ICANN Must Follow Its Own Rules

Written by Nuala O’Connor

A commercial dispute over naming rights online is threatening to give governments an oversized role in how the internet is governed. For several years, Amazon.com has sought approval for .amazon TLD (top-level domain) names. In spite of the fact that the company achieved perfect scores on the applications under existing ICANN rules, their application was blocked by the governments of Brazil and Peru as part of their role on the Governmental Advisory Committee (GAC), which advises ICANN.

This is where things become problematic. The GAC (and the governments they represent) is not supposed to have a veto power over ICANN decisions. In fact, one of the key reasons for last year’s transition to a new governance structure was to further insulate ICANN from such political pressure. That process seems to have failed here. A review conducted by an independent panel (convened according to ICANN’s own rules) found that “by giving complete deference to the consensus advice of the Government Advisory Committee (“GAC”) regarding whether there was a well-founded public policy reason for its advice, the NGPC [New gTLD Program Committee] failed in its duty to independently evaluate and determine whether valid and merits based public policy interests existed supporting the GAC’s consensus advice.” Worse, the panel was “unable to discern a well-founded public policy reason for the NGPC’s decision.”

Our intent in this comment is not to opine about the appropriate use of .amazon. The decision certainly raises a challenging debate about institutional interests in a word, a region, a corporate name, and the balance of the interests of commercial actors versus a government actors versus individual users (such as those in the Amazonian region). In many ways, this is exactly why ICANN exists: to provide balance in international debates and represent voices from governments, companies, and consumers.

At CDT, we have long supported the multistakeholder approach to internet governance, and ICANN has long been a model – really, the model – for multistakeholder governance not only here, but in other sectors. We believe in the ongoing success of ICANN; we supported the successful transfer of the naming functions from the U.S. government, and we repeatedly warned of the danger of undue government interference in the decisionmaking processes.

While we recognize that there are thoughtful arguments on both sides about the subject matter and facts of this situation, the reality is that Amazon – the company – followed all the required processes, even with the U.S. government stepping aside from GAC’s recommendation to allow the objections of Brazil and Peru to be elevated. ICANN followed the clearly articulated list of protected geographic names developed by the ISO, which did not include Amazon.

It is a fundamental underpinning of multistakeholderism that all parties are equal. Thus, government interests should not be elevated above individual or commercial interests when those interests are deemed legitimate after appropriate review and process. To allow the GAC to overrule legitimate ICANN processes is to place the governments on superior footing – and seriously damages the legitimacy, and the longevity, of the multistakeholder governance model.

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