[Fwd: [gtld-council] response on NCUC amendments]

[Robin Gross]

FYI:
-------- Original Message --------
Subject: 	[gtld-council] response on NCUC amendments
Date: 	Mon, 04 Jun 2007 14:15:02 -0700
From: 	Robin Gross <robin at ipjustice.org>
Reply-To: 	robin at ipjustice.org
Organization: 	IP Justice
To: 	Philip Sheppard <philip.sheppard at aim.be>
CC: 	gtld-council at gnso.icann.org
References: 	<4661A776.1050206 at ipjustice.org> 
<00e801c7a685$6d58dd30$e601a8c0 at PSEVO>



Thank you, Philip. I will try to answer your questions below. Sorry if 
its a bit long, but I thought better too much, than too little.

Philip Sheppard wrote:

>Robin,
>I have read the NCUC 5 proposals and have some questions.
>The questions are listed by proposal number.
>
>1. The use of the word "prior" is a limitation on rights. 
>- Why do you wish to widen it ?
>  
>
The concern is regarding certain rights (such as trademarks) receiving 
special privileges in ICANN processes over other equally legitimate 
rights, such as freedom of expression. We are concerned by the existing 
draft naming one specific prior interest as needing protection 
(trademark), to the dis-advantage of other legitimate interests. We are 
also concerned about proposals to allow for trademark holders to be 
given special privileges of prior registration rights to the 
disadvantage of non-commercial users of domain names.

>Trade mark and other laws are clear. 
>- Which laws relate to "freedom of expression" ?
>  
>
Most countries have their own definitions for freedom of expression, so 
this is largely a national law issue. For example in the US, the US 
Constitution's First Amendment governs freedom of expression rights. 
Different countries work out the details differently as to what "free 
expression" means in that country. So examination of various national 
free expression guarantees is worth looking at. Under the US 
interpretation of free expression, individuals are allowed to be 
insensitive about other's feelings and the government cannot impose 
political correctness on people's expression (that is left to social 
constraints). So, our proposed policy would not pass constitutional 
muster if the US Government tried to pass it in the US. Someone like the 
ACLU could easily go into court and get an injunction against the 
implementation of our policy recommendations as a violation of freedom 
of expression rights. But since ICANN is not the US Government, it may 
not be required to respect freedom of expression in its policies 
(although a court challenge could prove otherwise). A few European 
countries also prohibit "hate speech", but even there they don't mandate 
"sensitivities" as the existing proposal does. The draft gnso proposal 
ensures that the even greater intolerances in countries with broad bans 
on expression, such as China and Tunisia will cumulatively be imposed on 
the entire world through ICANN policy.

Obviously Article 19 of the 1948 Universal Declaration of Human Rights 
is the most important international free expression guarantee, which 
guarantees every citizen "the right to freedom of opinion and 
expression; this right includes freedom to hold opinions without 
interference and to seek, receive, and impart information in any media 
and regardless of frontiers".

Note that the guarantee is "in any media" and so even though agreed to 
more than 50 years ago, it speaks precisely to Internet policymakers of 
today. Just because we have a new medium on our hands does not mean our 
free expression rights can be limited. And then the censors always site 
UDHR Article 29 which allows them to censor certain speech in their own 
territory. But Article 29 does not justify extending national 
intolerances into a global ban on that speech as the draft gnso 
recommendations attempt to. If anything, it underscores the idea that 
Nations decide what speech they accept in their jurisdiction - not a 
global standard. Other international free expression guarantees include 
Article 10 of the European Convention on Human Rights, which has been 
interpreted in case law in 2006 as directly applying to the Internet; 
and the following international and in many cases legally binding 
conventions guarantee "insensitive" expression:
• 1966 International Covenant on Civil and Political Rights (Article 19)
• 1981 African Charter on People’s and Human Rights (Article 9)
• Inter-American Bill of Rights:
1948 American Declaration of the Rights and Duties of Man (Article 4)
1978 American Convention on Human Rights (Article 13)

So there are a number of national and international standards for free 
expression, and we haven't even begun to explore them and how they would 
be impacted by our policy or how the proposed policy violates the values 
they are trying to protect.

There is no international legal standard of "sensitivity" such as we are 
creating in this policy, and so the gnso is without legal precedent to 
support a policy that mandates "sensitivity". That interpretation turns 
internationally recognized free expression guarantees on their head.

>- Does this not duplicate your recommendation 3 ?
>
>2. Your  proposal here seems to say  "applicants should not break the law". 
>- What is the point of this recommendation?
>It appears to be a destructive amendment to the morality issue the groupwas trying to cover
>by reference to international norms. 
>- Is this its intent ?
>  
>
This amendment is intended to give applicants the ability to apply for 
domains names that are within the limits of the law of the country in 
which they operate. It is meant to recognize that there are legal 
differences between countries and ICANN doesn't need to pick sides 
between these differences. The NCUC amendment is intended to protect the 
rights of people with differing views of "morality" than the dominant 
view to be allowed to express themselves in a tld. ICANN attempting to 
regulate morality is mission-creep in the extreme; even if one agrees 
that its a noble cause, it doesn't belong at ICANN! These decisions are 
left to local lawmakers and local law. There hasn't been any showing of 
a need for ICANN to try to set a global standard.

Under NCUC's proposal, if the Egyptian govt considers the idea of "gay" 
to be offensive, it cannot prevent Europeans or Americans from having a 
conversation at ".gay". However Egypt remains free to regulate within 
Egypt. Under the NCUC proposal, people will not be forced into applying 
for domains under the most restrictive view of morality in the world, as 
the draft recommendations are currently designed. Again, we are trying 
to build in some recognition of free expression values into this policy.

>3. You say the combined wisdom of the ICANN Government Advisory Committee is misguided in
>their principle 2.1 to respect terms with "cultural and religious significance". 
>- What is the basis of your judgement here ?
>- Are you recommending that ICANN should have no such respect and gleefully accept highly
>offensive names in the spirit of "neutrality" ? 
>  
>
I am saying the ICANN opens itself up to an enormous can of poisonous 
worms by trying to regulate in this area. There is no reason to believe 
that national law is inadequate to regulate in this area and that a new 
set of global rules must be created. (A set of global rules that exist 
entirely outside of legal due process and concerns about fundamental 
freedoms). ICANN becomes the tool of national governments and their 
individual policy objectives by deciding that it will regulate which 
ideas can be expressed in a tld and by whom. ICANN's only hope of 
remaining above the fray is to maintain a policy of neutrality and stick 
to its technical mission. Sure, many national governments would love for 
ICANN to do the censoring for them at a global level through "policy". 
But why should ICANN make itself available for being drawn into these 
kind of policy conflicts? Why is national law inadequate? Where is the 
need for creating new global standard for morality and sensitivity?

>4. The group debated this issue widely. 
>- Why do you now seek to change it ?
>I agree it should not be seen as a technical issue. Lets just agree to move it elsewhere. 
>  
>
Okay, we agree this doesn't belong here, but I also argue that it 
doesn't belong in our recommendations at all. How can creating a "public 
opposition" process lead to measurable, objective and pre-defined 
criteria? A public opposition process will make it impossible for 
controversial ideas to be included in a tld, since there are always 
significant objections to controversial ideas, by their definition. The 
public opposition process conflicts strongly with our first principle, 
"new gtlds must be introduced in an orderly, timely and predictable 
way." How to predict the reaction from all corners of the world? Indeed 
someone can be found somewhere to object to every idea, so this "public 
opposition" process is really not helpful. It also conflicts with 
recommendation 9, "there must be a clear and pre-published application 
process using objective and measurable criteria." A "public opposition" 
allows for subjective views and immeasurable criteria to prevent an 
application from going forward. It is impossible to reconcile a "public 
opposition" period with "objective and measurable criteria" and the 
current draft proposal does not deal with this.

>5. Your desire to be objective and evaluate just the technical is admirable. The group I
>believe would like this too but recognised that like it or not there arenames that will
>cause offence and lead to significant political objection. The group's aspiration was to
>attempt to set up a process to prevent that. If you wish to change this aspiration, we need
>to hear a better argument.  
>- Is neutrality achieved by allowing TLDs that will offend religions, countries and ethnic
>groups? 
>(PS I thoroughly recommend the book "The God Delusion" by Richard Dawkins. Such literature
>is probably a better way of attacking belief structures than doing so via domain names).
>- What exactly does "keep the core neutral mean ?" 
>
>  
>
Well, we do not wish to attack belief structures. Quite the contrary, we 
want to keep ICANN clear from having to take sides between differing 
belief structures. We are trying to keep the Internet core free from 
that level of meddling. No one is proposing anarchy. We are asking that 
the technical function of the Internet remain divorced from national 
policy objectives, that ICANN refrain from taking sides on differences 
about morality, that ICANN not circumvent national law and instead allow 
for competing views of religion and culture to regulated by national 
laws resulting from democratic processes. So when we say "keep the core 
neutral", we are asking for ICANN to stick to its technical mission, 
rather than become a regulator of human behavior that must choose 
between competing standards. Let's keep the national, regional, 
religious, moral, cultural, etc. policy conflicts out of domain name 
policy. Our existing draft policy invites these conflicts and even tries 
to solve them. We should exercise restraint on the urge to regulate 
behavior we don't like, and instead keep the core neutral.

Thank you,
Robin