralized and distributed
architecture: it must be operated on a centralized
basis to ensure that every domain name is unique
and that a website name will always lead to the same
address, regardless of the geographical location of
the user typing the name in his web browser.7 In the
early days of the Internet, the naming and addressing
system relied on a single distributed le, which had
to be updated whenever a new computer joined the
network. This highly centralized directory rapidly
became unable to accommodate the Internet’s fast
6 ICANN, Regular Meeting of the Board, Resolution
2011.06.20.01, 20 June 2011, <www.icann.org/resources/
board-material/resolutions-2011-06-20-en>.
7 According to the Internet Society, this global reach is a
fundamental characteristic of the Internet (Internet Society,
Internet Invariants: What Really Matters, 3 February 2012,
<www.internetsociety.org/internet-invariants-what-
really-matters>).

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