Comments on Morality and Public Order Memo
Thank you for the opportunity to comment on the Morality and Public Order memo released in conjunction with ICANN's New gTLD Guide. This is a redacted version of my blog post originally published on November 30, 2008 at http://www.namesatwork.com/blog/2008/10/30/icanns-morality-memo . Antony Van Couvering ****ICANN has just published a new explanatory memorandum in connection with new gTLD applications, this one called “Morality and Public Order Objection Considerations in New gTLDs.” The issue is difficult; the memo is tortured.The memo is a twist on the twisted adage, “That’s all very well in practice, but what about the theory?” The ICANN staff were tasked with finding a theoretical foundation for barring .NAZI, .CHILDPORN, .KILLTHEINFIDEL, and so on — repugnant to just about everyone, but difficult to define. In their search for a framework that fit the facts, ICANN turned to the law, and consulted (no doubt at great expense) with numerous lawyers around the world. In essence the memo forbids TLDs inciting violence, hatred, or child porn. Left untouched are regular old porn, gambling, and various other venial sins. The door is therefore open for another try at .XXX and for a first try at .GAMBLING. The central problem, which ICANN faces again and again, is that it is an international organization, whereas morality (and law) are intensely local. As in other areas, ICANN is having to chart new ground. I have a grudging respect for them for trying, but this is a territory that is not easily mapped. The overblown language of the memo betrays ICANN’s eggshell path. Lawyers are not just lawyers, they are “jurists.” In fact, they are often “highly esteemed jurists,” who travel in company with “international public law experts,” “senior level jurists,” “international arbitration experts,” “well-recognized experts,” and “highly regarded dispute resolution providers.” This international coterie was consulted about “international principles of law,” “generally accepted legal norms,” and “international fora hearing cases involving governments and treaty obligations.” Readers (and writers) of this blog will recognize the message: this stuff is well above your pay grade, and these highly-esteemed jurists are way smarter and better-connected than you will ever be, and you should be very wary of second-guessing them, even if, as a potential registry, you will be paying their hourly consulting rates. The reason for this parade of legal aristocracy can also be guessed at: there isn’t any way to come up with an international standard of Morality & Public Order, so we had better leave it to the senior esteemed highly-regarded international expert jurists, leave it to their discretion, don’t hem them in with rules, because there aren’t any rules that work internationally. And, no surprise, this where ICANN ends up: "In addition, it may be determined that the panelists should have discretion to sustain objections if the panel determines that a proposed TLD name rises to the level that it would be contrary to generally accepted legal norms relation to morality and public order that are recognized under principles of international law…. only senior level jurists with expertise in international fora hearing cases involving governments and treaty interpretations should be asked to participate as panelists in this process." In other words, punt. Send it over to the people with the intimidating credentials. What else could they do? You don’t need to be a highly- esteemed international jurist to figure that one out. I just wish they’d punted sooner and saved TLD applicants thousands of dollars in application fees. |