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

[Robin Gross <robin@xxxxxxxxxxxxx>]

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.

=======

IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
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