Comments on the ICANN Proposed Final Version of the Applicant Guidebook

[Brenden Kuerbis]

I would support NCUC and NCSG endorsing this statement.


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Brenden Kuerbis
Internet Governance Project
http://internetgovernance.org


On Fri, Dec 10, 2010 at 11:49 AM, Nicolas Adam <nickolas.adam at gmail.com>wrote:

> I certainly agree.
> Nicolas
>
>
> On 12/10/2010 11:33 AM, Avri Doria wrote:
>
>> 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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