IP Justice Comments on Morality & Public Order (MAPO) Objections in DAG4

[Robin Gross]

FYI:  IP Justice Comments on DAG4 Morality & Public Order (MAPO)  
Objections

RE: Remove MAPO Objections; Allow Nations to deal with MAPO and ICANN  
to get on with new gtlds + protect free speech as a bonus

The DAG4 so-called Morality and Public Order (MAPO) objections to new  
gtlds should be removed as illegitimate, outside ICANN's scope,  
likely to expose ICANN to constant litigation, and chilling to  
freedom of expression on the Internet.

As explained in Brussels by the US Representative to GAC: there  
simply are no internationally recognized standards to legislate  
"morality and public order". For ICANN to attempt to create any MAPO  
standards is clearly outside of ICANN's mandate and its authority.  
ICANN risks getting tangled-up in ugly political battles by trying to  
legislate MAPO standards and it undermines ICANN's legitimacy to  
govern at all by trying to legislate MAPO.

The proposal in DAGv4 for dealing with morality and public order is  
"one-size-fits-all" in which anyone can block a new gltd because  
their subjective sense of morality is offended. Obviously this is  
practically unworkable and terribly over-restrictive. It does not  
make sense for ICANN to block the creation of a top-level domain  
because some countries chose not to access the content. Issues of  
morality and public order are matters of national law. National  
legislatures and national courts are the appropriate place to  
adjudicate what ideas may be expressed and by whom. Neither ICANN,  
nor out-sourced dispute resolution businesses (such as the  
International Chamber of Commerce) have any right to prevent people  
and countries from making their own choices about what information  
they wish to access. If a registration violates a law that applies to  
that registration, it is easily prohibited on legal grounds. Creating  
an additional level of MAPO-based objections only invites  
arbitrariness, subjectivity and global censorship.

The GNSO Recommendation F provides guidance on the GNSO's mandate for  
new gtlds: "The string evaluation process must not infringe the  
applicant's freedom of expression rights that are protected under  
internationally recognized principles of law."

ICANN has an obligation to respect the free expression rights of  
Internet users, which are nearly universally guaranteed through  
various national constitutions and international treaties. In  
particular, Article 19 of the Universal Declaration of Human Rights  
speaks directly to ICANN on this issue: "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."

Surely ICANN does not contend that the free expression guarantees  
provided to individuals from national constitutions and international  
treaties does not apply to ICANN. Surely ICANN would not suggest its  
governance model exempts it from providing previously guaranteed  
protections for civil liberties. Yet that is exactly what is proposed  
in DAG4 and must be removed for the next version.

It also worth reminding that ICANN's Non-Commercial Users  
Constituency (NCUC) and its At-Large Advisory Community have both  
lodged objections to the MAPO policy since it was first proposed.  
NCUC did not vote in favor of the MAPO measures when they were before  
the GNSO Council (see NCUC's dissenting opinion below) and the  
opposition from the non-commercial stakeholders to MAPO-based  
objections continues to remain strong.

ICANN should uphold freedom of expression values and remove the  
illegitimate MAPO-based objections to new gtlds so these concerns can  
be adjudicated in the appropriate legitimate fora at the national  
level. The sooner ICANN realizes its only practical course of action  
is throw MAPO out, the sooner it can get on with introducing new gtlds.

Respectfully submitted,
Robin Gross
IP Justice

____________________________________________________________

From:
   http://ipjustice.org/ICANN/drafts/rec6ncuc.html
See also:
  http://ipjustice.org/wp/campaigns/icann/gtlds/

STATEMENT OF DISSENT ON RECOMMENDATION #6 OF
GNSO’S NEW GTLD REPORT FROM
THE NON-COMMERCIAL USERS CONSTITUENCY (NCUC)
20 July 2007
(.pdf file)


NCUC supports most of the recommendations in the GNSO’s Final Report,  
but Recommendation #6 is one we cannot support.

We oppose Recommendation #6 for the following reasons:
1) It will completely undermine ICANN’s efforts to make the gTLD  
application process predictable, and instead make the evaluation  
process arbitrary, subjective and political;
2) It will have the effect of suppressing free and diverse expression;
3) It exposes ICANN to litigation risks;
4) It takes ICANN too far away from its technical coordination  
mission and into areas of legislating morality and public order.

We also believe that the objective of Recommendation #6 is unclear,  
in that much of its desirable substance is already covered by  
Recommendation #3. At a minimum, we believe that the words “relating  
to morality and public order” must be struck from the recommendation.

1)  Predictability, Transparency and Objectivity

Recommendation #6 poses severe implementation problems. It makes it  
impossible to achieve the GNSO’s goals of predictable and transparent  
evaluation criteria for new gTLDs.

Principle 1 of the New gTLD Report states that the evaluation process  
must be “predictable,” and Recommendation #1 states that the  
evaluation criteria must be transparent, predictable, and fully  
available to applicants prior to their application.

NCUC strongly supports those guidelines. But no gTLD applicant can  
possibly know in advance what people or governments in a far away  
land will object to as “immoral” or contrary to “public order.” When  
applications are challenged on these grounds, applicants cannot  
possibly know what decision an expert panel – which will be assembled  
on an ad hoc basis with no precedent to draw on – will make about it.

Decisions by expert panels on “morality and public order” must be  
subjective and arbitrary, because there is no settled and well-  
established international law regarding the relationship between TLD  
strings and morality and public order. There is no single “community  
standard” of morality that ICANN can apply to all applicants in every  
corner of the globe. What is considered “immoral” in Teheran may be  
easily accepted in Los Angeles or Stockholm; what is considered a  
threat to “public order” in China and Russia may not be in Brazil and  
Qatar.

2)  Suppression of expression of controversial views

gTLD applicants will respond to the uncertainty inherent in a vague  
“morality and public order” standard and lack of clear standards by  
suppressing and avoiding any ideas that might generate controversy.  
Applicants will have to invest sizable sums of money to develop a  
gTLD application and see it through the ICANN process. Most of them  
will avoid risking a challenge under Recommendation #6. In other  
words, the presence of Recommendation #6 will result in self-  
censorship by most applicants.

That policy would strip citizens everywhere of their rights to  
express controversial ideas because someone else finds them  
offensive. This policy recommendation ignores international and  
national laws, in particular freedom of expression guarantees that  
permit the expression of “immoral” or otherwise controversial speech  
on the Internet.

3)  Risk of litigation

Some people in the ICANN community are under the mistaken impression  
that suppressing controversial gTLDs will protect it from litigation.  
Nothing could be further from the truth. By introducing subjective  
and culturally divisive standards into the evaluation process  
Recommendation #6 will increase the likelihood of litigation.

ICANN operates under authority from the US Commerce Department. It is  
undisputed that the US Commerce Department is prohibited from  
censoring the expression of US citizens in the manner proposed by  
Recommendation #6. The US Government cannot “contract away” the  
constitutional protections of its citizens to ICANN any more than it  
can engage in the censorship itself.

Adoption of Recommendation #6 invites litigation against ICANN to  
determine whether its censorship policy is compatible with the US  
First Amendment. An ICANN decision to suppress a gTLD string that  
would be permitted under US law could and probably would lead to  
legal challenges to the decision as a form of US Government action.

If ICANN left the adjudication of legal rights up to courts, it could  
avoid the legal risk and legal liability that this policy of  
censorship brings upon it.

4)  ICANN’s mission and core values

Recommendation #6 exceeds the scope of ICANN’s technical mission. It  
asks ICANN to create rules and adjudicate disputes about what is  
permissible expression. It enables it to censor expression in domain  
names that would be lawful in some countries. It would require ICANN  
and “expert panels” to make decisions about permitting top-level  
domain names based on arbitrary “morality” judgments and other  
subjective criteria. Under Recommendation #6, ICANN will evaluate  
domain names based on ideas about “morality and public order” --  
concepts for which there are varying interpretations, in both law and  
culture, in various parts of the world. Recommendation #6 risks  
turning ICANN into the arbiter of “morality” and “appropriate” public  
policy through global rules.

This new role for ICANN conflicts with its intended narrow technical  
mission, as embodied in its mission and core values. ICANN holds no  
legitimate authority to regulate in this entirely non-technical area  
and adjudicate the legal rights of others. This recommendation takes  
the adjudication of people’s rights to use domain names out of the  
hands of democratically elected representatives and into the hands of  
“expert panels” or ICANN staff and board with no public accountability.

Besides exceeding the scope of ICANN’s authority, Recommendation #6  
seems unsure of its objective. It mandates “morality and public  
order” in domain names, but then lists, as examples of the type of  
rights to protect, the WTO TRIPS Agreement and all 24 World  
Intellectual Property (WIPO) Treaties, which deal with economic and  
trade rights, and have little to do with “morality and public order”.  
Protection for intellectual property rights was fully covered in  
Recommendation #3, and no explanation has been provided as to why  
intellectual property rights would be listed again in a  
recommendation on “morality and public order”, an entirely separate  
concept.

In conclusion Recommendation #6 exceeds ICANN’s authority, ignores  
Internet users’ free expression rights, and its adoption would impose  
an enormous burden on and liability for ICANN. It should not be  
adopted by the Board of Directors in the final policy decision for  
new gtlds.


------------
From:
http://ipjustice.org/ICANN/drafts/PDP-Dec05-NCUC-CONST-STMT-JUNE2007.htm

NCUC Impact Statement on New GTLD Recommendations 12 June 2007

[...]

Recommendation 6

Again, we welcome the amendment to include recognition of rights to  
Freedom of Expression.[22] It is quite clear that this applies to  
single words and to strings, see Taubman v. Webfeats 319 F.3d 770  
(6th Circuit 2003) ("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 [defendant] has a First Amendment right to express  
his opinion about [plaintiff], as long as his speech is not  
commercially misleading, the Lanham Act cannot be summoned to prevent  
it).

We welcome the deletion of GAC Public Policy principle 2.1 from the  
GNSO’s recommendations. We objected in the strongest possible terms  
to the vague standard of “sensitivities,” which would subject all to  
the most restrictive views and had no place in the international  
legal order. GAC quoted selectively from the preamble to the 1948  
Universal Declaration of Human Rights (UDHR) without reference to the  
enumerated specific right to Freedom of Expression in Article 19.[23]  
The UDHR Art. 29(2) provides the only permitted limits.[24]  
Similarly, the European Convention on Human Rights (ECHR) mandates  
Freedom of Expression should only be subject to limits prescribed by  
law[25] and necessary in a democratic society for one of the  
enumerated purposes, see Article 10[26] which also applies to  
commercial expression.[27] Strict scrutiny is applied to any attempt  
to limit the free expression of an idea.[28]

This Recommendation is borrowed from trade mark law[29] and the  
French concept of ‘ordre public.’[30] This is now subject to Article  
10 ECHR[31] and Freedom of Expression and the modern standard is  
high. [32] While a few nations limit Free Expression by laws  
preventing hate speech, and incitement to violence, lowering the  
threshold to ‘sensitivities’ is tantamount to mandating political  
correctness,[33] forced hegemony, and is dangerous and to be resisted  
in every context. It does not matter how laudable the public policy  
objective, ICANN should remain content neutral.[34]

We oppose any string criteria based on morality and public order. The  
context is not exclusively commercial speech so trade mark law is not  
an analogy as registration of marks on government Registers involves  
an element of state sanction[35] that is not true of the DNS (though  
many seek it).[36] There is no consensus on the regulation of  
morality in non-commercial speech in international law. We refer to  
the quote from Taubman (above)—the TLDs are billboards. Democracies  
do not have laws requiring people to speak or behave morally. Some  
nations do have such rules – undemocratic theocracies mainly.

ICANN should stick to its technical remit, which it risks grossly  
exceeding here. It should defer to applicable national laws on  
matters of public order and morality. Applicants should comply with  
the content laws in the countries in which they operate.[37] The only  
real issue is, in any event, public order which is already served by  
nations’ own laws on obscenity, fighting words, hate speech and  
incitement.

Please be aware that criticism, satire, parody of others and their  
beliefs are a fundamental tenant of Freedom of Expression[38] which  
includes the right to offend. ICANN must ensure this in practice and  
mere references to Treaties and Conventions do not go far enough.





IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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