Re: [soac-mapo] Ideology vs. practicality in MAPO/MOPO

[Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>]

Thanks, Richard, excellent questions.

I think your description of what I'm suggesting is about right.  I don't think 
there are any bright-line objective standards -- if there were, we wouldn't be 
having this conversation.  That said, there are a few things that are thought 
of internationally as "bad" -- child pornography, ethnic or religious hatred, 
etc.   To these few norms, and phrases such as "profoundly and inherently 
objectionable"  you would add the judgment of the panel, because remember it's 
not just the string.  For instance, .jew in the hands of the Anti-Defamation 
League is very different than .jew in the hands of Hamas.  And the same would 
be true of .palestinian.  

Clearly the deliberations of this panel should be available for public 
scrutiny.  I think the practical effect would be that the only applications 
that get rejected would be so appallingly awful that no-one would complain.   
Short of that, the panel would be forcefully accused of censorship, and would 
be loathe to reject anything that wasn't over the top.   

Personally I don't think any application will provoke the sort of universal 
loathing that would lead to a rejection.  But in case someone were dumb enough 
to try, this panel is where it would die.  Recall also that ICANN is a 
California not-for-profit and the freedom of speech laws of the U.S. would 
presumably apply -- meaning that any rejection might well be litigated in court 
-- where this issue probably belongs. 

I don't believe that this issue has anything to do with conservative, 
traditional, or religious governments.  These governments are quite content to 
block things they don't like, as China does frequently, as Pakistan did with 
Facebook recently.  They do it and have no remorse over doing so.   Rather, the 
issue is with western democracies that have free-speech principles embodied in 
their laws, but nonetheless do NOT want to see the first wave of TLDs contain 
anything repugnant.  The U.S., for instance, won't be able to block 
.kukluxklan, either legally under U.S. law or practically by sending an edict 
to ISPs, and yet they would be very much opposed to its introduction into the 
root. 

I believe a broad-based panel, whose decisions and deliberations are held up to 
public scrutiny (and possibly, public outcry), is a far better solution than 
trying to define rules for something that is altogether indefinable, and also 
better than some sort of secret panel, which is the other option. 

Antony

On Jul 12, 2010, at 12:09 AM, Richard Tindal wrote:

> Antony
> 
> Let me play this back to make sure I have it.
> 
> You're saying there are no international laws/ treaties on this topic (I 
> think that's a a statement of fact)  and that even when we talk about 
> 'international norms' we're on shaky ground as such norms are not well 
> defined or broadly accepted.
> 
> Given the above  - you're suggesting this issue is best handled by a broad 
> based panel who would effectively vote on objectionable strings.   Purely as 
> an example,  there might be 15 persons on a panel and if 10 or more of them 
> found a string to be objectionable this string would be rejected  (or 
> possibly go into another review process).    You're suggesting this sort of 
> political approach is the most practical one - given the extreme subjectivity 
> of the issue.
> 
> Is that it?
> 
> If so,  have you given thought to what standard the panel would apply?     
> Would it be as broad as "I know it when I see it",   or do you foresee 
> something more detailed like 'strings that are profoundly and inherently 
> objectionable with no redeeming value".        What sort of standard do you 
> think the panel should use?
> 
> RT
> 
> 
>  
> On Jul 11, 2010, at 10:38 AM, Antony Van Couvering wrote:
> 
>> 
>> This note is meant to provide what I think is the background of this issue, 
>> and to point the way forward as I see it. 
>> 
>> Both ICANN and the GAC have ideals (or ideologies), that conflict with the 
>> realities.   Everything is fine as long as the realities are allowed to 
>> exist in a parallel universe from the ideologies, and as long as the 
>> cognitive dissonance created by the meeting of the two is infrequent or 
>> hidden. 
>> 
>> In a previous note, I mentioned that the issue with MAPO for the US 
>> Government and other governments is that "morality and public order" is in 
>> international treaties an *exception* process, not an affirmative global 
>> definition.
>> 
>> So why not, you may ask, use the obvious solution, which is to use exactly 
>> that exceptions process and build up a system whereby national governments 
>> can "opt out" of TLDs they don't like?  I think we will get there, but we 
>> have to deal with the problem that this PRACTICAL solution isn't easy to 
>> square with the IDEOLOGICAL constraints that bind both ICANN and government 
>> players. 
>> 
>> ICANN's ideology is that there is "one world, one Internet, everyone 
>> connected."   While that's Rod Beckstrom's phrase, it's a fair encapsulation 
>> of an ideal that motivates a lot of people in ICANN, including myself.   
>> It's also readily apparent that there are many exceptions to this ideal, 
>> which are never mentioned -- they are the crazy cousins kept in the attic 
>> that nobody talks about.  One example that should be useful for this 
>> discussion is the widespread blocking of second-level domain names (and 
>> websites) by the Chinese government; another would be the creation of 
>> pseudo-TLDs that exist with a tenuous connection to the global root, or with 
>> no connection at all.  
>> 
>> So ICANN's ideology does not allow opt-out from global standards -- that way 
>> lies chaos, this line of thinking goes -- even though there are already 
>> plenty of exceptions and they Internet hasn't collapsed yet.   
>> 
>> The US Government has a few ideal/ideologies that it regularly flouts, 
>> although the sophistry involved in explaining why is a great deal more 
>> evolved and sophisticated than anything ICANN has come up with.  You will 
>> note (as an example) that the US Gov't representative isn't taking a stand 
>> to defend the first amendment right to freedom of speech.  In fairness, just 
>> as there are no global standards of morality, neither does the US 
>> constitution cover non-US citizens outside the US.  But still...
>> 
>> In reality, what the US government and many other governments want is a 
>> choke-point to make sure nothing bad happens.  They don't know what that bad 
>> thing might be (think Rumsfeld's "unknown unknowns"), but they do know that 
>> a bad decision could have major implications for global communications 
>> policy and diplomacy generally.  Right now, thanks to the Affirmation of 
>> Commitments, the US has placated other governments who want to have a say in 
>> DNS matters by changing its status from "we decide" to "first among equals" 
>> -- or so it seems on paper.  But if the actions of ICANN lead to new TLDs 
>> that are offensive to other countries, those countries are going to once 
>> again challenge the hegemony of the US and its allies in DNS matters.  
>> 
>> So despite the "nice ideal" of free speech, what governments really want is 
>> a way to provide adult -- i.e., government --  supervision to ICANN.  But 
>> they can't say that without really causing a ruckus within ICANN.   That's 
>> why the GAC refuses to come up with a plan of their own. 
>> 
>> The opt-out solution probably provides a PRACTICAL solution for both ICANN 
>> and governments.  It does not, however, provide a PRINCIPLED approach that 
>> either party could sign on to.  (The problem with the "distinguished 
>> international jurist" approach embodied in the current MOPO proposal is that 
>> these lawyers might come up with something that works in principle but is a 
>> disaster from a practical standpoint.  From the governments' point of view, 
>> the risk is too great.)
>> 
>> To me, the way forward is clear.  Suzanne Sene of the US Gov't even 
>> mentioned it, as an aside.  It was an aside because the US government 
>> doesn't want to be seen as promoting a particular solution.  Nonetheless, 
>> Suzanne is too good at her job to start talking nonsense: this was an 
>> unofficial suggestion. 
>> 
>> "So I did look at the geographic names approach, where there is a
>> proposal for a geographic names panel that will review all the strings
>> to see if they fall under that category, and started to try to think
>> out loud, I don't know if we might want to pursue this.  You know,
>> could you develop an approach for string review that might minimize
>> the potential that the new gTLD process would be overwhelmed with
>> possibly intractable disputes over sensitive strings that fall into
>> certain categories."
>> 
>> From where I sit, this is a good starting point.  A new panel, sufficiently 
>> large to include diverse membership, would restore a political element to 
>> the decision that would allow governments to exert pressure to prevent a 
>> "bad" decision, but would shield them from being blamed from interfering.   
>> Likewise, ICANN can claim that the "community" made the decision.  And if a 
>> few governments still didn't like a TLD, well then, they could block it, 
>> just as China blocks second-level domains today. 
>> 
>> I think that something like this is the only way to bring the ideals and the 
>> practicalities together under one roof.  Is it ideal?  Certainly not.  Is it 
>> practical?  Eminently.
>> 
>> Antony
>