new gtld objections based on morality and public order

[Konstantinos Komaitis]

Dear Robin and all,

I think that Susan¹s fears are justifiable and it is good to see someone
actually mentioning these issues. Morality and public order is very
subjective and ICANN needs to realize that this proposal will once again
generated the same problems of subjective interpretation that has happened
during the drafting of the convention on Human Rights. These were different
times of course however, currently we can not proceed as such without a
clear examination of the issues that have to be dealt. Governments and in
particular with their ccTLDs exercise a clear right of sovereignty and thus
the whole plan instead of working as a catalyst for the unification of the
DNS might actually have the diverse effect. At the consultation rounds for
the IGF, China already expressed its problem over ICANN and the US and this
plan might contribute towards reaching decisions that cannot be changed. I
would be happy to work with someone towards promoting a more inclusive and
subjective proposal.

Konstantinos


On 03/03/2009 17:55, "Robin Gross" <robin at IPJUSTICE.ORG> wrote:

> Susan Crawford's statement from the board below during the June meeting was
> very helpful in trying to come to a few narrow principles to guide new gtlds
> objections based on morality and public order.  Let's craft a statement to
> help guide the board for the public forum this week.
> 
> Any thoughts?
> 
> Thanks,
> Robin
> 
> 
>  
>  >>SUSAN CRAWFORD:   Thank you, Mr. Chairman.
>  
>  I have mixed feelings on this day.  I have long supported the entry of new
> gTLDs into the root.  It has seemed to me that it¹s inappropriate for ICANN to
> use its monopoly position over giving advice about the existence of new TLDs
> to create artificial scarcity in TLDs, where there is no natural scarcity, in
> my view.
>  
>  And that has led to a great deal of pent-up demand for the creation of new
> TLDs for various reasons, for communities, for new identities, all over the
> world.
>  
>  And in particular, it is urgent that we create IDN gTLDs for the many
> language communities around the world that would prefer to have those.
>  
>  The question presented to the board today is a little strange.
>  
>  What we¹re being asked to respond to is whether the recommendations, the
> policy recommendations from the GNSO are implementable.  And then staff will
> go on, and if we decide they are, theoretically, implementable, will draft the
> implementation guidelines for the recommendations made by the GNSO council.
>  
>  There is a lot of important effort to go into those implementation
> details.  And I am signing up to these recommendations on the condition that
> the implementation work will proceed as planned, and that the board and the
> community will have an opportunity to comment in detail on that implementation
> work.
>  
>  In particular, I want to applaud and underline what Wendy Seltzer just said
> about the morality and public order recommendation, recommendation number 6.
>  Way back when ICANN was formed, that original MOU, which we¹re now talking
> about as the JPA, talked of transitioning the management of the Domain Name
> System to the private sector.
>  
>  And the idea was to figure out whether the private sector had the capability
> and resources to assume the important responsibilities related to the
> technical management of the DNS.  So that was the question.
>  
>  And so the creation of ICANN, and the question before all of us, was whether
> this entity would be a good vessel for allowing the private sector to take the
> lead in the management of the Domain Name System.
>  
>  And, in fact, the white paper in 1998 said that while international
> organizations may provide specific expertise or act as advisors to the new
> corporation, the U.S. continues to believe, as do most commenters, that
> neither national governments acting as sovereigns nor intergovernmental
> organizations acting as representatives of governments should participate in
> management of Internet names and addresses.
>  
>  Of course, national governments now have, and will continue to have,
> authority to manage or establish policy for their own ccTLDs.
>  
>  This wasn¹t done out of enthusiasm for the free market alone.  The idea was
> also to avoid having sovereigns use the Domain Name System for their own
> content, control, desires.  To avoid having the Domain Name System used as a
> choke point for content.
>  
>  Recommendation 6, which is the morality and public order recommendation,
> represents quite a sea change in this approach, because the recommendation is
> that strings must not be contrary to generally acceptable legal norms relating
> to morality and public order that are recognized under international
> principles of law.  That¹s the language of the recommendation.
>  
>  Now, if this is broadly implemented, this recommendation would allow for any
> government to effectively veto a string that made it uncomfortable.
>  
>  Having a government veto strings is not allowing the private sector to
> lead.  It¹s allowing sovereigns to censor.
>  
>  Particularly in the absence of straightforward clear limits on what morality
> and public order means, people will be unwilling to propose even controversial
> strings and we¹ll end up with a plain vanilla list of TLDs.
>  
>  So I am unhappy about this recommendation.  I am willing to vote for it on
> the strength of the board¹s discussion and the staff¹s undertakings that the
> standards for this recommendation will be narrowly stated.
>  
>  And on my expectation that the board and the community will have an
> opportunity to review and approve, or not, the details of those standards.
>  
>  We do have some global norms of morality and public policy.  They are very
> few.  One of them is incitement to violent, lawless action.  Nobody wants that
> around the world.
>  
>  A second might be incitement to or promotion of discrimination based on race,
> color, gender, ethnicity, religion, or national origin.
>  
>  And the third might be incitement to or promotion of child pornography or
> other sexual abuse of children.
>  
>  Otherwise, the question of morality and public order varies dramatically
> around the world.  It¹s a diverse, complicated world out there.  And it may
> not be ‹ it should not be possible to state that there is a single standard of
> morality and public order around the world.
>  
>  So I am asking that staff come back with an express standard that¹s
> constrained to stated norms, like the three I just listed, found and expressly
> in their national treaties.  We need clear lines of adjudicatio

-- 
Dr. Konstantinos Komaitis,
Lecturer in Law,
GigaNet Membership Chair,
University of Strathclyde,
The Lord Hope Building,
141 St. James Road,
Glasgow, G4 0LT,
UK
tel: +44 (0)141 548 4306
email: k.komaitis at strath.ac.uk 

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