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

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 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] Targeting intermediaries rather than content providers overcomes the difficulty of identifying the source and recipients of a particular piece of content on the Web. However efficient 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 significant 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]

I will argue in this paper that domain name registries and registrars might also serve as points of control  [5] 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 significantly 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 defined 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 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.

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 identifies potential future developments.

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 significantly 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 file, 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 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 identifiers. The key was the hierarchical division of the namespace into different levels of domains. This tree-shaped hierarchy is reflected 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 file that contains the list of the authoritative servers for each top-level domain.

The hierarchical design of the DNS is reflected 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-profit 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 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]

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 identifiers (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 the performance of the IANA functions to a new, separate legal entity, which would be formed as an affiliate 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 affiliate of ICANN, called Public Technical Identifiers.  [19]

As part of its DNS managing duties, ICANN contracts with registries  [20] 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.

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 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.

Before the New gTLDs Program, ICANN launched two rounds of domain name expansion for gTLDs, which resulted in the delegation of fifteen new gTLDs between 2001 and 2011. The first 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, 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 gTLDs  [31] , i.e. specialized gTLDs that serve the needs of a defined 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]

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] 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 filtering 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 influence 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 finally approved the new .xxx TLD in March 2011.  [44]

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 development process  [45] 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 financial  [50] 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.

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 identifiers 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 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 – identifiers 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 find 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.

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 file 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 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 defined community. The International Center of Expertise of the International Chamber of Commerce (ICC) was designated as a DRSP for the objections filed 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 file 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 file or not file any particular objection.

In principle, the Board of ICANN was not supposed to directly deal with conflicts 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 specific 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 unified 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 confirmed when looking at Module 5 of the Guidebook (Transition to Delegation), which provides that ICANN’s Board of 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 specific 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).

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).

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.

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 holders.  [120]

The first 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. Specifically, 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 (Specification 11) to the agreement: the Public Interest Commitments (PICs).  [122] The Public Interest Commitments Specification 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-specific Public Interest Commitments Specification and received a total of 499 PIC Specifications.  [128] Until then, the process was voluntary and applicants were free to submit commitments to be incorporated in the Registry Agreement.

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 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]

The general safeguards proposed by the GAC were adopted by the ICANN Board and implemented as mandatory PICs in Specification 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 Specification 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, Specification 11(1) of the Registry Agreement requires registries of new gTLDs to use only registrars that are party to the 2013 Registrar Accreditation 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 filed 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]

Domain name suspension, which is provided in Specification 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 find 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 confiscate 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 specific website.

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 fiction 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 traffic from the seized domain to a website with a law enforcement message from the U.S. government.

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 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.

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 Officer), “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 54^th 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 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]

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 identifiers. 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.

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 Specification 11, will apply to them when they will renew their Registry Agreement. Particular attention should be paid to the Registry Agreement between ICANN and Verisign for .com, which is set to expire on 30^th November 2024  [148] .

* 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.