13 Feb draft final report on new gTLDs - censorship is still a problem

[Robin Gross]

Hi NCUC'ers,

ICANN has released a revised draft final report for intro of new gTLDs. 
Unfortunately the report has not taken our views into account adequately 
and it remains substantively unchanged from the Nov version. But there 
is more detail now given the inclusion of the GAC principles, and the 
news is not good - still no controversial ideas allowed in the new gTLD 
space. My comments on the specific language from the draft final report 
are below in all caps.

More comments and thoughts welcome.

Best,
Robin

13 Feb Draft Final Report on Intro of New gTLDs:
http://gnso.icann.org/drafts/GNSO-PDP-Dec05-FR13-FEB07.htm

Term of Reference Two: Selection Criteria – String Criteria

[...]

v) Strings should not be contrary to public policy (as set out in advice 
from the Governmental Advisory Committee)


According to the GAC guidelines:
2.1 No new gTLD string shall promote hatred, racism, discrimination of 
any sort, criminal activity, or any abuse of specific religions or cultures.

THIS IS THE ANTI-FREE SPEECH COMPONENT OF THE STRING CRITERIA WHERE 
IDEAS LIKE "ABORTION" "GAY" AND "MEDICAL MARIJUANA" AND OTHER ISSUES 
THAT ARE CONTROVERSIAL OR ILLEGAL IN ONE COUNTRY CAN BE BANNED FOR USE 
IN A NEW GTLD IN ALL COUNTRIES.

[...]

2.6 Terms of national, cultural or religious significance should only be 
considered for the codes of new gTLDs where there is a clear and 
legitimate candidate “sponsor” for such an application and subject to no 
major objections from the community concerned.

WHO IS THE LEGITIMATE SPONSOR OF .GOD? ACCORDING TO #8 BELOW, ICANN 
STAFF GETS FIRST CRACK AT DECIDING, BUT THE FINAL DECISION RESTS WITH 
THE BOARD. BESIDES A LOT OF WORK, THIS OPENS ICANN UP TO LAWSUITS FROM 
THOSE WHO WERE DEEMED AN "ILLEGITIMATE" SPONSOR.

[...]

2.13 If there is doubt about the interpretation of these provisions for 
specific applications, ICANN should consult the GAC, the relevant 
government(s) directly, and/or the responsible services of the UN. If 
the GAC or individual GAC members express formal concerns about a 
specific new gTLD application, ICANN should defer from proceeding with 
the said application until GAC concerns have been addressed to the GAC's 
or the respective government's satisfaction.

SO IF ANY COUNTRY OBJECTS TO ANY NEW GTLD FOR ANY REASON, THE 
APPLICATION STOPS? AND IT CAN'T RESTART UNTIL THE COUNTRY IS SATISFIED. 
THIS SHOULD BE PROPERLY NAMED THE "HOLD MY BREATH 'TIL I'M BLUE IN THE 
FACE" CLAUSE.

8. The Committee engaged in detailed discussion of the string 
requirements which have now been simplified, after reference to the 
/Staff Discussion Points /and to external experts who have provided 
their input into the processs. ICANN would, to implement the policy, 
develop an implementation plan that included staff being able to make 
preliminary determinations on whether the application complies with the 
string requirements and that ICANN may engage appropriate expert advice 
in order to make a determinations about string contention.

SO INSTEAD OF SIMPLY BEING "CONTENT NEUTRAL", ICANN WILL DECIDE WHAT IS 
CONTROVERSIAL AND AGAINST PUBLIC MORALITY, AN INHERENTLY SUBJECTIVE AND 
UNPREDICTABLE PROCESS.

[...]

10. The following sections deal specifically with “string” criteria and 
include the results of intensive discussion about what kinds of string 
criteria were appropriate, practical to implement and which reasonably 
balanced divergent Constituency interests. For example, the NCUC argued 
in its December 2006 comments on the 14 November 2006 draft that the 
“proposal is [also] fundamentally flawed in that it falsely assumes 
there is a [sic] agreed-upon global standard of morality, religion, or 
expression that can be imposed on the entire world through ICANN policy. 
The draft recommendations would be practically impossible to enforce due 
to this fundamental…premise in the proposed policy.” After detailed 
discussion about the intent of the recommendation, study of the draft 
GAC public policy principles and the commitment to using already 
existing bodies of well-established international law, ICANN staff have 
proposed an implementation process which addresses and balances the 
views of a wide range of participants.

SO WHERE IS THE PROPOSED IMPLEMENTATION PROCESS THAT ADDRESSES AND 
BALANCES OUR VIEW? HOW DOES ICANN PROPOSE HANDLING THE SIMPLE FACT THAT 
THERE ARE NUMEROUS AND COMPETING VIEWS OF WHAT IS AGAINST PUBLIC POLICY? 
WHAT THE PUBLIC POLICY IS DEPENDS UPON THE PARTICULAR NATION AND 
PERSPECTIVE, ICANN CANNOT PROPOSE TO ARBITRATE BETWEEN COMPETING 
NATION'S PUBLIC POLICY OBJECTIVES AND SET GLOBAL PUBLIC POLICY. THESE 
DECISIONS MUST BE LEFT TO NATIONAL LEGISLATURES.