A few points on ICANN's new gTLD policy implementation plans

Mon Nov 3 15:50:24 CET 2008

Milton
You are 100% correct in your understanding on 'incitement' - the mere registration of a domain name will not constitute incitement for the purposes of criminal activity. From a legal point of view the definitional scope of 'incitement' means to "instigate, persuade, or move another to commit a crime" - so there need to be discussions taking place between two or more individuals to commit a certain crime. I cannot think of any TLD string that would be able to do that; however, if discussions that lead to a criminal action do take place through discussions on the website then this constitutes 'incitement'. So, I totally agree with you that what the policy is trying to do is to control content of  websites, which can potentially 'incite' and this of course opens a new can of warms really.

Konstantinos

Dr. Konstantinos Komaitis

Lecturer in IT&T Law, Panellist,
Chair Membership Committee,
Global Internet Governance Academic Network,
University of Strathclyde,
The Law School,
141 St James Road,
Glasgow G4 0LT.

tel:+44 (0)141 548 4306
fax:+44 (0)141 548 3639
email: k.komaitis at strath.ac.uk
http://www.law.strath.ac.uk/staff/bio_sharepoint.aspx?id=75

From: Non-Commercial User Constituency [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Milton L Mueller
Sent: 03 November 2008 06:49
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: A few points on ICANN's new gTLD policy implementation plans

Robin
Thanks so much for this summary. On the incitement issue, I understand and agree with your statement that it is not illegal under U.S. law; indeed I think your statement may be a little weak. My understanding of incitement tells me that it is literally impossible for a TLD string to "incite." Perhaps if there is a legal expert here they can tell me how ANY top level domain strong of 2 - 8 letters can be categorized as inciting immediate violence in a specific place at a specific time. Even ".killnow" would not necessarily incite - it might be a joke site for all we know. This is important because incitement is so specific that it shows that what the policy is really targeting is the CONTENT of web sites, not the names.
--MM

________________________________
From: Non-Commercial User Constituency [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Robin Gross
Sent: Sunday, November 02, 2008 11:00 AM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: [NCUC-DISCUSS] A few points on ICANN's new gTLD policy implementation plans

Greetings from Cairo,

A few key points on the discussion and newly released ICANN papers on Implementation of New gTLD Recommendations.

A.  On the Legal Rights of Others Objection:

ICANN lists 8 factors to consider in deciding whether to deny a domain name based on the alleged intellectual property rights of others.  The UDRP, international trademark law and anti-cyber-squatting laws all require consideration of "whether the applicant has a free expression right?"  ICANN's recommended 8 factors do not consider the applicant's freedom of expression rights in any way.  ICANN's recommendation is basically 8 factors that are 8 different versions of the same idea: has the objector ever had the trademark? or does the objector intend to apply for a trademark? Or any other IPR right the objector might have or want, like a copyright?  Etc.

So this recommendation for implementation departs from the UDRP and international law and it also ignores Principle G of the GNSO's Final Recommendations for New gTLDs:
"The string evaluation process must not infringe the Applicant's freedom of expression rights?"

Principle G was approved by both the GNSO and the ICANN Board of Directors for this process, so ICANN staff is departing from the clear direction of the GNSO and the Board of Directors and doing its own thing.  This problem needs to be fixed.

Further, ICANN recommends that objections under this category be decided by a SINGLE panelist, and specifically, an intellectual property rights expert.  Many of these cases lie in the tension between free expression and intellectual property, and asking an IPR expert to make the decision gives the IPR side an enormous advantage over the free expression interest.  This is not to say the panelist will intend to favor the IPR side, it is just that the perspective one holds depends on the shoes one has walked in; and the legal training and experience of representing large IPR holders gives an advantage to understanding (and sharing) that viewpoint over the other.

B.  On the Morality and Public Order Objection:

ICANN is leaning toward categorically banning 3 categories of expression, which Kurt Pritz wrongly claims (with respect to 1 category) is international law.  Pritz said he surveyed "every jurisdiction in the world" to come up with his list.

The 3 categories of expression to categorically ban 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.

Categories 1 and 3 (depending on interpretation) are legitimate reasons for banning expression under international law.

On Category 1:
In the US, "incitement to violent lawless action" is illegal ONLY if the violence is IMMEDIATE.  For example, it is perfectly lawful to say in year 2008: "In the year 2050, we should cut-off the right arm of politicians" because such a incitement does not lead to IMMEDIATE violence.  So we need further clarification from ICANN on this issue.

Category 2 is NOT an accepted principle of international law.  Banning "meanness" is in clear contrast to well-settled US law and in violation of an applicant's free expression rights (which is supposed to be protected by GNSO Principle G).  (This is the "European standard" for speech, but certainly not Universal around the world and is illegal policy in the US, the jurisdiction in  which ICANN resides).  So Kurt is flat wrong that this category is a "well-settled principle of international law".  I asked Kurt to provide the GNSO with the legal research he uncovered that came to the conclusion that this category is illegal in the US.  He said he would (but he has never followed-up with me in the past as promised), so may need more needling from us on this issue.

On Category 3.
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 a conflation between law on child porn itself with law on statements about child porn.

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

C.  "Community Objections"

Implementation recommendations for "communities" favor entrenched institutions at the expense of innovators and start-ups.  Still no definition of "community", so the community of "Internet users", and the community of "dog owners", and the community of "blondes", and the community of "anything you can imagine" is a "defined community" according to ICANN and will have standing if there is an institution to lodge the objection.

D.  Other Points:

1.  Even after the panel makes its decision to allow a domain name, the ICANN Board of Director will still vote to approve or deny the domain name.

2.  ICANN is spending $700,000 on a computer algorithm to help determine "confusingly similar" of a domain.  There is wide skepticism to this approach to begin with (since "confusion" is always context dependent), but the exhorbitant expense for this "help" adds insult to injury to domain name registrants who pay for this nonsense.

3.  I've been told that ICANN staff will receive a large cash bonus from ICANN for passing the implementation.  I don't know if this is true or what the details are, but it is worth looking into, since ICANN is supposed to bottom-up policy forum.

4.  The cost of applying for a new domain name keeps rising such that only the wealthiest of institutions can ever afford the process and actually obtain a domain name.  Sad - missed opportunity.
  a)  $100 fee to access the application system
  b)  $185,000 to apply for a domain name
  c)  $50,000 for Registry Services Review Fee
  d)  $TBD to file Objection to application (expect to be thousands of $$)
  e)  $TBD to file Response to Objection (fee due from applicant!)  (expect to be thousands of $$)
  f)  $TBD: the panelists may appoint "experts" to be paid for the parties equally (without the request of either party)

5.  Applicants are only given FIVE DAYS to file a Response to an objection.  If the Applicant can't come up with the THOUSANDS of dollars in 5 days to respond to an objection, the Response will be disregarded (and the applicant loses).

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

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<mailto:robin at ipjustice.org>

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