[ncsg-policy] RE: Re: Comments on the ICANN Proposed Final Version of the Applicant Guidebook

[Avri Doria]

Thanks Debbie.  Just did not want to leave anyone out in my request.

a.

On 10 Dec 2010, at 12:36, <HughesDeb at usa.redcross.org> <HughesDeb at usa.redcross.org> wrote:

> <<NPOC Comments on AGB.pdf>> Avri, 
> 
> Because of timing, I will not be able to get approval from NPOC to
> endorse these comments.  We don't meet again until January.  However,
> NPOC did submit its comments on December 1st.  Please see attached.
> Thanks, 
> Debbie
> 
> 
> -----Original Message-----
> From: Avri Doria [mailto:avri at ltu.se] 
> Sent: Friday, December 10, 2010 11:33 AM
> To: NCSG Members List
> Cc: NCSG-Policy
> Subject: [ncsg-policy] 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
> 
> <NPOC Comments on AGB.pdf>
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