objections based on morality and public order

[Konstantinos Komaitis]

Dear Robin and all,

thanks for this email and your comments on the objections based on morality and public order. Even though I totally agree with your points, I would like to take this issue outside the legislative framework of the US and point out that the ICANN approach on this particular issue contradicts legislative approaches of other jurisdictions and international institutions. At this point I also need the feel to add that ICANN will have to proceed to content regulation, since I find it impossible, as per Milton's previous email, for a simple URL name to fit in any of these categories.

Category 1:
This is a very general term. What does ICANN mean by 'violent lawless action'? For instance, in May 2005, the Council of Europe adopted a new Convention on the Prevention of Terrorism which requires State parties to criminalise ‘public provocation to commit a terrorist offense’.  ‘Public provocation’ means ‘the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed’. This provision was the product of a special report that was drafted by experts on the field having considered both apologie du terrorisme’ and ‘incitement to terrorism’. Apologie was interpreted in the sense of the public expression of praise, support, or justification of terrorism. At the same time, the drafters were aware that this legislative approach might have freedom of expression implications, but argued that it could still constitute a legitimate restriction under human rights law.

Examples of indirect incitement or apologie that can be characterised as ‘public provocation’ include ‘presenting a terrorist offence as necessary and justified’, and ‘the dissemination of messages praising the perpetrator of an attack, the denigration of victims, calls for funding of terrorist organisations or other similar behaviour’. Such conduct must be accompanied by the specific intent to incite a terrorist offence. It must also cause a credible danger that an offence might be committed, which may depend on ‘the nature of the author and of the addressee of the message, as well as the context’. Basically and especially in relation to the freedom of expression issue, there needs to be credible evidence that a conduct constitutes public provocation. I cannot really understand how it is possible for a single gTLD to fit in this category.

Category 2
Please check Recommendation R (97) 20 of the Council of Europe and especially principle 3. ICANN has to clarify a variety of issues, such as 'objective criteria' as well as the issue of 'judicial control'. The Recommendation can be found at: https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=568168&SecMode=1&DocId=582600&Usage=2

Category 3
Fully agree here with your comments Robin.


I think that we need to put pressure on ICANN to resolve these issues - they seem to be stepping upon dangerous territory without taking into consideration long standing principles of international or national law. They are given carte blanche to determine and make decisions on an issue of vital importance.


With appreciation,

Konstantinos


________________________________________
From: Non-Commercial User Constituency [NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Robin Gross [robin at IPJUSTICE.ORG]
Sent: Thursday, November 06, 2008 1:55 PM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: objections based on morality and public order

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





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Robin Gross, Executive Director
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