On Sunday, the New York Times ran a story by Natasha Singer on the ongoing generic top-level domain (gTLD) expansion. Singer correctly notes that there is a great deal of skepticism that the new gTLDs will add social value. After all, what is the social value of .book when there is already .book.com?

Singer also raises cultural, expression, and competition concerns:

There’s a larger issue at stake, however. Advocates of Internet freedom contend that such an expanded address system effectively places online control over powerful commercial and cultural interests in the hands of individual companies, challenging the very idea of an open Internet. Existing generic domains, like .net and .com, overseen by Verisign Inc., a domain registry, have an open-use policy; that means consumers can buy domain names ending in .com directly from retail registrars like GoDaddy. With a new crop of applicants, however, Icann initially accepted proposals for closed or restricted generic domains, a practice that could limit competing views and businesses.

It’s true that there is concern over “closed generics,” but I think there is a deeper problem than anti-competitiveness that could emerge from TLD expansion.

Suppose that, as anticipated, TLD registries are able to restrict the scope of the sites that can use their domain name. For example, Google intends to restrict .app to uses related to (Android?) applications. These restrictions could make a great deal of economic sense—owning a .app domain name could function as a certification of a certain level of quality.

Putting aside any anti-competitive concern, restricted TLDs raise the question of who, exactly, is the final arbiter. Let’s suppose that Google rejects an application for a .app domain name for whatever reason. Can the rejected applicant appeal? And to whom?

Google is a Delaware corporation based in California. ICANN is incorporated in California. I can imagine lawsuits in Delaware or California over domain name rejections.

But the scarier possibility is that ICANN will try to resolve these disputes internally, possibly with input from its Governmental Advisory Committee (GAC). This would be problematic because the GAC is not known for its adherence to any sort of rule of law.

If GAC intervention in .app doesn’t worry you, consider the .gay TLD. At least one vision of .gay is as a safe online space for the global gay community. Suppose that the .gay registry, after winning its bid and publicly setting out content guidelines, rejects sites that engage in hate speech against gays. If disputes over such rejections end up in the GAC, then that could be disastrous, as countries like Saudi Arabia and Iran have objected to the mere existence of the .gay TLD.

We can debate whether restricted TLDs should be allowed in the first place, but we should all agree that if they are, the GAC should have no role in policing the content restrictions that registries impose to maximize the value of the namespace. The last thing we need is the world’s governments making policy about expression online.

ICANN is meeting in Durban, South Africa this week, and this morning, its Governmental Advisory Committee, which goes by the delightfully onomatopoetic acronym GAC, announced its official objection to the .amazon top-level domain name, which was set to go to Amazon, the online purveyor of books and everything else. Domain Incite reports:

The objection came at the behest of Brazil and other Latin American countries that claim rights to Amazon as a geographic term, and follows failed attempts by Amazon to reach agreement.

Brazil was able to achieve consensus in the GAC because the United States, which refused to agree to the objection three months ago in Beijing, had decided to keep mum this time around.

The objection will be forwarded to the ICANN board in the GAC’s Durban communique later in the week, after which the board will have a presumption that the .amazon application should be rejected.

The board could overrule the GAC, but it seems unlikely.

This is a loss for anything resembling rule of law on the Internet. There are rules for applying for new generic TLDs, and the rules specifically say which geographic terms are protected. Basically, anything on this list, known as ISO 3166-1 is verboten. But “Amazon” is not on that list, nor is “Patagonia;” .patagonia was recently withdrawn. Amazon and Patagonia followed the rules and won their respective gTLDs fair and square.

The US’s decision to appease other countries by remaining silent is a mistake. The idea of diplomacy is to get countries to like you so that you can get what you want on policy, not to give up what is right on policy so that other countries will like you. I agree with Milton Mueller, whose bottom line is:

What is at stake here is far more important than the interests of Amazon, Inc. and Patagonia, Inc. What’s really at stake is whether the Internet is free of pointless constraints and petty political objections; whether governments can abuse the ICANN process to create rights and powers for themselves without any international legislative process subject to democratic and judicial checks and balances; whether the alternative governance model that ICANN was supposed to represent is real; whether domain name policy is made through an open, bottom-up consensus or top-down by states; whether the use of words or names on the Internet is subject to arbitrary objections from politicians globalizing their local prejudices.

PFF Adjunct Fellow Mike Palage led this extraordinary discussion of ICANN’s origins, evolution and future with four of ICANN’s “Founding Fathers”: Milton Mueller (author of Ruling the Root), law professor David Johnson, ICANN’s first CEO Mike Roberts and then ICANN CEO Paul Twomey. In particular, the group discussed ICANN’s mission, governance structure, and accountability; the difficult issue of new generic Top Level Domain names (gTLDs) and trademark concerns; and ICANN’s future relationship with the U.S. government. Be sure to check out the handy ICANN Glossary on page 33. The audio can be downloaded here.

Here’s the transcript (PDF):