RE: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Robin,

I fully understand that all of us including ICANN have to follow
applicable national laws.  But it doesn't seem to me that the criteria
for dispute resolution for recommendations 3 and 6 would involve
national laws.  Unless I am missing something, and I could be, the
criteria that expert panels would apply would be based on applicable
interational law.

Also, if I am understanding you correctly, it sounds like you are saying
that the expert panels would have to take into consideration national
law of the applicant in every dispute.  That seems unfeasible to me and
I don't think that was what the committee intended in referring to
international law.

Chuck Gomes
 
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> -----Original Message-----
> From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] 
> Sent: Thursday, July 12, 2007 5:08 PM
> To: Gomes, Chuck
> Cc: Liz Williams; gtld-council@xxxxxxxxxxxxxx
> Subject: Re: [gtld-council] Update on new TLDs discussion: 
> small group work on "morality and public order"
> 
> Chuck,
> 
> The term "international law" can be analogized with the 
> concept of "the time".  One must also answer the question 
> "where?" to get an accurate picture. 
> 
> Different nations interpret and enforce international laws 
> differently, so there isn't a "one-size-fits-all" global 
> interpretation  of 'international law' that can be imposed on 
> all nations.  Obviously ICANN should follow the national 
> interpretation in question, which is not difficult to 
> determine and done all the time in the international legal arena.
> 
> And, it is not only the applicant registry who must follow 
> the national law in question, but also ICANN and the expert 
> panels must also follow the national law of the applicant in 
> making their determinations.  
> Certainly ICANN is not exempt from following national laws.
> 
> Thanks,
> Robin
> 
> 
> 
> 
> Gomes, Chuck wrote:
> 
> >Robin,
> >
> >Please note that I was not specifically advocating that we 
> should look 
> >at national law; in fact, my understanding was that we would not but 
> >instead rely on international law.  Of course, the registry involved 
> >would be responsible for following their national laws, but 
> I believe 
> >that is separate from the new gTLD process and associated challenge 
> >processes.
> >
> >Chuck Gomes
> > 
> >"This message is intended for the use of the individual or entity to 
> >which it is addressed, and may contain information that is 
> privileged, 
> >confidential and exempt from disclosure under applicable law. Any 
> >unauthorized use, distribution, or disclosure is strictly 
> prohibited. 
> >If you have received this message in error, please notify sender 
> >immediately and destroy/delete the original transmission."
> > 
> >
> >  
> >
> >>-----Original Message-----
> >>From: Robin Gross [mailto:robin@xxxxxxxxxxxxx]
> >>Sent: Thursday, July 12, 2007 2:53 PM
> >>To: Gomes, Chuck
> >>Cc: Liz Williams; gtld-council@xxxxxxxxxxxxxx
> >>Subject: Re: [gtld-council] Update on new TLDs discussion: 
> >>small group work on "morality and public order"
> >>
> >>Chuck,
> >>
> >>You raise an important point upon which we should be clear, 
> >>particularly in the implementation guidelines.
> >>
> >>Trademarks rights, freedom of expression rights, etc. are all 
> >>protected under international law, but the particular 
> implementation 
> >>of these international legal regimes often differ slightly, 
> depending 
> >>on how a particular nation applies and enforces those 
> internationally 
> >>protected rights.
> >>
> >>So you are right that we will have to look to the national 
> law of the 
> >>applicant registry to determine which nation's interpretation of 
> >>internationally recognized legal rights to consider.
> >>
> >>Robin
> >>
> >>
> >>Gomes, Chuck wrote:
> >>
> >>    
> >>
> >>>I am not the right one to answer this question but I will 
> ask it: In 
> >>>what circumstances would U.S. law prevail?  My understanding
> >>>      
> >>>
> >>is that we
> >>    
> >>
> >>>were basing our recommendations on enforceable principles of 
> >>>international law, not national law, except that an
> >>>      
> >>>
> >>individual registry
> >>    
> >>
> >>>would have to comply with its own national laws.  Am I
> >>>      
> >>>
> >>incorrect about
> >>    
> >>
> >>>this?
> >>>
> >>>Chuck Gomes
> >>>
> >>>"This message is intended for the use of the individual or 
> entity to 
> >>>which it is addressed, and may contain information that is
> >>>      
> >>>
> >>privileged,
> >>    
> >>
> >>>confidential and exempt from disclosure under applicable law. Any 
> >>>unauthorized use, distribution, or disclosure is strictly
> >>>      
> >>>
> >>prohibited. 
> >>    
> >>
> >>>If you have received this message in error, please notify sender 
> >>>immediately and destroy/delete the original transmission."
> >>>
> >>>
> >>> 
> >>>
> >>>      
> >>>
> >>>>-----Original Message-----
> >>>>From: owner-gtld-council@xxxxxxxxxxxxxx 
> >>>>[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of 
> Robin Gross
> >>>>Sent: Tuesday, July 10, 2007 5:32 PM
> >>>>To: Liz Williams
> >>>>Cc: gtld-council@xxxxxxxxxxxxxx
> >>>>Subject: Re: [gtld-council] Update on new TLDs discussion: 
> >>>>small group work on "morality and public order"
> >>>>
> >>>>Liz,
> >>>>
> >>>>It seems you are comparing apples with oranges and risk
> >>>>        
> >>>>
> >>serious legal
> >>    
> >>
> >>>>liability for ICANN.  There is an entirely different standard of 
> >>>>permissible expression for television than there is for the
> >>>>        
> >>>>
> >>Internet.
> >>    
> >>
> >>>>Based on pressure from the "Religious Right" in the US in 
> 1996, US 
> >>>>Congress passed the Communications Decency Act in an attempt to 
> >>>>regulate
> >>>>morality on the Internet to protect the children.   The 
> >>>>        
> >>>>
> >>Americans for
> >>    
> >>
> >>>>Civil Liberties Union (ACLU), EPIC, and the Electronic Frontier 
> >>>>Foundation (EFF) in addition to 17 other groups brought an
> >>>>        
> >>>>
> >>immediate
> >>    
> >>
> >>>>challenge to the act.  In the most important US court decision 
> >>>>addressing free expression on the Internet, the US Supreme Court 
> >>>>struck down the CDA as an unconstitutional violation of Americans'
> >>>>freedom of expression rights.
> >>>>
> >>>>In the CDA case, the government asserted the same 
> argument that you 
> >>>>make
> >>>>here: "TV is regulated to protect children, so we can 
> regulate the 
> >>>>Internet too".  The US Supreme Court explained why the 
> Internet is 
> >>>>different than TV and held that there is no basis for 
> lowering the 
> >>>>level of protection for free expression to the lower
> >>>>        
> >>>>
> >>standard applied
> >>    
> >>
> >>>>to television.
> >>>>
> >>>>In the CDA decision, /ACLU v. Reno/, the US Supreme Court
> >>>>        
> >>>>
> >>affirmed the
> >>    
> >>
> >>>>lower court's ruling and held:
> >>>>"we have made it perfectly clear that "[s]exual 
> expression which is 
> >>>>indecent but not obscene is protected by the First Amendment."
> >>>>/Sable,/
> >>>>492 U. S., at 126. See also /Carey/ v. /Population 
> Services Int'l,/
> >>>>431 U. S. 678, 701 (1977) ("[W]here obscenity is not
> >>>>        
> >>>>
> >>involved, we have
> >>    
> >>
> >>>>consistently held that the fact that protected speech may
> >>>>        
> >>>>
> >>be offensive
> >>    
> >>
> >>>>to some does not justify its suppression"). Indeed,
> >>>>        
> >>>>
> >>/Pacifica/ itself
> >>    
> >>
> >>>>admonished that "the fact that society may find speech 
> offensive is 
> >>>>not a sufficient reason for suppressing it." 438 U. S., at
> >>>>        
> >>>>
> >>745. It is
> >>    
> >>
> >>>>true that we have repeatedly recognized the governmental
> >>>>        
> >>>>
> >>interest in
> >>    
> >>
> >>>>protecting children from harmful materials. See /Ginsberg,/
> >>>>        
> >>>>
> >>390 U. S.,
> >>    
> >>
> >>>>at 639; /Pacifica,/ 438 U. S., at 749.
> >>>>But that interest does not justify an unnecessarily broad
> >>>>        
> >>>>
> >>suppression
> >>    
> >>
> >>>>of speech addressed to adults. As we have explained, the 
> Government 
> >>>>may not "reduc[e] the adult population . . . to . . . only
> >>>>        
> >>>>
> >>what is fit
> >>    
> >>
> >>>>for children."
> >>>>
> >>>>PLEASE read /ACLU v. Reno/, the '97 US Supreme Court
> >>>>        
> >>>>
> >>decision (THE law
> >>    
> >>
> >>>>in the US dealing with free expression on the Internet):
> >>>> http://www2.epic.org/cda/cda_decision.html
> >>>>
> >>>>If ICANN were to adopt your suggested policy that it can regulate 
> >>>>protected speech on the Internet, no doubt groups like 
> ACLU and EFF 
> >>>>will challenge such an illegal restriction in US courts and
> >>>>        
> >>>>
> >>US judges
> >>    
> >>
> >>>>will be obliged to follow the US Supreme Court precedent on the 
> >>>>matter.
> >>>>
> >>>>No one here is suggesting that obscenity cannot be regulated to 
> >>>>protect children, but the kind of overly-broad "TV standard" of 
> >>>>regulation that you suggest ICANN undertake 'to protect the
> >>>>        
> >>>>
> >>children' 
> >>    
> >>
> >>>>will also be struck down by US courts upon its attempted 
> >>>>implementation.  I don't
> >>>>think that is the kind of 'policy' you want to make for 
> ICANN.   It 
> >>>>would be far wiser to follow the US Supreme Court's clear
> >>>>        
> >>>>
> >>ruling, obey
> >>    
> >>
> >>>>the law and respect free expression rights.
> >>>>
> >>>>There is no getting around the fact that ICANN is a US
> >>>>        
> >>>>
> >>corporation and
> >>    
> >>
> >>>>operates under the authority of the US Government and it
> >>>>        
> >>>>
> >>will not be
> >>    
> >>
> >>>>allowed to infringe the free expression rights of US
> >>>>        
> >>>>
> >>citizens that are
> >>    
> >>
> >>>>guaranteed by the First Amendment to the US Constitution.
> >>>>
> >>>>Robin
> >>>>
> >>>>
> >>>>Liz Williams wrote:
> >>>>
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>Robin
> >>>>>
> >>>>>Just to be clear about "prior censorship".
> >>>>>
> >>>>>If one reads all the way through the provisions there is 
> specific 
> >>>>>provision for "prior censorship" particularly as it relates to 
> >>>>>childhood and adolescence.
> >>>>>
> >>>>>"4.Notwithstanding the provisions of paragraph 2 above, public 
> >>>>>entertainments may be subject by law to prior censorship
> >>>>>     
> >>>>>
> >>>>>          
> >>>>>
> >>>>for the sole
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>purpose of regulating access to them for the moral protection of 
> >>>>>childhood and adolescence."
> >>>>>
> >>>>>In the Australian context, this would be very similar to the 
> >>>>>regulation of content which prohibits the screening of content 
> >>>>>(including advertising) which is deemed inappropriate 
> for children 
> >>>>>during prime viewing hours.
> >>>>>
> >>>>>Kind regards.
> >>>>>
> >>>>>Liz
> >>>>>.....................................................
> >>>>>
> >>>>>Liz Williams
> >>>>>Senior Policy Counselor
> >>>>>ICANN - Brussels
> >>>>>+32 2 234 7874 tel
> >>>>>+32 2 234 7848 fax
> >>>>>+32 497 07 4243 mob
> >>>>>
> >>>>>
> >>>>>
> >>>>>
> >>>>>On 09 Jul 2007, at 16:01, Robin Gross wrote:
> >>>>>
> >>>>>     
> >>>>>
> >>>>>          
> >>>>>
> >>>>>>I sent the email below very quickly during a fast flight
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>connection
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>and I'd like to explain what I meant - since its not
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>entirely   clear 
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>below.
> >>>>>>
> >>>>>>Article 13 of the convention explicitly forbids prior
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>restraints on
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>speech - even in cases of immoral or disorderly expression (as 
> >>>>>>defined in the convention).
> >>>>>>A "prior restraint on speech" is legalese for when a
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>public authority
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>prevents expression from happening because it believes
> >>>>>>harm will result.   Banning a domain name is a prior 
> >>>>>>            
> >>>>>>
> >>restraint on
> >>    
> >>
> >>>>>>speech.
> >>>>>>In other words, under this convention, a public authority
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>can't  just
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>assume that limiting speech will prevent harm and censor
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>accordingly.
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>According to this convention, the allowable path under 
> law is to 
> >>>>>>allow the domain name to be registered but let someone 
> take it to 
> >>>>>>court if they have suffered real harm that can be shown
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>and then  let
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>the independent courts decide if there can be liability imposed.
> >>>>>>
> >>>>>>So while I sympathize with the desire to find definitions
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>for "moral" 
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>and "public order" in international conventions, I am
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>concerned that
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>we will use these definitions to do precisely what the 
> convention 
> >>>>>>says we cannot do - create a prior restraint on speech
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>based on these
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>terms.
> >>>>>>
> >>>>>>I hope that is more clear.
> >>>>>>
> >>>>>>Thanks,
> >>>>>>Robin
> >>>>>>
> >>>>>>
> >>>>>>Robin Gross wrote:
> >>>>>>
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>>>>I understand the desire to find definitions for these terms.
> >>>>>>>
> >>>>>>>But we need to keep in mind their context.
> >>>>>>>We may be using these terms to define what expression can be 
> >>>>>>>prevented.
> >>>>>>>/Sub-para 2 says that expression "shall not be subject 
> to prior 
> >>>>>>>censorship/".
> >>>>>>>
> >>>>>>>Article 13 (cited) expressly forbids prior censorship --
> >>>>>>>         
> >>>>>>>
> >>>>>>>              
> >>>>>>>
> >>>>so we could
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>using the definitions, in order to achieve what the Article 
> >>>>>>>explicitly prohibits: prior restraints on speech.
> >>>>>>>
> >>>>>>>Robin
> >>>>>>>
> >>>>>>>
> >>>>>>>
> >>>>>>>Liz Williams wrote:
> >>>>>>>
> >>>>>>>         
> >>>>>>>
> >>>>>>>              
> >>>>>>>
> >>>>>>>>Colleagues
> >>>>>>>>
> >>>>>>>>In light of yesterday's discussion about the inclusion of the 
> >>>>>>>>phrases "morality and public order" in the text, I have
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>excerpted
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>below a footnote from Wolfgang Sakhalin's paper
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>(submitted by the
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>NCUC as expert advice) which is available at  http:// 
> >>>>>>>>www.ipjustice.org/ICANN/Sakulin_Legal_Briefing.pdf.
> >>>>>>>>
> >>>>>>>>You'll see in Section 2 Paragraph 2 that the wording
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>about public
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>order and morals is included (as a limiting test on how
> >>>>>>>>                
> >>>>>>>>
> >>to apply
> >>    
> >>
> >>>>>>>>the Convention). /American Convention on Human Rights, 1144 
> >>>>>>>>U.N.T.S. 123, Article 13 states:/ /"Freedom of Thought and 
> >>>>>>>>Expression/ /1.Everyone has the right to freedom of 
> thought and 
> >>>>>>>>expression.
> >>>>>>>>This right includes freedom to seek, receive, and impart 
> >>>>>>>>information and ideas of all/ /kinds, regardless of 
> frontiers, 
> >>>>>>>>either orally, in writing, in print, in the form of art,
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>or through
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>any other medium of one's choice./ /2.The exercise of 
> the right 
> >>>>>>>>provided for in the foregoing paragraph shall not be 
> subject to 
> >>>>>>>>prior censorship but shall be subject to subsequent/
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>/imposition of
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>liability, which shall be expressly established by law to the 
> >>>>>>>>extent necessary to ensure:/ /1.respect for the rights or 
> >>>>>>>>reputations of others; or/ /2.the protection of national
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>security,
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>public order, or public health or morals./ /3.The right of 
> >>>>>>>>expression may not be restricted by indirect methods or
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>means, such
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>as the abuse of government or private controls over 
> newsprint,/ 
> >>>>>>>>/radio broadcasting frequencies, or equipment used in the 
> >>>>>>>>dissemination of information, or by any other means 
> tending to 
> >>>>>>>>impede the/ /communication and circulation of ideas and
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>opinions./
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>/4.Notwithstanding the provisions of paragraph 2 
> above, public 
> >>>>>>>>entertainments may be subject by law to prior
> >>>>>>>>                
> >>>>>>>>
> >>censorship for the
> >>    
> >>
> >>>>>>>>sole purpose of/ /regulating access to them for the moral 
> >>>>>>>>protection of childhood and adolescence./ /5.Any
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>propaganda for war
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>>>>>>>and any advocacy of national, racial,  or religious 
> hatred that 
> >>>>>>>>constitute incitements to lawless  violence or to any other/ 
> >>>>>>>>/similar action against any person or group of persons on any 
> >>>>>>>>grounds including those of race, color, religion, 
> language, or 
> >>>>>>>>national origin shall be/ /considered as offenses 
> punishable by 
> >>>>>>>>law."/ / / If the small group that is discussing this
> >>>>>>>>                
> >>>>>>>>
> >>particular
> >>    
> >>
> >>>>>>>>issue could refer to this as an example and to other
> >>>>>>>>                
> >>>>>>>>
> >>examples in
> >>    
> >>
> >>>>>>>>different jurisdictions it would be very helpful.
> >>>>>>>>
> >>>>>>>>Kind regards.
> >>>>>>>>
> >>>>>>>>Liz
> >>>>>>>>
> >>>>>>>>
> >>>>>>>>.....................................................
> >>>>>>>>
> >>>>>>>>Liz Williams
> >>>>>>>>Senior Policy Counselor
> >>>>>>>>ICANN - Brussels
> >>>>>>>>+32 2 234 7874 tel
> >>>>>>>>+32 2 234 7848 fax
> >>>>>>>>+32 497 07 4243 mob
> >>>>>>>>
> >>>>>>>>
> >>>>>>>>
> >>>>>>>>
> >>>>>>>>           
> >>>>>>>>
> >>>>>>>>                
> >>>>>>>>
> >>>>>>>         
> >>>>>>>
> >>>>>>>              
> >>>>>>>
> >>>>>     
> >>>>>
> >>>>>          
> >>>>>
> >>>>   
> >>>>
> >>>>        
> >>>>
> >>> 
> >>>
> >>>      
> >>>
> >
> >  
> >
> 
>