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Minding the GAC and the Heckler's Veto

R. Shawn Gunnarson

ICANN meetings sometimes congeal around a single theme. In San Francisco the theme was captured on clever t-shirts bearing the iconic symbol of the London Underground with the words, "Mind the GAC." Here was a succinct and timely plea for the ICANN Board to pay serious attention to the Governmental Advisory Committee (GAC)'s concerns about new generic Top-Level Domains (gTLDs), rather than to risk undermining the long-term viability of the multi-stakeholder model.

The relationship between the Board and the GAC surely needs tending. In fairness, the Board appears to be getting that message. Extraordinary face-to-face meetings in Brussels and San Francisco appear to have improved communication, and the latest round of the GAC's comments is narrowing the field of disagreement to a manageable scope.

All that improvement is to be applauded. But achieving agreement cannot come at the cost of fundamental principles. In particular, the GAC's early warning procedure raises free expression problems that have received too little attention.

The latest version of the Applicant Guidebook describes the GAC's Early Warning as a device to give a gTLD applicant "an indication that the application is seen as potentially sensitive or problematic by one or more governments." Although "not a formal objection," it is intended to "be taken seriously as it raises the likelihood that the application could be the subject of GAC Advice on New gTLDs ... or of a formal objection ...."

This warning "typically results from a notice to the GAC by one of more governments that an application might be problematic," in the sense that it could "potentially violate national law or raise sensitivities." Several potential sources for such sensitivities have been suggested. They range from strings signifying "'a particular group of people or interests based on historical, cultural, or social components of identity ..., political opinion, membership of a national minority, disability, age, and/or a language or linguistic group'" to those signifying "'particular sectors, such as those subject to national regulation ... or those that describe or are targeted to a population or industry that is vulnerable to online fraud or abuse.'" However, the Guidebook stresses that "[a] GAC Early Warning may be issued for any reason" and that "GAC consensus is not required for a GAC Early Warning to be issued."

Finally, the Guidebook advises that "[t]o reduce the possibility of a GAC Early Warning, all applicants are encouraged to identify potential sensitivities in advance of application submission ...."

Stripped to its essentials, the GAC Early Warning is (1) an informal notice (2) of one or more governments' objections to an applied-for string (3) based on any reason whatever (4) that does not require GAC consensus and (5) that should serve as a caution for applicants to identify and eliminate "potential sensitivities."

Perhaps unwittingly, this procedure infringes on the right of free expression by permitting what the U.S. Supreme Court has labeled the heckler's veto. This occurs, typically, when an unpopular group is denied permission to hold a public demonstration out of concern that the group's opponents will challenge the demonstrators violently. The heckler vetoes the speech.

The GAC's Early Warning, as now formulated, potentially creates a heckler's veto. It may place the GAC's imprimatur on an objection by a single member for any reason at all. Although framed as an informal notice, this procedure is intended to operate as a soft veto on applied-for strings. Indeed, applicants are encouraged to self-censor to avoid triggering a notice at all.

Censoring all domain names on the global Internet based on the political, moral, social, or religious proclivities of a single country sets a dangerous and damaging precedent for free expression. If freedom in the choice of domain names is so readily compromised, the freedom to choose content will be insecure. The Tunis Commitment and the Universal Declaration of Human Rights establish free expression on the Internet as a fundamental human right that the gTLD procedures should honor.

Behind the Early Warning Notice stands the fair-minded intuition that applicants should not bear the time and expense of a full-blown evaluation when an applied-for string raises objections that might ultimately thwart the application. But the procedure could be better reconciled with the principle of free expression by enumerating a limited list of objections that would support an Early Warning and by authorizing one only when an objection has the force of consensus behind it. Narrowing the occasions for issuing an Early Warning in these ways would increase the probability that when one is issued, it would stand on an exception to free speech recognized under international law.

Efforts to heal the broken relationship between the ICANN Board and the GAC are admirable and necessary, but there is a danger in allowing the pendulum to swing too far. Free expression should not be sacrificed to achieve agreement over the introduction of new gTLDs.

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie
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