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

• Author: Caroline Bricteux
• Pages: 229-245

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

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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,

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,

really-matters>).

Regulating Online Content through the Internet Architecture

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growth. Therefore, the DNS was developed in the

1980s to enable the decentralization of the naming

and addressing functions, while retaining some

degree of centralized control to ensure consistency

and uniqueness of the identiers. The key was the

hierarchical division of the namespace into different

levels of domains. This tree-shaped hierarchy is

reected in the arrangement of domain names,

from right to left and separated by dots: (1) a top-

level domain (TLD); (2) a second-level domain (SLD

or 2LD); (3) an eventual third-level domain (3LD),

and so on. To give an example, with ulb.ac.be, .be is

the TLD, .ac is the SLD and ulb is the 3LD. Two main

categories of TLDs coexist: generic top-level domains

(gTLDs) such as .com, .biz and .xxx, and two-letter

country-code top level domains (ccTLDs), such as

.be for Belgium, .de for Germany and .cn for China.

The hierarchical structure of the DNS enables the

storing of information about each level at different

name servers, which can in turn perform the domain

name resolution function, i.e. the name-to-number

translation. At the top of the hierarchy lies the root,

a single le that contains the list of the authoritative

servers for each top-level domain.

5

The hierarchical design of the DNS is reected in

its management, with powers devolving from TLDs

to sub-domains. ICANN is placed at the apex of

the hierarchy and has administered the DNS root

since 1998. Until 1998 the DNS was maintained

relatively informally by contractors of the U.S.

government, which was funding research on

packet switching technology and its applications.

As the Internet evolved into a major commercial

and communication platform in the mid-1990s,

businesses and foreign governments pressured

the U.S. authorities to increase competition and

privatize control over the DNS. After requesting

comments, the National Telecommunications and

Information Administration (NTIA), an agency

of the U.S. Department of Commerce, released a

Statement of Policy in June 1998, which called upon

the Internet community to form a private not-

for-prot corporation to manage the DNS.8 This

resulted in the formation of a new corporation under

California law, ICANN.9 ICANN is characterized by a

multi-stakeholder governance model and bottom-up

decision-making processes: its policies are initiated

and developed within supporting organizations

whose members represent both commercial and

8 U.S. Department of Commerce, NTIA, Management of

Internet Names and Addresses, Statement of policy, Federal

Register, vol. 63, nr. 111, 10 June 1998, p. 31741.

9 For a detailed account of ICANN’s inception, see M. Mueller,

Ruling the root: Internet governance and the taming of cyberspace

(Cambridge, MA: MIT Press, 2002); M. Froomkin, ‘Wrong

Turn in Cyberspace: Using ICANN to Route around the APA

and the Constitution’ (2000) 50(1) Duke Law Journal pp. 17-

184 and J. Weinberg, ‘ICANN and the Problem of Legitimacy’

(2000) 50(1) Duke Law Journal pp. 187-260.

non-commercial interests of the DNS. Final decisions

are taken by ICANN’s Board of Directors. Advisory

committees complete this complex structure to give

an opportunity to governments, among others, to

make their voices heard within ICANN.10

6

Until 30 September 2016, ICANN’s authority over the

DNS derived from a crucial contract with the U.S.

government – acting through the NTIA – regarding

the so-called IANA functions.11 The IANA contract,

which was initially signed in 2000 and renewed several

times,

12

made ICANN responsible for coordinating

the Internet unique identiers (domain names,

IP addresses, and protocol parameters). The U.S.

government retained oversight over ICANN through

this contractual relationship, notably by its ability

to impose new contractual terms during renewal

rounds.

13

The U.S. government oversight was highly

controversial, not only because the privatization

of the DNS management was incomplete, but also

because other governments did not have similar

powers and only played an advisory role within

ICANN. Following years of criticism, the U.S.

government announced in March 2014 its intention

to relinquish its remaining oversight role and to

transition that responsibility to the global multi-

stakeholder community, excluding a government-

led or an inter-governmental replacement.14 ICANN

was designated as the convener of the process to

develop a transition proposal with all stakeholders

across the global Internet community. In March 2016,

after two years of intense discussions, this process

culminated in the submission of a transition proposal

to the NTIA.15 Notably, the text proposed to transfer

10 On the role of governments within ICANN, see J. Weinberg,

‘Governments, Privatization, and “Privatization”: ICANN

and the GAC’ (2011) 18 Michigan Telecommunications and

Technology Law Review pp. 189-218.

11 IANA stands for the Internet Assigned Numbers Authority.

12 The latest version of the IANA contract was awarded in July

2012 (IANA Functions Contract, 2 July 2012,

gov/page/iana-functions-purchase-order>). This contract

was originally set to expire on the 30th of September 2015

and was extended to the 30th of September 2016 to leave

time to complete the transition process initiated in March

2014 (L. E. Strickling, An Update on the IANA Transition, 17

August 2015,

iana-transition>).

13 See K. McGillivray, ‘Give it away now? Renewal of the IANA

functions contract and its role in internet governance’

(2014) 22(1) International Journal of Law and Information

Technology pp. 3-26.

14 U.S. Department of Commerce, NTIA, NTIA Announces

Intent to Transition Key Internet Domain Name Functions,

14 March 2014,

ntia-announces-intent-transition-key-internet-domain-

name-functions>.

15 IANA Stewardship Transition Coordination Group, Proposal

to Transition the Stewardship of the IANA Functions

from the U.S. Commerce Department’s NTIA to the Global

Multistakeholder Community, 10 March 2016,

www.icann.org/en/system/les/les/iana-stewardship-

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Caroline Bricteux

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the performance of the IANA functions to a new,

separate legal entity, which would be formed as an

afliate of ICANN. This new entity would become the

IANA functions operator, while ICANN would assume

the role played until then by the NTIA. In addition,

ICANN’s actions would be subject to strengthened

accountability mechanisms. The transition had

indeed prompted a parallel discussion on ICANN’s

accountability, as the U.S. government oversight

was seen as a tool to keep ICANN accountable to its

stakeholders.

16

The NTIA accepted the proposal in

August 2016

17

and the IANA contract was allowed

to expire in October 2016.18 Since then, the IANA

functions have been performed by a new afliate of

ICANN, called Public Technical Identiers.19

7

As part of its DNS managing duties, ICANN contracts

with registries20 and accredits registrars with whom

the registries deal. These constitute the lower

levels of the DNS administrative hierarchy. Domain

name registries are in charge of maintaining and

coordinating the database of all the SLD registered

within a TLD. There can be only one registry per TLD

to ensure coherence and consistency of the database.

Registrars offer domain name registration services

to the general public (registrants) and collects

clients’ information and payment in order to make

a unique SLD entry into the registry.

8 The addition of new gTLDs to the global namespace

had been on the forefront of ICANN’s agenda since

1998. Back then only seven gTLDs created in the

1980s were available: .com, .edu, .gov, .int, .mil, .net and

.org. Adding new gTLDs became crucial in the 1990s

to improve competition in the registration market.

Since 1993 the management of the domain name

registration services (both registry and registrar

functions) for .com, .net and .org had been performed

by a sole company – Network Solutions Inc. (NSI) –

under a cooperative agreement with the National

Science Foundation (NSF).

21

At that time, registration

transition-proposal-10mar16-en.pdf>.

16 Cross Community Working Group on Accountability,

Supplemental Final Proposal on Work Stream 1

Recommendations, 23 February 2016,

org/en/system/les/les/ccwg-accountability-supp-

proposal-work-stream-1-recs-23feb16-en.pdf>.

17 U.S. Department of Commerce, NTIA, Update on the IANA

Transition, 16 August 2016,

blog/2016/update-iana-transition>.

18 U.S. Department of Commerce, NTIA, Statement of Assistant

Secretary Strickling on IANA Functions Contract, 1 October

2016,

statement-assistant-secretary-strickling-iana-functions-

contract>.

19 ICANN, ICANN Announces Incorporation of Public Technical

Identiers (PTI), 11 August 2016,

news/announcement-2-2016-08-11-en>.

20 For historical reasons ICANN does not have a contract with

all the ccTLD registries.

21 Cooperative Agreement Between NSI and U.S. Government,

of a SLD was subsidized by the NSF and free of charge

for the end user. This practice changed with the

transformation of the Internet into a commercial

platform in the mid-1990s. Demand for domain names

was rocketing and costs to support them became

unsustainable given the NSF’s budget constraints.22

Therefore, in 1995 NSF amended the cooperative

agreement with NSI to allow the company to charge

an annual fee of $50 per domain name registered.23

This was the start of a very lucrative business for

NSI, with hundreds of millions dollars at stake in the

.com domain. Inevitably, this government-blessed

monopoly generated a high level of controversy and

was one of the driving forces behind the reform of

the DNS management and the creation of ICANN. The

U.S. government favored two ways to open up the

domain name market to competition.

24

First, registry

and registrar functions were separated: NSI had to

agree to design a shared registry system that would

allow competing registrars to market domain name

registrations in .com, .net and .org, while retaining

its monopoly on the registry function.25 Second, the

addition of new gTLDs was encouraged to provide an

alternative to .com and let new registries enter the

registration market.

9

Before the New gTLDs Program, ICANN launched two

rounds of domain name expansion for gTLDs, which

resulted in the delegation of fteen new gTLDs

between 2001 and 2011. The rst expansion round

took place in 2000 and was designed to evaluate

the policy and practical issues associated with the

addition of new gTLDs. Rather than choosing new

gTLDs and assigning them to new operators, ICANN

decided to call for proposals from prospective

registries. 47 applications were received and the

ICANN Board selected seven new gTLDs (.aero, .biz,

.coop, .info, .museum, .name, .pro).26 Interestingly, the

Board refused to choose any of the proposals for a

.kids gTLD, fearing that approving such a domain

would bring it uncomfortably close to the business

of content regulation.

27

One applicant, ICM Registry,

1 January 1993,

coopagmt-01jan93.htm>.

22 J.B. Beyster and M.A. Daniels, Names, Numbers, and Network

Solutions. The Monetization of the Internet (La Jolla: The

Foundation for Enterprise Development, 2013), p. 73.

23 Amendment 4 to Cooperative Agreement between NSI and

U.S. Government, 13 September 1995,

icann.org/en/nsi/coopagmt-amend4-13sep95.htm>).

24 U.S. Department of Commerce, NTIA, Management of

Internet Names and Addresses, Statement of policy, Federal

Register, vol. 63, nr. 111, 10 June 1998, pp. 31745-31746.

25 Amendement 11 to the DOC/NSI Cooperative Agreement, 6

October 1998,

domainname/agreements/Amend11_052206.pdf>.

26 ICANN, Second Annual Meeting of the ICANN Board, 16

November 2000,

material/minutes-annual-meeting-2000-11-16-en>.

27 ICANN, Report on New TLD Applications, III.B.1.c

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was even applying for both .kids and .xxx, arguing

that, together, these new gTLDs would enhance

online child safety by clearly delineating child-

friendly and adult-only content areas.

28

According

to M. Mueller, ICANN did not want to take the

responsibility for certifying the appropriateness

of the material posted in a .kids domain.29 The

.xxx application was also rejected,30 but it was

resubmitted during the second round of new gTLD

applications launched in 2003. This second round

called for proposals for sponsored new gTLDs31, i.e.

specialized gTLDs that serve the needs of a dened

community not otherwise adequately represented

in the DNS.32 Ten proposals were received and the

ICANN Board ultimately selected .asia, .cat, .jobs, .mobi,

.post, .tel, .travel and .xxx as new sponsored gTLDs.33

10

The two rounds of expansion elicited criticism for

being “painfully slow, unpredictable and entirely

discretionary”34 and “anything but well-organized”.35

M. Mueller and L. McKnight denounced the lack

of uniform selection criteria and the absence of a

regular timetable for accepting and deciding upon

the applications.

36

ICANN itself acknowledged that

similar proposals could be treated differently.37

(“Restricted Content Group”), 9 November 2000,

archive.icann.org/en/tlds/report/report-iiib1c-09nov00.

htm>.

28 ICANN, Registry Operator’s Proposal – Volume 2, 18

September 2000,

HTML/Volume_2.html>. See as well Berkman Center for

Internet and Society, « Accountability and Transparency at

ICANN: An Independent Review », 20 October 2010,

www.icann.org/en/reviews/afrmation/atrt-review-

berkman-nal-report-20oct10-en.pdf>, pp. 94-96.

29 M. Mueller (2002), supra note 9, p. 204.

30 ICANN, Report on New TLD Applications, III.B.1.c

(“Restricted Content Group”), supra note 27.

31 ICANN, Regular Meeting of the Board, 31 October 2003,

.

32 Sponsored gTLDs have a sponsor representing the particular

community to carry out a “delegated policy-formulation

role” over a variety of matters regarding the TLD. See

ICANN, Request for Proposals for new sponsored Top Level

Domains (sTLDs), 15 December 2003,

org/en/tlds/new-stld-rfp/new-stld-application-parta-

15dec03.htm>.

33 ICANN, Status Report on the sTLD Evaluation Process, 19

March 2004 (updated on 3 December 2005),

icann.org/en/tlds/stld-apps-19mar04/stld-status-report.

pdf>. The archive related to the sponsored gTLDs round

can be consulted at

apps-19mar04>.

34 M. Mueller and L.W. McKnight, ‘The post-.COM internet:

toward regular and objective procedures for internet

governance’ (2004) 28 Telecommunications Policy, p. 495.

35 J. Weinberg, ‘ICANN, “Internet Stability”, and New Top-

Level Domains’ in Cranor, L. and Greenstein, S. (eds.)

Communications Policy and Information Technology: Promises,

Problems, Prospects (Cambridge, MA: MIT Press, 2002), p. 17.

36 M. Mueller and L.W. McKnight (2004), supra note 34, p. 495.

37 J. Weinberg (2002), supra note 35, pp. 19-20.

Moreover, during the second round of DNS

expansion, the .xxx proposed by ICM Registry

for “the responsible online adult-entertainment

community”

38

caused a major controversy within

ICANN.39 This application received preliminary Board

approval in June 2005 to begin negotiating the terms

of the registry agreement, which would only be

formally approved in March 2011. In the meantime,

ICANN had experienced pressures from a variety

of constituencies against the application. Several

members of the Governmental Advisory Committee

(GAC) condemned an apparent legitimation of online

pornography. There were also concerns regarding the

actual community support for .xxx after complaints

from members of the adult entertainment industry

fearing that such a TLD would facilitate ltering and

censorship. As a result of these pressures, the Board

ended up withdrawing its approval in March 2007.40

This was an unprecedented victory for the GAC,

which encouraged its members to weigh in to exert

more inuence in the ICANN arena.

41

This success

was short-lived however. ICM Registry challenged

the Board’s reversal through ICANN’s Independent

Review Process.42 In 2010 the review panel found that

ICANN’s volte-face on the .xxx application “was not

consistent with the application of neutral, objective

and fair documented policy” and therefore violated

its bylaws.43 Although the opinion was not binding,

the Board decided to re-open negotiations with ICM

Registry and nally approved the new .xxx TLD in

March 2011.44

11

The handling of the .xxx application was concomitant

with heated discussions within ICANN about a New

gTLDs Program that would offer a much more

ambitious expansion of the DNS. The long policy

38 ICANN, New sTLD RFP Application, .xxx, Part B. Application

Form,

19mar04/xxx.htm>.

39 For a detailed account of the .xxx case, see Appendix D of

Berkman Center for Internet and Society, ‘Accountability

and Transparency at ICANN: An Independent Review’, supra

note 28, pp. 90-124.

40 ICANN, Board Meeting at ICANN Meeting 28, Resolution

07.18, 26-30 March 2007,

resources/board-material/resolutions-2007-03-30-en>.

41 J. Weinberg (2011), supra note 10, p. 203.

42 The Independent Review Process is an accountability

mechanism set out in ICANN Bylaws that provides for

an independent third-party review of Board actions (or

inactions) alleged by an affected party to be inconsistent

with ICANN’s Articles of Incorporation or Bylaws (ICANN,

Bylaws, Article IV, Section 3).

43 International Centre for Dispute Resolution , ICM Registry v.

ICANN, case no. 50 117 T 00224 08, 19 February 2010,

www.icann.org/en/system/les/les/-panel-declaration-

19feb10-en.pdf>, §§ 149-152.

44 ICANN, Regular Meeting of the Board, Resolutions

2011.03.18.23-2011.03.18.25, 18 March 2011,

icann.org/resources/board-material/resolutions-2011-03-

18-en>.

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Caroline Bricteux

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development process45 ultimately favored a new

approach: instead of arbitrarily pick a few new gTLDs

out of a large pool of applications, ICANN decided

to establish transparent and predictable selection

criteria in an Applicant Guidebook (AGB)46 that

would be fully available to the applicants prior to the

initiation of the process.47 Any word (in any language

or script) could be proposed and all applications

that would meet the conditions would be granted

without restricting the number of new gTLDs. Since

the launch of the Program in 2012, the growth of the

DNS has already been quite substantial. As of October

2016 and out of the 1,930 admissible proposals

received by ICANN, over 1,100 new gTLDs have been

delegated into the DNS.48 These new gTLDs are very

diverse: they represent trademarks and company

names (such as .google, .chanel or .bmw), professions

and economic sectors (such as .lawyer, .pharmacy or

.bank), geographical areas (such as .amsterdam, .tirol

or .vlaanderen), religious terms (such as .bible or

.church) or generic terms (such .global, .cool or .fail).49

This unleashing of global human imagination did not

come without restrictions: next to strict nancial50

and operational criteria, processes were put in place

to ensure the consideration of rights, interests and

values beyond a mere technical evaluation of the

applications.

12 The .xxx affair constituted an important precedent

for ICANN when discussing the liberalization of the

generic top-level domain market; it showed that

the addition of new gTLDs is, above all, a complex

political question. Prior to the launch of the New

gTLDs Program, ICANN had to decide which strings

of characters would and would not be acceptable

TLDs, but also consider who should manage sensitive

identiers and how to reject undesirable new TLDs.

The designers of the DNS wanted to avoid being

pulled in such delicate debates by denying any

meaning to domain names. According to them,

the functions of the DNS were very narrow: it

was simply a convention for naming computers

45 For a detailed account of ICANN’s New gTLDs Policy

Development Process see chapter 4 of P. White, Protocols

of Power: Lessons from ICANN For International Regime Theory

(2012) Doctoral thesis, University of Hudderseld, available

from: .

46 ICANN, New gTLD Applicant Guidebook, Version 2012-06-

04, .

47 For a comprehensive overview of the application process for

new gTLDs, see T. Bettinger and M. Rodenbaugh, ‘ICANN’s

New gTLD Program’ in Bettinger, T. and Waddel, A. (eds.)

Domain Name Law and Practice: An International Handbook

(Oxford, Oxford University Press, 2015), pp. 65-123.

48 The statistics of the New gTLDs Program can be consulted at:

.

49 For a complete and up-to-date list of delegated strings, see

strings>.

50 Each applicant had to pay a fee of USD 185,000 in order to

have its application considered.

attached to the Internet, not a form of directory

assistance.

51

Yet domain names changed function

with the introduction of the World Wide Web,

which integrated them in web addresses or Uniform

Resources Locators (URLs) such as www.ulb.ac.be. As

the term resource locator suggests, URLs were not

just mere addresses but locators for content posted

on the web.52 Domain names became signboards –

identiers for the content posted on the website

they were directing to. Consequently, people got

the natural tendency to attribute social meanings

to the TLDs,53 as is powerfully illustrated in the .xxx

case. Drawing lessons from that controversial affair,

ICANN decided to relieve its Board of the assessment

of the social meaning of the strings proposed

as gTLDs. Instead, objection procedures were

established in the AGB to let independent experts

take decisions about TLDs that anyone may nd

offensive, polarizing, or controversial

54

. I examine

these procedures in the following section and argue

that they served as a preventive mechanism of

content control.

C. Objection Procedures: Ex

Ante Control of Content

13 A formal objection procedure was developed in the

New gTLDs Program to ensure the consideration of

rights, interests and values falling outside the scope

of ICANN’s assessment of applications.

55

Objectors

could le their objection on four enumerated

grounds (string confusion, legal rights, limited

public interest and community) to an independent

dispute resolution service provider (hereinafter,

DRSP), which then appointed panels of expert(s) to

issue determinations.

56

Two types of review could be

performed by the panels, depending on the grounds

of objection: in the case of string confusion or legal

rights objections, only the applied-for string was

examined to determine whether it was confusingly

similar to an existing TLD or to another applied-for

gTLD string, or whether it would be likely to infringe

the objector’s trademark. These grounds of objection

51 M. Mueller (2002), supra note 9, pp. 78-81.

52 Id., p. 108.

53 D. Lindsay, International Domain Name Law. ICANN and the

UDRP (Oxford/Portland: Hart Publishing, 2007), p. 10.

54 M. Mueller, Networks and States: The Global Politics of Internet

Governance (Cambridge, MA: MIT Press, 2010), pp. 201-204.

55 The rules and standards applicable to the objection

procedures are set forth in Module 3 of the Applicant

Guidebook and in the ‘New gTLD Dispute Resolution

Procedure’ attached thereto.

56 For a comprehensive overview of the objection procedures’

rules and outcomes, see T. Bettinger, ‘Rights Protection

Against Applications for New gTLDs (Pre-Delegation

Dispute Resolution)’ in Bettinger, T. and Waddel, A. (2015),

supra note 47, pp. 1077-1163.

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3

do not raise particular concern regarding content

control. The same cannot be said about the two

other grounds of objection, which I will examine

more closely below. Not only the applied-for gTLD,

but as also the proposed registry management

and commitments made by the applicant, played

an important role in the determination on the

grounds of limited public interest and community.

The experts had to determine whether the

application would be contrary to general principles

of international law for morality and public order,

or would cause detriment to a broadly dened

community. The International Center of Expertise

of the International Chamber of Commerce (ICC) was

designated as a DRSP for the objections led on the

grounds of limited public interest and community.

Another distinguishing feature of these two grounds

of objection can be found in the role played by a

new character in ICANN’s complex ecosystem: the

independent objector.

57

Acting “solely in the best

interests of the public who use the global Internet”,

58

the independent objector was designated to le

objections against “highly objectionable terms”59

on the grounds of limited public interest and

community. The independent objector was acting

independently from ICANN, as neither its staff nor

its Board had authority to direct or require the

independent objector to le or not le any particular

objection.

14 In principle, the Board of ICANN was not supposed

to directly deal with conicts arising from third

parties’ allegations such as in the .xxx case. However,

there is room for interpretation regarding the

binding nature of expert determinations. No

specic appeal process was mentioned to challenge

expert determinations; neither did the DRSPs adopt

procedures to review the work of the appointed

panels, nor to provide a unied interpretation of

the dispute resolution standards. The Guidebook

tersely provides that the expert determination

will be considered as an “advice that ICANN will

accept within the dispute resolution process”.

60

In

the independent objector’s view, this wording is

unfortunate as it seems to imply that ICANN reserves

its right not to follow expert determinations, which

could pave the way for allegations of arbitrary

decisions.

61

This interpretation is conrmed when

looking at Module 5 of the Guidebook (Transition to

Delegation), which provides that ICANN’s Board of

57 ICANN announced in May 2012 that Alain Pellet, a French

professor of public international law, would serve as the

independent objector.

58 AGB, § 3.2.5.

59 AGB, § 3.2.5.

60 AGB, § 3.4.6.

61 Independent Objector, Final Activity Report, 29 July 2014,

nal-activity-report>, p. 31.

Directors has “ultimate responsibility for the New

gTLD Program” and that it reserves its “right to

individually consider an application for a new gTLD

to determine whether approval would be in the best

interest of the Internet community”. It adds that

“under exceptional circumstances, the Board may

individually consider a gTLD application”.

62

Upon

that argument, the Board decided, in specic cases,

either to direct a re-evaluation of the objection

proceedings by a new panel (the .hospital case), or

to overturn a determination (the .amazon case).

15

The rest of this section is divided in three parts: I

will start by examining the results of the objection

procedure on the grounds of limited public interest

(I) and community (II). Then I will consider ICANN’s

role regarding the production and implementation

of a global standard for freedom of expression online

(III).

I. Limited Public Interest

16 The expert panel hearing a Limited Public Interest

objection had to determine whether the applied-

for gTLD string was contrary to “general principles

of international law for morality and public

order”.63 The AGB provided for an illustrative,

non-exhaustive list of international instruments

where such general principles of international law

for morality and public order could allegedly be

found.64 It added that, a contrario, national laws not

based on principles of international law were not

valid grounds for a Limited Public Interest objection.

According to ICANN, under these principles,

everyone has the right to freedom of expression,

but the exercise of this right carries with it special

duties and responsibilities. The Guidebook provided

four grounds upon which applicants’ freedom of

expression could be restricted. These standards

were developed by ICANN’s staff after conducting

both a comparative study in nine jurisdictions65 and

62 AGB, § 5.1.

63 AGB, § 3.5.3.

64 The AGB mentions the following international instruments:

the Universal Declaration of Human Rights (UDHR);

the International Covenant on Civil and Political Rights

(ICCPR); the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW); the International

Convention on the Elimination of All Forms of Racial

Discrimination; Declaration on the Elimination of Violence

against Women, the International Covenant on Economic,

Social, and Cultural Rights; the Convention against Torture

and Other Cruel, Inhuman, or Degrading Treatment or

Punishment; the International Convention on the Protection

of the Rights of all Migrant Workers and Members of their

Families; the Slavery Convention; the Convention on the

Prevention and Punishment of the Crime of Genocide and

the Convention on the Rights of the Child.

65 The study included the following countries: Brazil,

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consultations with international law specialists.

This research work concluded that considering the

variety of potential gTLD strings that might be at

issue in dispute proceedings, “panels should have

discretion to apply general principles to individual

cases”.66 At the same time, ICANN’s staff identied

public policy rules considered to be “widely if not

universally, accepted as grounds for limiting freedom

of expression”,67 to guide the experts in the exercise

of their discretion. These rules constituted the rst

three grounds of restriction, incorporated in the AGB

as follows: incitement to or promotion of (1) “violent

lawless action”; (2) “discrimination based upon

race, colour, gender, ethnicity, religion or national

origin, or other similar types of discrimination that

violate generally accepted legal norms recognized

under principles of international law”; and (3) “child

pornography or other sexual abuse of children”. The

fourth ground expressed the discretion granted

to the expert panels, as it enabled them to assess

the conformity of applied-for gTLDs with “specic

principles of international law as reected in relevant

international instruments of law”. In practice, all the

Limited Public Interest objections were based upon

this broad fourth ground.

17

Anyone could le a Limited Public Interest objection,

as the AGB did not impose standing requirements.

Limited Public Interest was however the least used

ground of the objections procedure: only twenty-

three objections were led against health-related

strings (.health, .healthcare, .med, .medical, .hospital)

and strings linked to the nancial sector (.broker, .ira,

.mutualfunds, .retirement). Few private parties used this

opportunity and most of the Limited Public Interest

objections were led by the independent objector.

Most of the Limited Public Interest objections were

either dismissed by the expert panels or withdrawn

before the nal determination. Only one objection

was upheld – in the .hospital case – with a dissenting

opinion.68 However, this similarity in outcome should

not conceal that expert panels had very divergent

opinions on their scope of examination and the

subsequent substantive assessment of the cases,

especially regarding objections brought against

health-related strings.

Egypt, France, Hong Kong, Japan, Malaysia, South Africa,

Switzerland and the U.S.

66 ICANN, New gTLD Program Explanatory Memorandum:

Standards for Morality and Public Order Research, 30

May 2009,

morality-public-order-30may09-en.pdf>.

67 ICANN, New gTLD Program Explanatory Memorandum:

Morality and Public Order Objection Considerations in

New gTLDs, 29 October 2008, < http://www.icann.org/en/

topics/new-gtlds/morality-public-order-draft-29oct08-en.

pdf >, p. 4.

68 All the expert determinations rendered on objections led

against new gTLD applications are fully available from:

determination>.

18

The independent objector led several objections

against gTLDs related to the health sector, alleging

that these strings, viewed in context with the

intended purpose stated in the application, would be

contrary to the right to health enshrined in Article

25 of the Universal Declaration of Human Rights and

in other instruments of international law such as

the International Covenant on Economic, Social and

Cultural Rights. In the independent objector’s view,

“any good-faith-interpretation of the meaning of

the right to receive or have access to health-related

information will conclude that this right implies

to receive or have access to reliable and trustworthy

information”.69 Therefore, the independent objector

argued that any applicant for a health-related gTLD

should demonstrate that it would effectively and

continuously manage the gTLD in such a way that the

right to health with all of its implications – including

the necessity of reliability and trustworthiness

– is fully respected. The independent objector

reviewed the health-related applications against

this general background and found that none of the

applicants met the standards outlined above. One

of the independent objector’s recurring concerns

was that applicants would apply the same operating

rules and protection measures for all the gTLDs that

they requested, without showing awareness of the

specicities of a health-related TLD.

19

The initial question for the experts appointed by the

International Centre of Expertise of the ICC was to set

their scope of examination and therefore determine

whether they should restrict their analysis to the

applied-for gTLD or take other elements into account.

The answer to this question was not obvious. The

Applicant Guidebook states that “the panel will

conduct its analysis on the basis of the applied-for

gTLD string itself” and that “the panel may, if needed,

use as additional context the intended purpose of the

TLD as stated in the application”.70 Experts drew

different conclusions from this wording. Most panels

followed a broad interpretation of this provision,

which was also favored by the independent

objector. In the .healthcare case for example, the

panel found that it should “look at how the TLD

will be operated as proposed in the application”

71

and emphasized that the issue at stake was the

propriety and the regulation of the proposed gTLD.72

Some experts adopted a stricter interpretation

of the AGB standard and, therefore, signicantly

limited their scope of examination. In the .medical

69 All of the independent objector’s objections are available

from:

home/the-independent-objector-s-objections>.

70 AGB, § 3.5.3 (emphasis added).

71 ICC, International Centre for Expertise, Independent Objector

vs. Silver Glen LLC, 26 November 2013, EXP/411/ICANN/28

(.healthcare), § 25.

72 Id., § 35 (emphasis added).

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case, the panel considered that the starting point

had to be “whether the string .medical is contrary to

general principles of international law for morality

and public order, not whether the internet content

potentially available under that string conforms to such

principles”.73 In other words, the subject matter for

the determination of the Panel was “the applied-for

gTLD string .medical itself, not the way Applicant intends

to manage that string”.74 A similar strict interpretation

of the AGB standard was adopted by the panel in

two consolidated .health cases. The panel found

that the primary conjecture of the independent

objector – i.e. that a .health registry as operated by

the applicant would not be adequately safeguarded

or protective enough of human rights to health –

changed “nothing to the fact that the word “health”

is by no means inherently objectionable”.75

20

This divergence of opinions was mirrored in the

substantive assessment of the objections by the

expert panels, which all acknowledged that the

right to health is a fundamental right and a specic

principle of international law. The expert panels

favoring a strict interpretation of their scope of

examination quickly dismissed the objections.76

In the other cases, the panels either examined

the independent objector’s arguments within the

context of the applicants’ registration policies

and commitments to protect the public interest

(such as eligibility requirements or anti-abuse

remedies),77 or they chose to balance the claims

related to the right to health with the right to

freedom of expression. These latter cases triggered

another disagreement among experts. In the .med

cases, the panel considered that a restriction of free

expression cannot be justied solely on the basis

of its purported positive consequences on the right

to health. Following such a path would, in the view

of the panel, result “in endless expansions in the

permissible limitations of freedom of expression

by reference to consequentialist arguments about

the impact that a particular restriction could have

73 ICC, International Centre for Expertise, Independent Objector

vs. Steel Hill LLC, 2 January 2014, EXP/413/ICANN/30

(.medical), § 49 (emphasis added).

74 Id. (emphasis added).

75 ICC, International Centre for Expertise, Independent Objector

vs. DotHealth LLC, 16 December 2013, EXP/416/ICANN/33

(.health), § 89; Independent Objector vs. Goose Fest LLC, 16

December 2013, EXP/417/ICANN/34 (.health), § 92.

76 ICC, International Centre for Expertise, Independent

Objector vs. DotHealth LLC, 16 December 2013, EXP/416/

ICANN/33 (.health), § 103; Independent Objector vs. Goose

Fest LLC, 16 December 2013, EXP/417/ICANN/34 (.health),

§ 106; Independent Objector vs. Steel Hill LLC, 2 January 2014,

EXP/413/ICANN/30 (.medical), § 50.

77 ICC, International Centre for Expertise, Independent Objector

vs. Aflias Limited, 6 November 2013, EXP/409/ICANN/26

(.health), §§ 66-77; Independent Objector vs. Silver Glen LLC, 26

November 2013, EXP/411/ICANN/28 (.healthcare), §§ 47-55.

on the enjoyment of other rights”.78 According

to the panel, the information-related element of

the right to health is the right to have access to

information that is reliable and trustworthy but

does not include the right to be protected from the

mere risk of misleading or unreliable information.79

As the independent objector failed to prove a

signicant risk of dissemination of misleading or

unreliable information, while the applicant provided

“various assurances, most notably in relation to the

administration of the gTLD”,80 the panel dismissed the

objections.

21

The expert determination issued in the .hospital case

adopted a completely different approach regarding

the kind of balance to strike between the right to

health and freedom of expression. The majority

of the panel stated that freedom of expression is

connected with special duties and responsibilities

and that, in the .hospital case, “those duties include

an application of very specic protection and an

awareness of the importance of the role of hospitals

in delivering credible healthcare objectives”.81 The

majority found that the applicant “failed to avert its

mind to these responsibilities” and as a consequence,

the application breached the right to health and fell

outside of the scope of freedom of expression.82 The

majority elaborated further that the case was an

example of “a hard case which requires not only the

simple application of legal rules, but also balancing

different values and rules”.83 In that case, freedom

of expression and the development of services in the

Internet had to be balanced with the right to health

and even right to life.84 According to the majority of

the expert panel, there was “no doubt that human

health and its safety tips the scale in nding the

Objection to be justied”.85 However, one of the

panelists presented a dissenting opinion, stating

that he was unable to concur with the majority in

78 ICC, International Centre for Expertise, Independent Objector

vs. HEXAP SAS, 19 December 2013, EXP/410/ICANN/27 (.med),

§ 112; Independent Objector vs. Medistry LLC, 19 December

2013, EXP/414/ICANN/31 (.med), § 108; Independent Objector

vs. Charleston Road Registry Inc., 19 December 2013, EXP/415/

ICANN/32 (.med), § 103.

79 Id., EXP/410/ICANN/27 (.med), § 113; EXP/414/ICANN/31

(.med), § 109; EXP/415/ICANN/32 (.med), § 104.

80 Id., EXP/410/ICANN/27 (.med), § 120; EXP/414/ICANN/31

(.med), § 116; EXP/415/ICANN/32 (.med), § 111 (emphasis

added).

81 ICC, International Centre for Expertise, Independent Objector

vs. Ruby Pike LLC, 11 December 2013, EXP/412/ICANN/29

(.hospital), Determination of the majority, § 88.

82 Id., §§ 87-88.

83 The panel referred to R. Dworkin, Taking rights seriously

(1977).

84 ICC, International Centre for Expertise, Independent Objector

vs. Ruby Pike LLC, 11 December 2013, EXP/412/ICANN/29

(.hospital), Determination of the majority, § 89.

85 Id.

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3

upholding the objection. In his view, it was “not the

task of an expert panel to rewrite the application

standards for gTLD strings and to supplement them

with higher standards in the public interest”.

86

Even

if he was sympathetic to the majority’s concern

about the lack of a specic guarantee to ensure

reliability and trustworthiness of the information

under the .hospital gTLD, he could not “tell from

the current ICANN registration prerequisites that

such an implied substantive, content-wise check is a

precondition for a gTLD string registration”.87

22

The .hospital expert determination rendered in

December 2013 clearly stands out from the other

eight Limited Public Interest expert determinations

on health-related gTLDs. The losing applicant, Ruby

Pike LLC – a subsidiary of Donuts Inc., which applied

for 307 new gTLDs under various aliases – immediately

argued that the panel failed to apply the standards

dened by the Guidebook and exceeded its powers.

In the absence of a specic appeal mechanism, Ruby

Pike LLC resorted to two of ICANN’s accountability

mechanisms to challenge the determination. First,

Ruby Pike LLC submitted a request of reconsideration

to the ICANN Board Governance Committee (BGC).88

Several losing parties turned to the BGC for review

of an expert determination – most of the time

without success – as the BGC constantly refused to

perform a substantive review of the determinations.

The BGC’s review was limited to whether the panel

(or ICANN staff in accepting the determination)

violated any established ICANN policy or process.89

The BGC denied Ruby Pike LLC’s request in February

2014, determining that there was no evidence that

the panel deviated from the standards set forth in

the Guidebook.90 Second, Ruby Pike LLC initiated

a Cooperative Engagement Process91 regarding

the determination. As part of this process, the

ICANN Board evaluated Ruby Pike LLC’s claims and

decided in February 2016 to direct a re-evaluation

86 ICC, International Centre for Expertise, Independent Objector

vs. Ruby Pike LLC, 11 December 2013, EXP/412/ICANN/29

(.hospital), Dissenting opinion, § 17.

87 Id., § 29.

88 The reconsideration process enables any person or entity

materially affected by an action (or inaction) of ICANN to

request review or reconsideration of that action by the BGC

(ICANN, Bylaws, Article IV, Section 2).

89 ICANN, BGC, Recommendation on Reconsideration

request 13-5, 1 August 2013,

en/groups/board/governance/reconsideration/13-5/

recommendation-booking-01aug13-en.pdf>.

90 ICANN, BGC, Determination on Reconsideration request 13-

23, 5 February 2014,

les/les/determination-ruby-pike-05feb14-en.pdf>.

91 The Cooperative Engagement Process is a process

voluntarily invoked by a complainant prior to the ling

of an Independent Review Process (see supra note 42) for

the purpose of resolving or narrowing the issues that are

contemplated to be brought to the Independent Review

Process (ICANN, Bylaws, Article IV, Section 3, §§ 14-17).

of the objection proceedings by a new expert panel

appointed by the ICC.

92

The Board found that the

determination was seemingly inconsistent with the

expert determinations resulting from all the other

health-related Limited Public Interest objections,

thereby rendering it potentially unreasonable. The

Board took into consideration, inter alia, that the

.hospital case was one of the four virtually identical

Limited Public Interest objections brought against

subsidiaries of Donuts, Inc. and that the .hospital

determination was the only one in favor of the

objector. The new expert panel was instructed by

the Board to determine whether the original expert

panel could have reasonably come to the decision

reached in the rst expert determination through

an appropriate application of the standard of review

as set forth in the Guidebook, considering the other

eight Limited Public Interest expert determinations

on health-related gTLDs.93

23

The nal expert determination on the objection led

against .hospital was rendered in August 2016 and

resulted in the reversal of the original determination.

The new expert panel favored a strict interpretation

of its scope of examination and found the rst

expert determination to be unreasonable because it

placed too much emphasis on the intended purpose

of the applied-for gTLD94 and because it restricted

the applicant’s freedom of expression in favor of

a concern – the access to accurate information

concerning health-related issues – which is not a

specic principle of international law.95 In the new

panel’s view, whether Ruby Pike LLC can adequately

manage the use of .hospital through the use of

safeguards or other measures is a policy matter

for ICANN to address at a different stage of the

application process.96

92 The ICANN Board provided for a similar review mechanism

to address a perceived inconsistency in two sets of

expert determinations rendered on the ground of string

confusion (ICANN, Meeting of the Board New gTLD Program

Committee, Resolutions 2014.10.12.NG02 – 2014.10.12.NG03,

12 October 2014,

material/resolutions-new-gtld-2014-10-12-en>).

93 ICANN, Regular Meeting of the Board, Resolutions

2016.02.03.12- 2016.02.03.13, 3 February 2016,

icann.org/resources/board-material/resolutions-2016-02-

03-en>.

94 ICC, International Centre for ADR, Internet Corporation

for Assigned Names and Numbers in relation to the matter

EXP/412/ICANN/29 between Independent Objector vs. Ruby

Pike LLC, 31 August 2016, §§ 64-69.

95 Id., §§ 70-76.

96 Id., §§ 77-79.

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3

II. Community Objections

24 Community objections were intended for the cases

of substantial opposition to a gTLD application from

a signicant portion of the community to which the

gTLD string may be explicitly or implicitly targeted.

97

Strict standing requirements were imposed on the

objectors: next to the independent objector, only

“established institutions associated with clearly

delineated communities” were eligible to le

a community objection.98 As to the substantive

assessment of the cases, the AGB set out four

conditions, which had to be met cumulatively for

a community objection to prevail. The objector

had to prove (1) that the community invoked was a

clearly delineated community; (2) that community

opposition to the application was substantial; (3)

that there was a strong association between the

community invoked and the applied-for gTLD

string; and nally (4) that the application created

a likelihood of material detriment to the rights or

legitimate interests of a signicant portion of the

affected community. For each ground, the Guidebook

provided an illustrative list of factors that could be

taken into account by the panel while examining the

objection. A balancing of the factors, as well as any

other relevant information, had to be weighed by the

panel in order to draw its conclusions.

25

In contrast to limited public interest, community

was the most used ground of objection: 104

objections were led resulting in seventy-three

expert determinations.99 Out of the 48 cases that

passed the standing test, 15 objections were upheld

and 33 were dismissed, mainly because the panel did

not nd a likelihood of material detriment.

26

Just like most objections on the ground of limited

public interest, the proposed registration policy

was paramount to the assessment of community

objections. Panels paid attention to the presence of

three types of safeguards: eligibility requirements, ex

post anti-abuse policies, and commitments to involve

the targeted community in the management of the

gTLD. First, most of the panels reviewing applications

for strings related to regulated sectors considered

that eligibility requirements were necessary to

preserve consumer trust and the reputation of the

community. For example, in the .architect case, the

panel found that it would be incompatible with the

public interests linked to the work of architects

(primarily public safety) and with the consumers’

legitimate expectations to allow the domain name

97 AGB, § 3.2.1.

98 AGB, § 3.2.2.4.

99 All the expert determinations rendered on objections led

against new gTLD applications are fully available from:

determination>.

.architect to be used by anyone other than a licensed

architect. The panel stated explicitly that free speech

was not an unlimited right and could be subject to

limitations in the public interest.100 Most objections

regarding gTLDs targeted to regulated sectors (such

as .medical101 and .insurance102) were likewise upheld

if the applicant did not plan to restrict registration

to members of the targeted sector.

27 Second, ex post anti-abuse measures were generally

featured in the challenged applications and those

measures were well received by the expert panels.

For example, the anti-abuse policy proposed by the

applicant for .islam and .halal was an important basis

in the panel’s nding that there was no likelihood

of detriment to the Muslim community.

103

The panel

welcomed the applicant’s commitment to operate

the gTLDs in a manner that would prevent “radical

content or criticism of Islam and the Muslim faith”

and to “take immediate and severe action against

this should it occur”.

104

Not only did the applicant

propose to implement strict eligibility requirements,

but it would also subject all second-level domains to

a policy of use and impose penalties and suspensions

upon those who violated the user’s policy.105

28 Third, involvement of the community was another

important element in the experts’ evaluation of the

applications. The expert panels were not unanimous

on that question: in cases regarding TLDs targeting

regulated sectors106 and sports,107 lack of community

100 ICC, International Centre for Expertise, The International

Union of Architects vs. Spring Frostbite LLC, 3 September 2013,

EXP/384/ICANN/1 (.architect), § 129.

101 ICC, International Centre for Expertise, Independent Objector

vs. Steel Hill LLC, 21 November 2013, EXP/407/ICANN/24

(.medical), §§ 161-166.

102 ICC, International Centre for Expertise, The Financial Services

Roundtable vs. Auburn Park LLC, 14 January 2014, EXP/432/

ICANN/49 (.insurance), §§ 175-178.

103 ICC, International Centre for Expertise, Telecommunications

Regulatory Authority of the United Arab Emirates vs. Asia

Green IT System Bilgisayar San. ve Tic. Ltd. Sti., 24 October

2013, EXP/430/ICANN/47 (.islam), §§ 136-145 & EXP/427/

ICANN/44 (.halal), §§ 143-152.

104 Id., EXP/430/ICANN/47 (.islam), § 142; EXP/427/ICANN/44

(.halal), § 149.

105 Id., EXP/430/ICANN/47 (.islam), § 144; EXP/427/ICANN/44

(.halal), § 151.

106 ICC, International Centre for Expertise, Independent Objector

vs. Charleston Road Registry Inc., 30 December 2013, EXP/404/

ICANN/21 (.med), § 81; International Banking Federation vs.

Dotsecure Inc., 26 November 2013, EXP/389/ICANN/6 (.bank),

§§ 163-166.

107 ICC, International Centre for Expertise, Sportaccord vs. Dot

Sport Limited, 23 October 2013, EXP/471/ICANN/88 (.sport), §

158; Sportaccord vs. Steel Edge LLC, 21 January 2014, EXP/486/

ICANN/103 (.sports), § 43.4; Fédération Internationale de Ski

vs. Wild Lake LLC, 21 January 2014, EXP/421/ICANN/38

(.ski), § 48.4; International Rugby Board vs. Dot Rugby Limited,

31 January 2014, EXP/517/ICANN/132 (.rugby), § 76;

International Rugby Board vs. Atomic Cross LLC, 31 January

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Caroline Bricteux

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3

involvement and unaccountability of the registry

to the targeted community was sufcient to create

a likelihood of material detriment, whereas in the

.gay and .amazon cases, panels were unimpressed by

the claim that the commercial operation of the gTLD

would be equivalent to exploitation of the targeted

community. In three objections brought against

applications for .gay made by commercial entities,

the International Lesbian, Gay, Bisexual, Trans and

Intersex Association (ILGA) claimed that taking

a group’s name and using it to create a protable

business should be regarded as exploitation, unless it

is done for and endorsed by the relevant community.

Such an endorsement existed for a fourth applicant

for the .gay string, Dotgay, which had led an

application supported by ILGA and other LGBTQ

organizations.108 The three other applicants were all

planning to operate the .gay for prot and in an open

manner, allowing anyone to register a .gay domain

name.109 In ILGA’s view, these applications constituted

a major damage for the gay community, insofar as

they could deprive the community of the chance to

operate its own string. The panel acknowledged that

this lost chance might be regarded as detrimental

to the legitimate interests of the gay community,

but considered that this detriment alone was not

sufcient to uphold the objection. In the panel’s view,

the explicit exclusion in the AGB of “detriment that

consists only of the applicant being delegated the

string instead of the objector”

110

applied in that case,

even if ILGA and Dotgay were separate institutions,

because they shared identical interests.

111

Moreover,

the panel made it clear that its task was not to

determine which applicant would be the best

registry for a gTLD sought by different parties.112

2014, EXP/519/ICANN/134 (.rugby), § 90.

108 Dotgay would notably restrict registrations to only bona

de members of the community through the use of an

authentication system relying on partners from all segments

of the LGBTQ community, and work on a non-prot basis,

devoting its revenues to fund gay organizations and other

initiatives in the community (Application for .gay led by

Dotgay, 1-1713-23699, Response to questions 18(b) and 20(e),

available from:

result/applicationstatus/applicationdetails/444>).

109 Only one applicant (Top Level Domain Holdings Limited)

indicated it would provide for a procedure to report

inappropriate, harmful or damaging content.

110 AGB, § 3.5.4.

111 ICC, International Centre for Expertise, The International

Lesbian Gay Bisexual Trans and Intersex Association (ILGA) vs.

Top Level Design LLC, 16 November 2013, EXP/392/ICANN/9

(.gay), §§ 22-31; ILGA vs. Top Level Domain Holdings Limited,

16 November 2013, EXP/393/ICANN/10 (.gay), §§ 21-30;

ILGA vs. United TLD Holdco Ltd., 16 November 2013, EXP/394/

ICANN/11 (.gay), §§ 22-31.

112 String contention (i.e. the scenario in which several

applications for identical or confusingly similar strings

remain after the initial evaluation performed by ICANN

and potential objection proceedings) is dealt with in a

subsequent procedure (AGB, Module 4).

29

In the .amazon case, the panel was similarly not

convinced by the arguments brought forward by

the independent objector against applications led

by the online retailer Amazon. Amazon wished to

use its trademark “amazon” (in English, Japanese,

and Chinese) as a closed gTLD, meaning that the

only eligible registrants would have been Amazon

and its subsidiaries. According to the independent

objector, this registration policy entailed a risk

of misappropriation, because granting exclusive

rights on the strings to a private company would

prevent the use of the domains for public interest

purposes related to the protection, promotion and

awareness-raising on issues related to the Amazon

region. The panel did not follow these arguments for

two reasons.113 First, the panel noted that even if the

objection was successful, the Amazon community

would still not be entitled to use the gTLDs, since it

did not apply for them. Therefore the panel found

that the use of the strings was not crucial to the

protection of the Amazon community’s interests.

Second, the panel considered that “amazon” had

been used as a brand, trademark and domain

name for nearly two decades, also in the States

forming part of the Amazon community, without

any evidence that this has caused harm to the

Amazon community’s interests. In the panel’s

view, “it is unlikely that the loss of the “.com” after

“Amazon” will change matters”.

114

The objection was

then rejected and the application process should

have continued; however, Amazon’s success was

short lived. Indeed, the Governmental Advisory

Committee reached a consensus against the .amazon

applications115 and obtained the rejection of the

applications by the Board.116 Pursuant to the AGB, if

the GAC advised that there was a consensus among the

GAC members that a particular application should

not proceed, it would “create a strong presumption

for the ICANN Board that the application should not

be approved”.

117

The .amazon case was particularly

controversial: it took almost a year for the Board to

balance the competing interests of governments and

of Amazon, and to nally decide in favor of the GAC.

113 ICC, International Centre for Expertise, Independent Objector

vs. Amazon EU S.à.r.l, 27 January 2014, Consolidated cases

EXP/396/ICANN/13 (.amazon), EXP/397/ICANN/14 (.アマゾ

ン) and EXP/398/ICANN/15 (.亚逊), §§ 99-105.

114 Id., § 103.

115 GAC, Durban Communiqué, 18 July 2013,

icann.org/meetings/durban2013/presentation-gac-

communique-18jul13-en.pdf>, IV.1.a.i.

116 ICANN, Meeting of the Board New gTLD Program Committee,

14 May 2014, Resolution 2014.05.14.NG03,

icann.org/resources/board-material/resolutions-new-

gtld-2014-05-14-en>.

117 AGB, § 3.1.

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2016

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3

III. A global standard for

freedom of expression

30 With the New gTLDs Program, ICANN produced and

enforced a form of global standard for freedom of

expression, more precisely of the grounds that could

justify restrictions to the imagination of prospective

registries for new gTLDs. It has been without doubt

the most delicate policy question facing ICANN since

1998, going far beyond its technical mandate to

coordinate the Internet’s identiers. Furthermore,

it was indeed a burdensome task, considering the

diversity of existing laws governing speech around

the globe. This long policy development process

resulted in relatively broad standards. Consequently,

expert panels appointed by the International

Chamber of Commerce adopted different

interpretations of the AGB standards, which led

to opposite determinations in similar cases. In

the Limited Public Interest objection proceedings,

the most obvious point of disagreement was the

panels’ scope of examination, as discussed above.

Most of the panels accepted to review the intended

purpose of the application even if the applied-for

gTLD was not highly objectionable as such, while

other panels opting for a stricter interpretation of

the AGB easily concluded that words like “health”

or “medical” did not violate the right to health. The

discretion granted to the expert panels undermined

the objectives of predictability and fairness of the

new gTLD application process, in the absence of a

system of binding precedents or independent review

mechanisms to ensure a harmonized interpretation

of the AGB standards.118 The ICANN Board only

provided for ad hoc review mechanisms in the

case of seeming inconsistency, which resulted in

particularly lengthy dispute resolution proceedings

in those few cases. As seen with the controversial

.hospital case, it took almost three years to correct

the too broad interpretation of the AGB favored by

the original expert panel. The independence of the

objection process was also undermined by these

potential interventions of the ICANN Board.

31

ICANN has engaged in very delicate debates by

developing this global standard for freedom of

expression and it is not the end of the story. ICANN is

now requested by various constituencies (intellectual

property interests and some governments) to assume

greater responsibilities for policing illegal content on

the Internet, by increasing the obligations of domain

name registries and registrars confronted with

118 The ICANN Board acknowledged that establishing a

general review mechanism may be appropriate in future

rounds of the New gTLDs Program, to promote the goals of

predictability and fairness (ICANN, Regular Meeting of the

Board, Rationale to Resolutions 2016.02.03.12- 2016.02.03.13,

3 February 2016,

material/resolutions-2016-02-03-en>).

reports of abuse within the domains they administer.

In the following section, I will examine this heated

debate and examine how these technical operators

could be transformed into points of control of online

speech.

D. New Contractual Obligations

of Domain Names

Registries and Registrar

32

Obligations imposed by ICANN on domain name

registries were substantially increased with the

New gTLD Program. This evolution was not the

goal of the program, but rather the consequence

of several advices submitted to the ICANN Board

by the Governmental Advisory Committee and

implemented by ICANN after the publication of the

Applicant Guidebook. Indeed, while the AGB left it

up to the applicants to decide whether or not they

would use eligibility criteria or heightened rights

protection mechanisms, the GAC lobbied to impose

mandatory safeguards on broad categories of new

gTLDs. As a consequence, standards applicable

to the registration policies for new gTLDs were

amended during the course of the evaluation of the

applications.

33

The GAC submitted advice to the ICANN Board

on two general issues related to the New gTLD

Program: (1) the binding and enforceable nature of

the commitments made by the prospective registries

in their applications; and (2) the imposition of

safeguards for broad categories of strings. The GAC

advice was accepted by the Board in both cases,

which led to amendments to the Registry Agreement

(RA), which is the formal written and binding

agreement between the applicant and ICANN that

sets forth the rights, duties, liabilities and obligations

of the applicant as a registry operator. ICANN uses

a standard-format Registry Agreement rather

than personalized agreements. A revised standard

agreement was developed during the application

process, based on a draft agreement annexed to

Module 5 of the AGB, and formally adopted in July

2013.119 As registries cannot offer direct registration

services to the public, they enter into agreements

(Registry-Registrar Agreement, RRA) with registrars.

Registrars are required to obtain accreditation

from ICANN (through a Registrar Accreditation

Agreement, RAA) to be able to offer registration

services to the public and enter into registration

agreements with the prospective domain name

119 The Base Registry Agreement and all Registry Agreements

are available from:

pages/registries-2012-02-25-en>.

2016

Caroline Bricteux

242

3

holders.120

34

The rst GAC advice requested the Board of

ICANN to explain how ICANN would ensure that

any commitment made by applicants, in their

applications or as a result of any subsequent

change, would be overseen and enforced by ICANN.

Specically, the GAC advised that these commitments

should be transformed into binding contractual

commitments, subject to compliance oversight by

ICANN.121 In response to the GAC and as part of the

revision of the Base Registry Agreement, the ICANN

Board introduced a new schedule (Specication 11)

to the agreement: the Public Interest Commitments

(PICs).122 The Public Interest Commitments

Specication is a mechanism to allow a registry

operator to commit to certain statements made in

its application for the gTLD,123 as well as to specify

additional public interest commitments

124

. Pursuant

to the terms of the revised Base Registry Agreement,

these commitments become part of the agreement

125

and are enforceable by ICANN through a new dispute

resolution mechanism.

126

Registries have to agree

to implement and adhere to any remedies ICANN

imposes, which may include the termination of

the Registry Agreement.127 In February 2013 ICANN

requested all applicants to submit a TLD-specic

Public Interest Commitments Specication and

received a total of 499 PIC Specications.128 Until

then, the process was voluntary and applicants were

free to submit commitments to be incorporated in

the Registry Agreement.

35

The second general advice submitted by the GAC

called for the adoption of safeguards applicable to

broad categories of new gTLDs.129 Among the six

120 For a detailed account of the contractual network of the

gTLD namespace, see E. Weitzenboeck, ‘Hybrid net: the

regulatory framework of ICANN and the DNS’ (2014) 22(1)

International Journal of Law and Information Technology, at pp.

54-59.

121 GAC, Toronto Communiqué, 17 October 2012, IV.1,

gacweb.icann.org/download/attachments/28278845/

FINAL_Toronto_Communique_20121017.pdf>.

122 ICANN, Base Registry Agreement, updated 9 January 2014,

Specication 11

les/agreements/agreement-approved-09jan14-en.pdf>.

123 Specication 11(2) of the Base Registry Agreement.

124 Specication 11(3) of the Base Registry Agreement.

125 Section 2.17 of the Base Registry Agreement states:

“Registry Operator shall comply with the public interest

commitments set forth in Specication 11 attached hereto”.

126 Public Interest Commitment Dispute Resolution Procedure

(PICDRP), 19 December 2013,

en/applicants/agb/picdrp-19dec13-en.pdf>.

127 Specication 11(3) of the Base Registry Agreement.

128 ICANN, Posting of Public Interest Commitments (PIC)

Specications Completed, 6 March 2013,

icann.org/en/announcements-and-media/announcement-

06mar13-en>.

129 GAC, Beijing Communiqué, 11 April 2013,

safeguards recommended by the GAC to apply to

all new gTLDs, three are particularly interesting

in terms of the content control obligations they

entail for all new gTLD registries. Under the

headline “Mitigating abusive activity”, the GAC

advised that registry operators should “ensure that

terms of use for registrants include prohibitions

against the distribution of malware, operation of

botnets, phishing, piracy, trademark or copyright

infringement, fraudulent or deceptive practices,

counterfeiting or otherwise engaging in activity

contrary to applicable law”.130 Then, the GAC advised that

a mechanism to make complaints on these grounds

should be adopted by the registry operators,

131

as

well as “real and immediate consequences for the

demonstration of (…) violations of the requirement

that the domain name should not be used in breach

of applicable law; these consequences should include

suspension of the domain name”.132

36 The general safeguards proposed by the GAC were

adopted by the ICANN Board and implemented

as mandatory PICs in Specication 11 of the Base

Registry Agreement.133 However, because the

registry operator does not have a direct contractual

relationship with the domain name holders, the

Board adopted a PIC Specication that requires

the registry operator to “include a provision in its

Registry-Registrar Agreement (RRA) that requires

Registrars to include in their Registration Agreements

a provision prohibiting Registered Name Holders

from distributing malware, abusively operating

botnets, phishing, piracy, trademark or copyright

infringement, fraudulent or deceptive practices,

counterfeiting or otherwise engaging in activity

contrary to applicable law, and providing (consistent

with applicable law and any related procedures)

consequences for such activities including suspension

of the domain name”.134 Section 2.8 of the Registry

Agreement also provides that a registry “shall take

reasonable steps to investigate and respond to any

reports from law enforcement and governmental

and quasi-governmental agencies of illegal conduct

in connection with the use of the TLD”. Additionally,

Specication 11(1) of the Registry Agreement

requires registries of new gTLDs to use only registrars

that are party to the 2013 Registrar Accreditation

icann.org/download/attachments/27132037/Beijing%20

Communique%20april2013_Final.pdf>.

130 GAC Beijing Communiqué, Safeguard 2, p. 7 (emphasis

added).

131 Id., Safeguard 5, p. 8.

132 Id., Safeguard 6, p. 8 (emphasis added).

133 ICANN, Meeting of the Board New gTLD Program Committee,

Resolutions 2013.06.25.NG02 and 2013.06.25.NG03, 25 June

2013,

resolutions-new-gtld-2013-06-25-en>.

134 Specication 11.3(a) of the Base Registry Agreement

(emphasis added).

Regulating Online Content through the Internet Architecture

2016

243

3

Agreement (RAA).135 As a result, registrars that

wanted to offer registration services for new gTLDs

were obliged to sign a new RAA with ICANN, even if

their accreditation under the previous agreement

had not expired yet. The new version of the RAA,

adopted in June 2013, notably includes a new section

3.18 entitled “Registrar’s Abuse Contact and Duty

to Investigate Reports of Abuse”. It provides that

registrars must establish a dedicated email address

to “receive reports of abuse involving Registered

Names sponsored by Registrar, including reports

of Illegal Activity”. All reports must be investigated

by the registrar and responded to “appropriately”.

Information regarding “procedures for the receipt,

handling, and tracking of abuse reports” must be

published on the website of the registrar, which

must “document its receipt of and response to all

such reports”. Additional requirements apply if

the abuse complaint is led by “law enforcement,

consumer protection, quasi-governmental or other

similar authorities”: the reports must be reviewed

“within 24 hours by an individual who is empowered

by Registrar to take necessary and appropriate actions

in response to the report”. The RAA indicates that

“in responding to any such reports, Registrar will

not be required to take any action in contravention

of applicable law”.136

37

Domain name suspension, which is provided in

Specication 11(3)a of the Registry Agreement

as a potential consequence to illegal activities of

the domain name registrant, is a powerful tool to

deny access to online content. The registry, which

controls the authoritative record for resolving each

SLD within its TLD, has the technical capacity either

for deleting the connection between the domain

name and the associated IP address in the database,

or for diverting a domain name to another IP

address, such as one pointing to a law enforcement

message (see below). Domain name resolution can

also be suspended by the registrar that assigned

the domain name.137 In both cases an Internet user

who would type the web address containing the

suspended domain name in his web browser would

not be able to nd the requested website. The DNS

would return a non-existent or different domain

response. This technique is easy to implement as it

is not necessary to locate and conscate the server

hosting the content. Indeed, the content itself is

not taken down – it can still be accessed via the IP

address but most Internet users would be unable to

do so, because they would not know the IP address

of a specic website.

135 Specication 11(1) of the Base Registry Agreement.

136 ICANN, 2013 Registrar Accreditation Agreement,

www.icann.org/resources/pages/approved-with-specs-

2013-09-17-en>, § 3.18 (emphasis added).

137 L. DeNardis (2012), supra note 1, p.728.

38 Using the DNS as a tool for law enforcement is not

a new strategy. In 2008 the U.S. Congress enacted a

law (the “Prioritizing Resources and Organization

for Intellectual Property (PRO-IP) Act”) to expand

the scope of civil forfeiture (the process by which

the government can seize property that was used

in connection with an illegal activity) to encompass

the seizure of property used to facilitate copyright

infringement and counterfeiting.

138

Civil forfeiture

operates in rem: it is brought against the property

and not against its owner, based on the legal ction

that the property itself is guilty of wrongdoing.

139

Civil forfeiture has been increasingly used by the U.S.

Immigration and Customs Enforcement (ICE), in an

initiative called “Operation in Our Sites”,140 to seize

thousands of domain names of websites infringing

copyright or proposing counterfeited goods. U.S.

jurisdiction is asserted on domain names that are

administered by a U.S.-based registry (like Verisign

for the .com TLD) or that were purchased through

an U.S.-based registrar, regardless of the location

of the activities of the domain name holder. As a

consequence, the domain name may be seized, even

if U.S. courts would not have personal jurisdiction

over the domain name holder.141 In practical terms,

the seizure is accomplished with an ex parte court

warrant ordering the domain name registry to

redirect trafc from the seized domain to a website

with a law enforcement message from the U.S.

government.

39 With the new mandatory safeguard advised by the

GAC, the role of registries and registrars as critical

Internet points of control to deal with online illegal

activities is reinforced. In the procedure of seizure

described above, DNS operators have to comply

with decisions made by judicial authorities without

having to examine themselves if the content is

illegal.142 By contrast, under the new obligations

of the RA and RAA, registries and registrars must

138 Prioritizing Resources and Organization for Intellectual

Property (PRO-IP) Act of 2008, Section 206(a), Pub. L. No.

110-403, 122 Stat. 4256 (codied at 18 U.S. Code § 2323).

139 A. Bridy, ‘Carpe Omnia: Civil Forfeiture in the War on Drugs

and the War on Piracy’ (2012) 46 Arizona State Law Journal,

spec. pp. 688-694.

140 K. Kopel, ‘Operation Seizing Our Sites: How the Federal

Government is Taking Domain Names Without Prior Notice’

(2013) 28 Berkeley Technology Law Journal pp. 859-900.

141 J. Mellyn, ‘Reach Out and Touch Someone: The Growing Use

of Domain Name seizure as a Vehicle for the Extraterritorial

Enforcement of U.S. Law’ (2011) 42 Georgetown Journal of

International Law pp. 1241-1264.

142 Following legal actions that involved seizures and transfers

of domain names to dismantle criminal networks, ICANN

staff published a “thought paper” to offer guidance for

preparing orders that seek to seize or take down domain

names (ICANN, “Guidance for Preparing Domain Name

Orders, Seizures & Takedowns”, 7 March 2012,

www.icann.org/en/system/les/les/guidance-domain-

seizures-07mar12-en.pdf>).

2016

Caroline Bricteux

244

3

offer a point of contact to receive reports of abuse

from law enforcement agencies and must respond

“appropriately” to these reports,143 therefore

implying a form of examination of the claim of abuse.

Additionally, anyone can report to a registrar an

allegedly illegal activity involving a domain name.

Nothing prevents registries and registrars from

using domain name suspension as a reaction to these

reports, even if there is no court order or warrant

to support it. And the new contractual obligations

of registries and registrars are not limited to issues

of copyright infringement and counterfeiting: any

activity contrary to applicable law could lead to the

suspension of the domain name.

40 It remains to be seen how registries and registrars

will apply the new obligations embodied in the RA

and RAA and how closely ICANN will control their

implementation. But the absence of measures to

safeguard registrants’ freedom of expression gives

cause for concern that the DNS could be used as a

tool to censor online content. ICANN has disavowed

this worrying interpretation of the new contract

terms. As articulated by A. Grogan (ICANN’s Chief

Compliance Ofcer), “though the appropriate

interpretation of 2013 RAA is the subject of debate,

there are clear-cut boundaries between ICANN

enforcing its contracts and the enforcement of laws

and regulations” by existing institutions like law

enforcement authorities, regulatory agencies and

the judicial systems. He added that “a blanket rule

requiring suspension of any domain name alleged to

be involved in illegal activity goes beyond ICANN’s

remit and would inevitably put ICANN in the position

of interpreting and enforcing laws regulating website

content. At worst, it would put ICANN squarely

in the position of censoring, or requiring others

to censor, Internet content”.

144

The CEO of ICANN

reiterated this strong statement at the 54th General

Meeting of ICANN in October 2015.145 However, the

issue is far from going away, as intellectual property

groups are still demanding an active cooperation

from registrars and registries against illegal online

activities. Moreover, ICANN is not in a comfortable

position. As pointed out by D. Post, one may wonder

about the purpose of inserting these new provisions

into the standard agreements if ICANN had no

intention of enforcing them.146 Additionally, these

143 Section 2.8 of the Base Registry Agreement; Section 3.18 of

2013 Registrar Accreditation.

144 A. Grogan, ‘ICANN is not the Internet Content Police’, 12

June 2015,

not-the-internet-content-police>.

145 ICANN, 54th General Meeting in Dublin, Welcome Ceremony

& President’s Opening Session, 19 October 2015, transcript

available from

schedule/mon-welcome/transcript-welcome-19oct15-en>,

pp. 29 and seq.

146 D.G. Post, ‘Internet Infrastructure and IP Censorship’ (2015)

IP Justice Journal,

uncertainties could lead to registries and registrars

adopting voluntary practices to rapidly suspend

domain names that are allegedly being used for

unlawful or abusive purposes.147

E. Conclusion

41 The New gTLD Program is both a tremendous tool

to expand the Internet and a vehicle to set alarming

precedents with regard to freedom of expression

online. Throughout this paper, my aim has been to

show that this program will not only revolutionize

the DNS but also formalize the role of domain name

registries and registrars as points of control for the

content posted under all new gTLDs. The New gTLD

Program, which aimed at fostering competition and

diversity in the DNS, carries threats of censorship

at two levels. First, regarding the top level of the

domain, passionate discussions took place regarding

the strings of characters that could be delegated as

new gTLDs and upon which grounds applicants’

freedom of expression could be restricted. Obviously

it was not the gTLD per se that was targeted by this

policy, but the potentially offensive or controversial

content that might be published under the new

identiers. Therefore, proposed registration

policies were paramount to the determinations of

experts appointed by the International Chamber of

Commerce. Second and more worryingly, as a result

of governmental pressures, registries and registrars

are now designated points of contact for dealing

with alleged abuse committed in the domain they

administer. They are expected to take appropriate

measures to respond to reports of abuse and may

suspend domain names of websites proposing

allegedly illegal content. No process has been put in

place to ensure due consideration of the registrants’

freedom of expression.

42 Now that the application process for new gTLDs is

coming to an end, one should keep an eye on two

future developments. First, it will be interesting

to follow the compliance of new gTLDs registries

with their Public Interest Commitments and

the willingness of ICANN to impose remedies on

recalcitrant registries and registrars. Second, with

regard to “old gTLDs” introduced in the 1980s and

during the two rounds of expansion in 2000 and 2004,

it will be crucial to follow if the new obligations,

particularly the new Specication 11, will apply to

them when they will renew their Registry Agreement.

Particular attention should be paid to the Registry

internet-infrastructure-and-ip-censorship-by-david-post>.

147 Electronic Frontier Foundation, ‘Voluntary Practices

and Rights Protection Mechanisms: Whitewashing

Censorship at ICANN’ (21 October 2015),

org/deeplinks/2015/10/voluntary-practices-and-rights-

protection-mechanisms-whitewashing-censorship-icann>.

Regulating Online Content through the Internet Architecture

2016

245

3

Agreement between ICANN and Verisign for .com,

which is set to expire on 30th November 2024148.

* Caroline Bricteux is a PhD researcher in law at the Perelman

Centre for Legal Philosophy, Université libre de Bruxelles.

The author warmly thanks the organizers of and all

participants in the Third Netherlands Institute for Law and

Governance PhD Forum Law and Governance in the Digital

Era (VU Amsterdam, 20 November 2015), where an earlier

version of this work was presented.

148 The current version of the .com RA was initially set to

expire on 30 November 2018. In October 2016, the term of

the contract was extended to 30 November 2024 to coincide

with the term of the Root Zone Maintainer Services

Agreement concluded in September 2016 between ICANN

and Verisign to transition the NTIA’s administrative role

regarding root zone management (First Amendment to

.com Registry Agreement, 20 October 2016,

icann.org/sites/default/les/tlds/com/com-amend-1-pdf-

20oct16-en.pdf>). The amendment was a simple extension

of the term of the .com RA and did not include the new

standard clauses of the New gTLDs RA. Several commenters

criticized the absence of the new safeguards and protection

mechanisms. Taking note of these comments, the ICANN

Board indicated that the amendment includes a provision

that commits the parties to cooperate and negotiate in good

faith to amend the .com RA by the second anniversary date

of the amendment in order to preserve and enhance the

security of the Internet or the TLD. According to the Board,

this language was negotiated to provide an opportunity for

longer term discussions and additional community input

that may be needed to discuss potential changes to the .com

RA, such as moving to the form of the New gTLDs RA (ICANN,

Regular Meeting of the Board, Resolution 2016.09.15.09, 15

September 2016,

material/resolutions-2016-09-15-en>).