Citing Free Speech Concerns, Cyber-Rights Groups Call for Hearings on Internet Domain Name Decisions

NEW YORK — In a move to protect freedom in cyberspace, a coalition of cyber-rights groups and scholars last night issued a joint letter to the U.S. Department of Commerce calling for hearings and additional public commentary before the department acts on recent Internet domain name decisions that limit free expression.

The coalition argues that artificial limitations placed on the number of generic top-level domain names, such as “.com,” and “.org,” present a serious threat to freedom of expression. The groups also say that the closed process imposed by both the Internet Corporation for Assigned Names and Numbers (ICANN) and the Commerce Department violates the Due Process clause of the Constitution and the Federal Administrative Procedures Act (APA).

“Top-level domain names make content visible on the Net and are the road signs for navigating cyberspace,” the coalition said in its letter. By severely limiting the domain space, ICANN and the Commerce Department have failed to recognize the needs and free speech rights of individual Internet users and non-commercial organizations.

ICANN – a new global organization originally chartered by the U.S. government to administer the Internet addresses and the Domain Name System that govern what a Internet site can be called and how it can be found – recently approved only seven new top level domain names. This decision came as many experts have voiced concerns over corporate domination of the Internet domain name system through a combination of bulk registrations and intellectual property-based legal threats.

The coalition, including Professor A. Michael Froomkin from the University of Miami (Florida) Law School, the American Civil Liberties Union, the Electronic Privacy Information Center and Computer Professionals for Social Responsibility, seeks to broaden Internet democracy and defend free speech online.

The group also voiced concerns over the undemocratic process by which domain names are administered, saying that ICANN’s decision making process may have violated various federal laws (such as the APA) that are designed to ensure openness and public accountability.

“ICANN’s decision-making process was characterized by a large number of arbitrary decisions, process failures, and plain mistakes of fact,” the letter said. “The process got off to a bad start when ICANN announced that it would require a $50,000 non-refundable fee from domain name applicants, thus skewing the pool towards those organizations able to afford a $50,000 lottery ticket. Deadlines for public comment were missed, and the period for public input was small.”

The letter specifically cited ICANN’s rejection of the “.union” proposal based on unfounded speculation that the international labor organizations that proposed this new top level domain name were somehow undemocratic. The procedures being used gave the proponents no opportunity to reply to this unfounded accusation.

ICANN also rejected “.iii” because it was concerned that the name was difficult to pronounce, even though the ability to pronounce a proposed domain name had never before been mentioned as a decision criterion.

The National Telecommunications and Information Administration (NTIA), a subdivision of the Commerce Department, will soon receive ICANN’s recommendations and has the final say on which new domain names will be introduced. The coalition pointed out the general need for oversight (including a more open notice and public comment procedure) and urged NTIA to help remedy this situation by holding hearings on this matter and allowing opportunities for the public to comment on these developments.

“Any attempt by the U.S. government or its agents to decide such an important matter of public policy without adherence to principles of notice and public participation embodied in the APA would be wrong as a matter of principle, and indeed illegal not to mention potentially unconstitutional,” the letter said.

According to the groups, ICANN must follow these federal guidelines for a number of reasons, including that its funding originates from the authority that the Commerce Department has given it.

“We therefore believe that it is essential for you to carefully consider the substance of this decision rather than to rubber-stamp ICANN’s recommendations, and to allow the public to comment before making any decisions,” the coalition said. “Indeed, we believe that it would be arbitrary and capricious, and a denial of basic due process, to do anything less.”