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Concern for free expression, innovation, and competition in implementation of new gtld policy

  • To: gnso-tlp@xxxxxxxxx
  • Subject: Concern for free expression, innovation, and competition in implementation of new gtld policy
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Wed, 16 Jul 2008 16:15:47 -0700

IP Justice Comment on New GTLD Implementation Issues
Protect Free Expression, Innovation, and Competition
17 July 2008

I am writing in support of the public statements made by ICANN Board Members Susan Crawford and Wendy Seltzer at the 26 June 2008 Public ICANN Board Meeting in Paris (see transcript below).

I share many of the concerns raised by others (including supporters of the "Keep the Core Neutral" Petition the At-Large Users (ALAC), and the Non-Commercial Users Constituency (NCUC) on Recommendation #6 and #20) about the readiness of ICANN's proposed new gtld policy to censor controversial ideas and favor incumbent interests at the expense of free expression, innovation, and competition at the top- level of the Internet.

I urge ICANN to adopt implementation policies that mitigate opportunities for censorship and arbitrary interference with the free flow of information. One way to mitigate the arbitrariness of the policy is to only allow governments to have standing to file an objection based on "morality and public order", as government undertakes the role of protecting such interests. I also discourage the "beauty-content" format proposed for evaluating and comparing competing interests to a TLD since such "comparison evaluations" are inevitably arbitrary, subjective, and not a recommendation of the GNSO.

I further urge ICANN to be reminded of its limited "technical" purpose and limited authority to govern. It is also important to remember that using third-party dispute resolution providers to carry- out a policy of censorship does not absolve ICANN for any legal liability it may face for infringing upon the free expression rights of domain name registrants.

Thank you for the opportunity to provide comment during the implementation process.

Robin Gross
IP Justice Executive Director

26 June 2008 ICANN Board Meeting  – transcript extracts:

>>WENDY SELTZER:   Thank you, Peter.

So the at-large, as registrants and as users of domain names, supports the introduction of new gTLDs. Has no interest in delaying that process, but does wish to express its concern about two of the recommendations in the GNSO recommendation set. Specifically, the morality and public order objection and the objection based on community objections.

And ALAC and its RALOs, in discussion during this meeting, put together a statement, which I won’t read in its entirety, but expressed concern that putting these criteria into the gTLD approval process, even as opportunities for objection, injects ICANN into the business of making morality and public order decisions, or injects that into ICANN’s processes in a way that, as ALAC put it, debases the ICANN process. And at-large does not want to see ICANN put into the business of adjudicating or even delegating the adjudication of morality or public order or community support.

And so we hope that in implementation, these criteria can be kept sufficiently narrow so that they are both administrable and understandable and so that they do not involve ICANN, the organization, in making, or allowing to be made, determinations about any claim to generally accepted morality principles. Thank you.
 [ Applause ]

 >>SUSAN CRAWFORD:   Thank you, Mr. Chairman.

I have mixed feelings on this day. I have long supported the entry of new gTLDs into the root. It has seemed to me that it’s inappropriate for ICANN to use its monopoly position over giving advice about the existence of new TLDs to create artificial scarcity in TLDs, where there is no natural scarcity, in my view.

And that has led to a great deal of pent-up demand for the creation of new TLDs for various reasons, for communities, for new identities, all over the world.

And in particular, it is urgent that we create IDN gTLDs for the many language communities around the world that would prefer to have those.

 The question presented to the board today is a little strange.

What we’re being asked to respond to is whether the recommendations, the policy recommendations from the GNSO are implementable. And then staff will go on, and if we decide they are, theoretically, implementable, will draft the implementation guidelines for the recommendations made by the GNSO council.

There is a lot of important effort to go into those implementation details. And I am signing up to these recommendations on the condition that the implementation work will proceed as planned, and that the board and the community will have an opportunity to comment in detail on that implementation work.

In particular, I want to applaud and underline what Wendy Seltzer just said about the morality and public order recommendation, recommendation number 6. Way back when ICANN was formed, that original MOU, which we’re now talking about as the JPA, talked of transitioning the management of the Domain Name System to the private sector.

And the idea was to figure out whether the private sector had the capability and resources to assume the important responsibilities related to the technical management of the DNS. So that was the question.

And so the creation of ICANN, and the question before all of us, was whether this entity would be a good vessel for allowing the private sector to take the lead in the management of the Domain Name System.

And, in fact, the white paper in 1998 said that while international organizations may provide specific expertise or act as advisors to the new corporation, the U.S. continues to believe, as do most commenters, that neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses.

Of course, national governments now have, and will continue to have, authority to manage or establish policy for their own ccTLDs.

This wasn’t done out of enthusiasm for the free market alone. The idea was also to avoid having sovereigns use the Domain Name System for their own content, control, desires. To avoid having the Domain Name System used as a choke point for content.

Recommendation 6, which is the morality and public order recommendation, represents quite a sea change in this approach, because the recommendation is that strings must not be contrary to generally acceptable legal norms relating to morality and public order that are recognized under international principles of law. That’s the language of the recommendation.

Now, if this is broadly implemented, this recommendation would allow for any government to effectively veto a string that made it uncomfortable.

Having a government veto strings is not allowing the private sector to lead. It’s allowing sovereigns to censor.

Particularly in the absence of straightforward clear limits on what morality and public order means, people will be unwilling to propose even controversial strings and we’ll end up with a plain vanilla list of TLDs.

So I am unhappy about this recommendation. I am willing to vote for it on the strength of the board’s discussion and the staff’s undertakings that the standards for this recommendation will be narrowly stated.

And on my expectation that the board and the community will have an opportunity to review and approve, or not, the details of those standards.

We do have some global norms of morality and public policy. They are very few. One of them is incitement to violent, lawless action. Nobody wants that around the world.

A second might be incitement to or promotion of discrimination based on race, color, gender, ethnicity, religion, or national origin.

And the third might be incitement to or promotion of child pornography or other sexual abuse of children.

Otherwise, the question of morality and public order varies dramatically around the world. It’s a diverse, complicated world out there. And it may not be — it should not be possible to state that there is a single standard of morality and public order around the world.

So I am asking that staff come back with an express standard that’s constrained to stated norms, like the three I just listed, found and expressly in their national treaties. We need clear lines of adjudication. And I would be content with that kind of implementation.

Another concern of mine is with — with this list of recommendations is recommendation 20 which says, "An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted."

It’s quite unclear how it’s all going to work out, whether any generic applicant could ever win over a community, could ever succeed in contention for a string over a community that says it’s a community. And I look forward to many more details on this recommendation as well.

And finally — and I’m sorry to speak at such length but I think it’s an important moment. Finally, I’m not happy with the idea that there will be auctions on strings for which there is more than one applicant. And I note that the GNSO’s own recommendations on this subject don’t mention auctions. And I hope the board will not adopt this approach.

My bottom line is I will vote for this set of recommendations, and I hope that the implementation will be sensible. Thank you.
 [ Applause ]

 >>PETER DENGATE THRUSH:   Thank you, Susan.


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@xxxxxxxxxxxxx

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