Comments on the ICANN Proposed Final Version of the Applicant Guidebook

[Alex Gakuru]

great!

On 12/10/10, Beau Brendler <beaubrendler at earthlink.net> wrote:
> The "Consumer Constituency/Interest-group" doesn't yet really have a
> mechanism to endorse anything, so, in ad hoc fashion, I'll half-endorse it
> and if Alex agrees, it's a whole.
>
> Milton has, I believe, been working with Evan Leibovitch on this, so I am
> taking the liberty of cc'ing Evan, who in his new role as vice chair of
> ALAC, may be able to persuade them to endorse it as well
>
> Beau
>
>
> -----Original Message-----
>>From: Avri Doria <avri at LTU.SE>
>>Sent: Dec 10, 2010 11:33 AM
>>To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
>>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
>


-- 
regards,

Alex Gakuru
http://www.mwenyeji.com
Hosting, surprise yourself!