Some observations and recommendations on the Recommendation Number Six Cross-Working Group Report

[Paul Twomey <paul.twomey@xxxxxxxxxxxxxxx>]

I wish to congratulate all the members of the Recommendation Number Six 
Cross-Working Group on their work in producing this report.
The implication of issues falling within the broader arena of "morality 
and public order" has been a topic that has taken a lot of my attention 
throughout my participation in ICANN. They emerged during discussions of 
the first round of new gTLDs in 2001 when I was chair of the 
Governmental Advisory Committee. Of course these are issues I considered 
as President and CEO during the next rounds of new TLDs, particularly 
during the earlier days of the policy process now coming to a conclusion 
for a broad framework for new gTLDs.
These are important, but not easy topics. The members of the working 
group are to be congratulated on the process and the substantive way 
forward they have suggested.
I wish to make some observations and recommendations which I hope may 
further contribute to improving the proposed implementation plan for 
Recommendation Number Six as described in the Draft Applicant Guidebook 
version 4.
In making these observations and recommendations I am drawing on 
experience in the public policy arena of the GAC, the broader Internet 
Governance discussions, and also more than a decade of observing and 
interacting with the contracting parties and the other third-party 
commercial interests whose objective, means, and tactics within the 
ICANN environment are often complex.
The observations are as follows:

*Recommendation 1*

I support changing the name of the objection. I would recommend the 
phrase "Objection Based on General Principles of International Law". My 
reasoning to support this is below in Recommendation 2.3.
*Recommendation 2.1*

I support the proposal to add other treaties as examples in the draft 
applicant guidebook
*Recommendations 2.3 and 3.3*

As having been a spokesperson for the members of the Governmental 
Advisory Committee for years, I am very conscious of the sensitivities 
and importance of public policy. But I am also conscious of the need to 
have in place a regime which supports a globally interoperable Internet 
and supports transparency and accountability to principles of 
International Law.
_Keep the language tight: "National Law"_

For stability and clarity reasons -- to both potential gTLD applicants 
and to other governments -- it is important that any notification or 
objection considered under this recommendation be limited to "that a 
proposed TLD string is contrary to the national law". In some of the 
recommendation language in the working group report the phrase 
"government's perceived national interest" is used. It is important to 
delineate that this is not the same thing as national law. Law is the 
considered expression of a government -- either through executive, 
parliamentary of judicial structured mechanisms. Other phrases such as 
"perceived national interest" reflect a degree of political 
consideration which can be more fleeting, be expressed by very junior 
officials without Ministerial or Parliamentary approval, and often is a 
matter of debate between different groups within the country and 
government. In some respects it is similar to the phrase "public 
policy". I remember a GAC member many years ago stating that "public 
policy is anything I decide it is". While this is may be suitable for 
that official in that jurisdiction, I do not think it is the intention 
of the Working Group to have such an uncertain basis as the standard for 
this Recommendation.
Consequently, I would suggest that the recommendation limit its language 
to "national law". So that the Recommendation no 2.3 on page 37 of this 
report would read:
*"Recommendation No. 2.3*: The Applicant Guidebook should allow 
individual governments to file a notification (not an objection) that a 
proposed TLD string is contrary to their national law. The intention is 
that an "objection" indicates intent to block, but a "notification" is 
not an attempt to block, but a notification to the applicant and the 
public that the proposed string is contrary to the government's national 
law.  However, a national law objection by itself should not provide 
sufficient basis for a decision to deny a TLD application. "
_Avoid unintended incentives and consequences: Keep the link to 
"principles of international law"_
I support the recommendation that the "Applicant Guidebook should *not* 
include as a valid ground for a Recommendation 6 objection, an objection 
by an individual government based on national public interest concerns 
that are specified by the objection government as being contrary to 
national laws [which as I argued above should be changed simply to "an 
objection as being contrary to national law"] which is contrary to the 
principles of international law."
One of my concerns is that without such a linkage, a unique, one-off 
power to a government would be open to gaming by well-funded commercial 
interests with political influence.
The history of international tax administration, international corporate 
governance, anti-money laundering enforcement, and trade in illicit 
goods has shown repeatedly that sometimes in small jurisdictions, with 
weak governance and transparency institutions, moneyed interests have 
been able to get laws passed which serve their secrecy, tax interests, 
and/or illicit objectives.
The Board of ICANN should be very careful not to inadvertently put an 
incentive in the new gTLD rules which could see the same behaviour be 
applied to the Domain Name System. I am aware of some commercial 
entities involved in the ICANN space in years past that quietly boasted 
of their ability to get laws passed in certain small jurisdictions which 
would suit their commercial interests in competing with other players. 
This is not behaviour the ICANN Board should inadvertently incent.
It is important, therefore, that any notification or objection under 
Recommendations 6 should only derive from a national law which is in 
accordance with the principle of international law. I am sure the 
community does not want to see a series of laws in one country designed 
to stop or significantly retard a set gTLD strings simply to serve the 
interests of a competitor. The link to principles of international law 
is one way to make such bespoke law less likely.
There are of course human rights and other reasons for the maintenance 
of such a linkage. I note that many in the ICANN community have made 
this point. Indeed I note that as early as March 2007, the GAC 
principles on new gTLDs affirmed that the role of International law. 
Specifically,
2.1 New gTLDs should respect: (a) The provisions of the Universal 
Declaration of Human Rights which seek to affirm "fundamental human 
rights, in the dignity and worth of the human person and in the equal 
rights of men and women".
For similar reasons, I support the Working Group's Recommendation 3.2.

_Balance between National Law and Veto_

While recognizing the importance and validity concern of a national 
government can pay run counter to a national law I think both ICANN's 
bylaws and the consideration of the Working Group would inform the ICANN 
Board that it should be careful not to view one government alone as 
having veto power over any particular gTLD string which is designed to 
serve a global or at least international user group.
Consequently I would be supportive of the recommendation that individual 
governments file a notification rather than an objection that a proposed 
TLD is contrary to their national law.
*Recommendations 3.1, 3.2, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.1, 5.2, 5.3*

I support these Recommendations without comment.

*Recommendations 6.1 and 7.1*

* *

I support the amendments proposed by the working group to these tow 
Recommendations in particular new language of "incitement to an 
instigation of".
_ _

_Don't inadvertently undermine the Community TLD provisions of the Draft 
Applicant Guidebook_
I would assume that neither the Working Group nor the ICANN Board would 
intend these new recommendations to inadvertently counter the objectives 
and operations of the community-based rules for new gTLDs.
Imagine that a Trade Union Association was to apply for a TLD 
.tradeunion, as a Community TLD, which was dedicated to serve trade 
unions as registrants. It would be perverse if, for instance, an 
Employers Association, not eligible for a domain name in the.tradeunion 
TLD according to its Community rules, were to use the discrimination 
criteria under these Recommendations to argue that because it cannot be 
a registrant the .tradeunion TLD should not be awarded because it 
incites and instigates discrimination based on political opinion.
I would suggest that for clarity purposes it would be useful to state 
that the mere limitation of who can be a registrant (i.e. proof of being 
a member of the community) under a community TLD is not sufficient to 
trigger an objection under the incitement to and instigation of 
discrimination provisions envisaged here.
*Recommendations 8.1*

* *

I support that the experts should conduct their analysis on the basis of 
the string itself, but could, if needed, us as additional context the 
intended purpose of the TLD as stated in the application. This is a 
common approach for interpreting many items, including language in 
contracts and even the meaning of wording in legislation.
*Recommendations 9.1*

* *

I agree strongly with the Working Group that

"Blocking of TLDS should remain exceptional and be established by due 
legal process. The group also recognized that reduced blocking of TLDs 
is of little value if the result is that the opportunity to create new 
TLDs is unduly constrained by an objection process. The absence of 
blocking is of little value if it creates a name space that does not 
reflect the true diversity of ideas, cultures and views on the Internet. "
*Recommendations 10.1, 10.2, 11.2, 11.3*

I support these Recommendations without comment.

* *

*Recommendations 11.1*

While generally being supportive of processes which encourage parties to 
mitigate possibilities of conflict, I fear any mandated requirement to 
make an applicant identify and consult prior to an application with 
interested parties who may be concerned under these provisions may 
result in unforeseen legal and personal safety issues. Particularly in 
areas related to internationally recognized human rights, I think it is 
best that the Board does not mandate such prior communications.
* *

*Recommendations 12.1, 12.2, 12.3, 13.1, 14.1*

I support these Recommendations without comment.

* *

* *

Thank you for the opportunity to provide detailed comments on the fine 
efforts of the Working Group. I hope that these comments will be 
considered carefully and be of value as ICANN moves to improve the gTLD 
Applicant Guidebook.
Yours sincerely,

Paul Twomey