requested information from ICANN on new gtld Draft Implementation Guidelines
I still outstanding questions from ICANN staff and I'm concerned about the poor quality of the legal analysis presented by ICANN (like quietly changing a legal test from an "and" to an "or" see below). I'm also concerned about ICANN staff deciding to rewrite the UDRP and invent new provisions like the attempt to render national courts impotent to protect their citizens if they get a raw deal from ICANN, something not in the GNSO's recommendations. I likely won't be able to be on the call, but am still waiting for Kurt Pritz to answer the questions I raised in Cairo and followed up via email to him on 2 November (and appended at the end of this email). The Draft Application Guidelines are incorrect in the legal analysis and conclusions in a number of important ways. And it is clear the object is content regulation of websites, not merely URLs. The 3 categories of speech to auto-ban based on "morality and public order" are: 1. Incitement to violent lawless action.2. Incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion or national origin. 3. Incitement to or promotion of child pornography or other sexual abuse of children. I. Incitement to Violent Lawless ActionUS rule on this category: The right to free expression does "not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio (US Supreme Court 1969)
So ICANN's recommendation is missing 2 parts of the test under US law:
- no IMMEDIATE violence is required for ICANN to ban the speech;
- no LIKELINESS of actually producing any violence for ICANN to ban
the speech.
Further, the ICANN paper shockingly changes the AND to an OR in his description of the US test: ICANN: "This limit should be construed as applying only to violent lawless action that is imminent or likely to result from the incitement." (p. 4 of 29 Oct. paper) So instead of this being a 2-part test as US law requires, ICANN will ban the speech if it meets either prong of the test - big difference and ICANN is not being honest about this legal standard (or is getting incompetent legal counsel). (Technically, it is a 3-part test in the US because the speaker must INTEND to produce the imminent lawless violence.) WHERE DID THE RESEARCH COME FROM THAT TOLD ICANN THE TEST INVOLVED AN "OR" RATHER THAN "AND" AS CLAIMED IN ICANN'S PAPER? II. Incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion or national origin. Category 2 (banning "meanness") is NOT an accepted principle of international law as ICANN claims and is in clear contrast to US law for violating freedom of expression. This category of prohibited speech is the "European Standard" for limiting free expression, but is certainly not universally accepted international law as claimed. This standard would be illegal policy in the US, the jurisdiction in which ICANN resides. What specific jurisdictions did ICANN determine this to be the standard as it claims in the paper? Principle G of GSNO's Recommendations explicitly state "The string evaluation process must not infringe the Applicant's freedom of expression rights", but that has fallen off of the radar screen of ICANN. The Draft Implementation Guidelines also eliminate the right of applicants to challenge any ICANN decision or related dispute proceedings in a national court (unlike under the UDRP). So applicants would have no protection at all for their free expression rights and national courts would have no means of protecting their citizens from an abuse in an ICANN proceeding about a domain name. This point was also NOT in the GNSO's recommendations and is something that staff pulled out of a hat (as part of its bottom-up process) presumably in an attempt to protect itself from being sued. III. Incitement to or promotion of child pornography or other sexual abuse of children. It is well-settled principle of international law that child pornography illegal. No argument about that. But "incitement or promotion" to engage in child porn is different than the porn itself. So there is conflation between the law on child porn itself and the law on statements about child porn. Again it appears ICANN is attempting to regulate the content of websites, not URLs, since a domain name (2-6 letter string) cannot be child porn or sexual abuse of children. I'd like an answer from ICANN about how a URL can be child porn as a practical matter. IV. Other Concerns on Morality and Public Order Objections- who can bring a morality and public order objection? There is concern that attempts to make this anything other than a government (who has standing to object) will lead to arbitrary, subjective, and more widely conflicting standards. - Objections based on the Morality and Public Order objection will be determined by the International Chamber of Commerce, so there is concern that non-commercial interests won't get a fair shake from ICC, which represents and advocates on behalf the world's largest businesses. - Dispute resolution panelists can choose (without the request of parties) to make their proceedings and finding confidential and sealed from the public. What about transparency and accountability? - Specific language on eliminating right to appeal to national court is deeply troubling. Didn't come from the GNSO or the Board, but from ICANN staff .... must be part of ICANN's "bottom up" process we read so many press releases about. Specifically, DAG Term 6 of the terms and conditions states:"APPLICANT AGREES NOT TO CHALLENGE, IN COURT OR IN ANY OTHER JUDICIAL FORA, ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE APPLICATION, AND IRREVOCABLY WAIVES ANY RIGHT TO SUE OR PROCEED ON THE BASIS OF ANY OTHER LEGAL CLAIM AGAINST ICANN AND ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES AND ACCEPTS THAT APPLICANT'S NONENTITLEMENT TO PURSUE ANY RIGHTS, REMEDIES, OR LEGAL CLAIMS AGAINST ICANN OR THE ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION SHALL MEAN THAT APPLICANT WILL FOREGO ANY RECOVERY OF ANY APPLICATION FEES, MONIES INVESTED IN BUSINESS INFRASTRUCTURE OR OTHER START-UP COSTS AND ANY AND ALL PROFITS THAT APPLICANT MAY EXPECT TO REALIZE FROM THE OPERATION OF A REGISTRY FOR THE TLD." On the Legal Rights of Others Objection, what happened to recognition of the applicant's free expression rights as included in the UDRP? ICANN inventing a new 8-factor test out of thin air, while ignoring existing legal standards that protect users doesn't sound very "bottom up" either. References: http://www.icann.org/en/topics/new-gtld-draft-rfp-24oct08-en.pdf http://www.icann.org/en/topics/new-gtld-program.htmhttp://icann.org/en/topics/new-gtld-morality-public-order- draft-29oct08-en.pdf -------------------------------------------------- Begin forwarded message: From: Robin Gross <robin@xxxxxxxxxxxxx> Date: November 2, 2008 4:28:28 AM PST To: Kurt Pritz <kurt.pritz@xxxxxxxxx>Cc: Milton Mueller <Mueller@xxxxxxx>, Carlos Affonso Pereira de Souza <caf@xxxxxx>, Norbert Klein <nhklein@xxxxxxx>, Susan Crawford <scrawford@xxxxxxxxxxxxx>, Wendy Seltzer <wendy@xxxxxxxxxxx>Subject: follow-up on new gtld issues Kurt,I just wanted to follow-up with you on the questions we discussed this morning in the GNSO meeting this AM on the new gTLD recommendation process.1. By WHEN will you provide us with the legal research that supports the contention that banning "meanness" is lawful in the USA as you said your experts told you?Specifically, the contention in the background paper that identifies 3 categories of speech that is restricted in most jurisdiction and claims "incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion, or national origin" is one of these categories.I know versions of this prohibition exist in some parts of the EU, but much of the world, including the US, the jurisdiction in which ICANN resides, this is not the law.2. By WHEN do you need the names of international human rights and free expression experts to provide some additional legal perspectives to ICANN?I would be glad to identify some experts and help in any way to facilitate their consultation by ICANN.3. I know the paper claims to have consulted with such experts, so WHO were they? Thanks. I look forward to a response from you on these 3 questions, which are very important to NCUC and others.Best, Robin IP JUSTICE 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 IP JUSTICE 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 |