Lawfare, the abuse of the law and legal system to achieve strategic political and military goals, has taken many forms in the decade since Major General Charles Dunlap first defined the term as “the use of law as a weapon of war.” On May 19, 2009, my colleague Brooke Goldstein and I warned “the next phase of Islamist lawfare may well center directly upon the internet itself.” Our concern lay in the expiration of a contract between the Internet Corporation for Assigned Names and Numbers (ICANN) and the U.S. Commerce Department, which had been in place since November 25, 1998.
ICANN was established as a non-profit corporation based in California in 1998, and is the entity responsible for assigning domain names on the Internet. ICANN works “in particular to ensure the stable and secure operation of the Internet’s unique identifier systems.” As part of this mission, ICANN approves Domain Name Registrars, which are organizations that register specific domain names, and assigns IP addresses, the numerical codes by which computers actually connect to each other via the Internet.
Unfortunately, the concerns we raised over about how ICANN‘s new multilateral system of governance could be hijacked by lawfare aimed at restricting free speech are now being realized. On September 27, journalist Kevin Murphy of DomainIncite.com reported that ICANN‘s board of directors removed a reference to “terrorism” from the most recent version of its Draft Applicant Guidebook (DAG). While the term “terrorism” was included without any conceivably objectionable modifiers such as “Islamist,” the Chairman of the Pan Arab Multilingual Internet Group Khaled Fattal declared that the term “terrorism” itself was objectionable because “it will be seen by millions of Muslims and Arabs as racist, prejudicial and profiling.” Fattal requested not only its removal, but an apology from ICANN. Similarly, Abdulaziz H. Al-Zoman of SaudiNIT claimed “the international community is extensibly [sic] divided on who is a terrorist and who is a freedom fighter” as reason to remove the term.
By removing any reference to “terrorism” from the DAG, ICANN cannot perform a background check to verify that domain name registrars are not affiliated with terrorist organizations or otherwise used to facilitate acts of international and national terrorism. By removing any reference to terrorism in its Guidebook, ICANN is failing to perform its essential mandate — to ensure Internet stability.
Shortly thereafter, on October 1, ICANN published a letter it had received from Amre Moussa, Secretary General of the League of Arab States, which stated that ICANN‘s practice of creating geographical regions “comes into conflict with the operational precedent of many UN agencies that specifically recognize the Arab region” and asked ICANN to “take the necessary action in this regard.” As Kevin Murphy explained, “If ICANN were to add these states to the five geographic regions it already recognizes in its bylaws, it would grant the Arab nations a seat on its board of directors, among other rights.” Unlike every geographic area currently recognized by ICANN, the “Arab region” would be an ethnically homogenous entity, which would represent a fundamental change in its structure and provide uniquely preferential treatment for the Arab League.
The Secretary General‘s reference to “operational precedent of many UN agencies” is particularly troubling, given the fact that too many UN agencies have failed to fulfill their purposes as a result of politicization. The Arab League, moreover, has long been active in the process of turning international mechanisms to serve its political ends, since it forms the core of the Organization of the Islamic Conference (OIC), the same dominant 57-member voting bloc at the UN General Assembly that systematically ignores human rights abuses when those abuses are committed by its member states. For example, the Arab League emphatically rejected the arrest warrant issued by the International Criminal Court for Sudanese President Omar al-Bashir, while the OIC expressed its solidarity with al-Bashir and the Sudanese government. The Republic of Sudan has been an OIC member since 1969.
Even more troubling is the fact that the OIC is spearheading a lawfare campaign at the United Nations to exclude the targeting of both American and Israeli civilians; that is civilians of what they deem an “occupying force,” from any international definition of the crime of terrorism. There is no valid reason why state sponsors of terrorism should be permitted to define the term in their best interests, nor is there a valid justification for allowing the Arab League to dictate what can and can not be registered as an Internet domain name.
Although many might take domain names for granted, control over domain names, as well as their registrars, carries with it considerable ramifications. Reports are now emerging that Libya is removing sites using the .ly domain name that conflict with its Shari‘a-derived law, claiming that the content of these sites is “obscene, offensive and immoral.” Whether and how this reported practice will extend to those who use the extremely popular site www.bit.ly to shorten web addresses when posting on Twitter remains to be seen, but is troubling regardless.
ICANN‘s vacillation regarding terrorism, which necessarily extends to terror finance, and pressure being exerted to make it ever more susceptible to politicization, poses a grave risk not only to the state of global free expression, but to national security as well. In 1996, a specially constituted panel of federal judges in the case ACLU v. Reno declared the Internet to be a free speech zone, with Judge Stewart Dalzell stating that the Internet is “the most participatory form of mass speech yet developed.” If ICANN is co-opted, Libya‘s actions could be replicated on a global scale, and transition the world from the Information Age to one of disinformation.
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