Comments on the ICANN Proposed Final Version of the Applicant Guidebook

[Mary Wong]

I think it is fine for NCUC - and perhaps NCSG if there is agreement -
to endorse the statement, which contains some workable concrete
proposals.
 
I would suggest, however, some tweaking (on the NCUC/NCSG side) of the
language surrounding the Board's "direct" role versus the DRSP. This is
something the Board wants to be absolutely certain and clear about (as
evidenced by this week's discussions).
 
If folks are okay with my suggestion, I am happy to craft a short
endorsement statement adding the clarifying language on that point, as
our statement.
 
Cheers
Mary

 
 
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584>>> 


From: Avri Doria <avri at LTU.SE>
To:<NCSG-NCUC-DISCUSS at listserv.syr.edu>
Date: 12/10/2010 11:40 AM
Subject: Re: Comments on the ICANN Proposed Final Version of the
Applicant Guidebook
Milton,

Thanks for forwarding this on.

Does the NCSG, and/or the NCUC, and/or the NPOC, and/or the Consumer
Constituency/Interest-group wish to endorse it?

a.

On 10 Dec 2010, at 10:59, Milton L Mueller wrote:

> The IGF Dynamic Coalition on Freedom of Expression has submitted
these comments to ICANN regarding the free expression issues raised by
the so-called “limited public interest” objection.
>  
> From: Ben Wagner [mailto:b at nwagner.org] 
> Sent: Friday, December 10, 2010 10:27 AM
> To: 5gtld-procedures at icann.org
> Subject: Comments on the ICANN Proposed Final Version of the
Applicant Guidebook
>  
> Comments on the ICANN Proposed Final Version of the Applicant
Guidebook
> 
> As the multistakeholder Dynamic Coalition for Freedom of Expression ,
developed from the Internet Governance Forum, we wish to comment on
Section 3.4.3 of the Proposed Final Version of the Applicant Guidebook.
> 
> Domain names are a form of expression on the Internet and have been
recognized as such by various court jurisdictions.[1] Moreover,
censorship or suspension of domain names is often triggered by the
content on websites, therefore we anticipate a risk that objections to
new top level domains may often be motivated by an attempt to suppress
or restrict certain forms of controversial or diverse expression. 
>  
> Freedom of expression is well recognized as a fundamental human
right. The leading instruments are the 1948 UN Declaration of Human
Rights and the International Covenant on Civil and Political
Rights(ICCRP). Article 19 of the UDHR, which is considered customary
international laws and applies to all countries states:
> 
> Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and
regardless of frontiers.
> 
> Under international standards as set by the UN Human Rights
Committee, any limitations on freedom of expression must satisfy that
the interference is provided in law and is clear and accessible, the
interference must pursue a legitimate aim as set out under Article 19(3)
of the ICCPR, and the restrictions must be necessary and
proportionate.[2]
> 
> Objecting to a TLD string on the grounds of its meaning, or the
content that one expects to be associated with the domain, constitutes a
form of prior restraint on expression. Because the scope of ICANN's
jurisdiction over the domain name system is global, ICANN's TLD
objection processes constitute a precedent-setting form of global
content regulation. Given a well-recognized international right to
freedom of expression, the criteria used to suppress TLDs must be very
narrowly circumscribed and the authority must be used sparingly. Only
those TLD strings that clearly violate well-established international
laws should be blocked under this provision. 
> 
> Section 3.4.3, currently titled "Limited Public Interest Objection,"
allow various parties to object to the creation of a new top level
domain because "the applied-for gTLD string is contrary to general
principles of international law for morality and public order."
> 
> We believe that the current version of the AG does not sufficiently
respect legitimate free expression rights. We encourage ICANN's board
and staff to make appropriate modifications in the final applicant
guidebook. We have the following concerns and propose a number of
specific modifications.
> 
> 
> 1.         The title should be changed to "Objections based on
general principles of international law." The term "public interest" is
too broad and ill-defined, and lacks any firm basis in international
law. Labeling the class of objection "public interest" encourages
parties to object to forms of expression that they dislike or disapprove
of, regardless of their status under defined international law. We note
that a cross-community working group that included governments (GAC),
business/civil society domain name users and suppliers (GNSO) and
internet users (ALAC) decisively rejected the term "public interest" as
a label for this category of objection precisely for this reason. We ask
ICANN staff to re-label this class of objection.
> 
> 2.         We note that numerous governments objected to inclusion of
the terms "morality and public order" as the basis for these objections.
They noted, correctly, that there is no global standard for morality and
public order, as different cultures and communities have radically
different standards. Here again, established international legal
agreements are the more appropriate standard to cite rather than
"morality and public order." We ask that the term "morality and public
order" be stricken from the text. E.g., on p. 3-18 staff should replace
"contrary to generally accepted legal norms relating to morality and
public order that are recognized under principles of international law"
with "contrary to generally accepted principles of international law." 
> 
> 3.         The decision to censor a top level domain should not be
outsourced to a private "dispute resolution service provider" as
proposed in the Module 3 attachment. While we recognize the need for
expert advice, we believe that there should be clear lines of
accountability for any decision to suppress expression and that the
ICANN board should make the decision directly. We are concerned about
the long term implications of outsourcing such decisions to private
DRSPs, who will tend to view dispute resolution as a revenue stream and
thus develop an incentive to encourage and facilitate objections. We are
also concerned about the lack of accountability inherent in the use of a
revolving panel of experts selected by a subcontractor of ICANN. If the
decisions are consistently wrong, what recourse do applicants or free
speech advocates have? 
> 
> 4.         Should there be a DRSP, we believe that it is entirely
inappropriate for the International Chamber of Commerce (ICC) to serve
as the authority selecting experts for disputes involving basic human
rights such as freedom of expression. The ICC's International Centre for
Expertise is a money-making service offered by a business advocacy
group. It has no specific expertise or track record on freedom of
expression issues. We object strongly to the prospect of the human right
to communicate being adjudicated by this group. Various alternatives to
the ICC were suggested during the cross-community working group
deliberations. 
> 
> 5.         We are also deeply concerned about the "Independent
Objector" proposal. The Independent Objector seems to allow objections
to be made on an anonymous and unaccountable basis. We believe that the
burden of proof should always be on objectors to prove that a proposed
top level domain name is illegal; the default should be to allow diverse
and even controversial forms of expression. The existence of an
Independent Objector seems to encourage parties to make objections
secretly and at no cost, which reverses the proper burden of proof. 
>  
> 
> [1]  In the U.S., see The Taubman Company v. Webfeats, et al. 319
F.3d 770 (6th Cir., February 7, 2003), which stated "The rooftops of our
past have evolved into the internet domain names of our present.  We
find that the domain name is a type of public expression, no different
in scope than a billboard or a pulpit, and Mishkoff has a First
Amendment right to express his opinion about Taubman, and as long as his
speech is not commercially misleading, the Lanham Act cannot be summoned
to prevent it." In Canada, (January 2001), a British Columbia court
stated that "when a Web site is used for expression in a labour
relations dispute, as opposed to commercial competition, there is... a
reasonable balance that must be struck between the legitimate protection
of a party's intellectual property and... [freedom] of expression." See
also Article 19's analysis of the relationship between domain name
regulations and the International Covenant on Civil and Political
Rights.http://www.article19.org/pdfs/analysis/kazakhstan-s-domain-names.pdf
>  
> [2] Para.3 of General comment 10 on Article 19 of the ICCPR., Human
Rights Committee, (Nineteenth session, 1983), Compilation of General
Comments and General Recommendations, Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994).
>  
>  
> The Dynamic Coalition on Freedom of Expression and Freedom of the
Media on the Internet, Internet Governance Forum.
>  
> http://www.intgovforum.org/cms/dynamic-coalitions/75-foeonline



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