objections based on morality and public order

[Robin Gross]

Below are the updated comments that pull together a number of
comments from myself and others that focus exclusively on Objections
based on Morality and Public Order.  I'll send more comments next
that focus on the objections based on "legal rights of others".

In the GNSO meetings last Sat-Sun here on this topic, ICANN Morality
Tzar Kurt Pritz told the GSNO that he surveyed "every jurisdiction in
the world" and has come up with a list of categories of expression to
ban based on morality and public order because such bans are
"universally agreed principles of international law".  And the 29
Oct. paper additionally suggests that "panelists be provided
significant discretion to find that other categories" should also be
banned.

Morality Tzar Pritz is incorrect in his analysis and conclusions in a
number of important ways, and it is clear the objection is content
regulation of websites, not merely URLs.

The 3 categories of speech to auto-ban based on "morality and public
order" are:
  1.  Incitement to violent lawless action.
  2.  Incitement to or promotion of discrimination based upon race,
color, gender, ethnicity, religion or national origin.
  3.  Incitement to or promotion of child pornography or other sexual
abuse of children.

I.  Incitement to Violent Lawless Action

US rule on this category: The right to free expression does "not
permit a State to forbid or proscribe advocacy of the use of force or
of law violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or
produce such action." Brandenburg v. Ohio (US Supreme Court 1969)

So Pritz's recommendation is missing 2 parts of the test under US law:
	- no IMMEDIATE violence is required for ICANN to ban the speech;
	- no LIKELINESS of actually producing any violence for ICANN to ban
the speech.
         (Technically, it is a 3-part test in the US because the
speaker must INTEND to produce the imminent lawless violence.)

Further, Pritz's paper shockingly changes the AND to an OR in his
description of the US test:
Morality Tzar Pritz: "This limit should be construed as applying only
to violent lawless action that is imminent or likely to result from
the incitement." (p. 4 of 29 Oct. paper)

So instead of this being a 2-part test as US law requires, the speech
will be auto-banned under if it meets either prong of the test - big
difference.  I don't know who or how much ICANN paid to do this legal
research, but I'd give this analysis an "F"-grade in the law school
classes I teach.


II.  Incitement to or promotion of discrimination based upon race,
color, gender, ethnicity, religion or national origin.

Category 2 (banning "meanness") is NOT an accepted principle of
international law as Pritz claims and is in clear contrast to US law
for violating freedom of expression.

This category of prohibited speech is the "European Standard" for
limiting free expression, but is certainly not universally accepted
international law as claimed.  This standard would be illegal policy
in the US, the jurisdiction in which ICANN resides.

Principle G of GSNO's Recommendations explicitly state "The string
evaluation process must not infringe the Applicant's freedom of
expression rights", but that has fallen off of the radar screen of
ICANN.

The Draft Implementation Guidelines also eliminate the right of
applicants to challenge any ICANN decision or related dispute
proceedings in a national court (unlike under the UDRP).  So
applicants would have no protection at all for their free expression
rights and national courts would have no means of protecting their
citizens from an abuse in an ICANN proceeding about a domain name.
This point was also NOT in the GNSO's recommendations and is
something that staff pulled out of a hat (as part of its bottom-up
process) presumably in an attempt to protect itself from being sued.


III.   Incitement to or promotion of child pornography or other
sexual abuse of children.

It is well-settled principle of international law that child
pornography illegal.  No argument about that.  But "incitement or
promotion" to engage in child porn is different than the porn
itself.  So there is conflation between the law on child porn itself
and the law on statements about child porn.

Again it appears ICANN is attempting to regulate the content of
websites, not URLs, since a domain name (2-6 letter string) cannot be
child porn or sexual abuse of children.


IV. Other Concerns on Morality and Public Order Objections

- STANDING: The issue of who has standing to object is not
determined.   The papers say it could be either i) only governments
who have standing to object, or ii) anyone in the world would have
standing to object.  Morality Tzar Pritz told me when I asked him
point blank that he is pushing for the second option - anyone in the
world can object based on a perceived offense to their own sense of
morality and public order.

-  Objections based on the Morality and Public Order objection will
be determined by the International Chamber of Commerce, so there is
concern that non-commercial interests won't get a fair shake from
ICC, which represents and advocates on behalf the world's largest
businesses.

-  Dispute resolution panelists can choose (without the request of
parties) to make their proceedings and finding confidential and
sealed from the public.   What about transparency and accountability?

- Specific language on eliminating right to appeal to national court.
   DAG Term 6 of the terms and conditions states:
"APPLICANT AGREES NOT TO CHALLENGE, IN COURT OR IN ANY OTHER JUDICIAL
FORA, ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE
APPLICATION, AND IRREVOCABLY WAIVES ANY RIGHT TO SUE OR PROCEED ON
THE BASIS OF ANY OTHER LEGAL CLAIM AGAINST ICANN AND ICANN AFFILIATED
PARTIES WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES AND
ACCEPTS THAT APPLICANT'S NONENTITLEMENT TO PURSUE ANY RIGHTS,
REMEDIES, OR LEGAL CLAIMS AGAINST ICANN OR THE ICANN AFFILIATED
PARTIES WITH RESPECT TO THE APPLICATION SHALL MEAN THAT APPLICANT
WILL FOREGO ANY RECOVERY OF ANY APPLICATION FEES, MONIES INVESTED IN
BUSINESS INFRASTRUCTURE OR OTHER START-UP COSTS AND ANY AND ALL
PROFITS THAT APPLICANT MAY EXPECT TO REALIZE FROM THE OPERATION OF A
REGISTRY FOR THE TLD."

References:
   http://www.icann.org/en/topics/new-gtld-draft-rfp-24oct08-en.pdf
   http://www.icann.org/en/topics/new-gtld-program.htm
   http://icann.org/en/topics/new-gtld-morality-public-order-
draft-29oct08-en.pdf





IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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