RE: [soac-mapo] charter and mission

[Konstantinos Komaitis <k.komaitis@xxxxxxxxxxxx>]

Dear all,

First of all, I think it is important to make a clear distinction. DAG's 
reference on 'morality and public order' was borrowed from the Paris Convention 
on the law of trademarks - the term as used in DAG it is not an explicit part 
of any public international law statute or convention. For me, this is the 
first mistake and demonstrates ICANN's ignorance on the problems that MAPO can 
potentially create.

Within the Paris Convention, the drafters of the Convention were wary of the 
fact that an international Trademarks' Treaty was not feasible. So, the 
Convention was created with the idea that any trademark owner who wanted to 
ensure international protection of his trademark would had to apply to each 
country separately, respecting at the same time the particularities and demands 
of the country's national laws. And, because of these very particularities, the 
framers of the Convention inserted the 'morality and public order provision in 
an effort to assure sovereign states that they still reserve the final word on 
which trademarks could allow and which could not.

The issue of MAPO within the new gTLDs is completely different as not all gTLDs 
are trademarkable; therefore, we have to realise that this phrase has been 
taken completely out of context and is being used in a wrong way.

In the context of international law there is really no objective standard in 
relation to morality and public order. Any sovereign state can raise objection, 
block free speech, suppress civil liberties, etc, but at the same time, such an 
action can be condemned if it is disproportionate and opposes international 
treaties and conventions, like the universal declaration of human rights, the 
international covenant on civil and political rights or the European convention 
of human rights. What I am trying to say is that there is really no 
straightforward answer to what constitutes morality and public order and no 
international lawyer will be able to give you one. Even within the western 
hemisphere these standards are different: take for instance the yahoo case with 
the Nazi memorabilia - although it concerned various issues, one of the 
arguments presented was that in France, reference to and promotion of Nazism 
was against morality and public order. In the US, this was protected by the 
First Amendment.

And, Milton is right. Under international law, in particular international 
criminal law, no word by itself can incite anyone to do anything. I was the one 
posing the question Milton refers to and was given the response of 
'.killthejews'. Still though this will not be enough to 'incite' - as Milton 
very correctly states, one will have to prove that the said domain name was 
registered with the intention to perform such an act. And because 'incitement' 
also includes the concept of perpetuality, one would also have to check the 
content.

So the question is what is the way forward. I think that the whole idea of MAPO 
should be removed from DAG. Based on the history of ICANN's dispute resolution 
mechanisms, I wouldn't trust any panel to perform a task that is normally 
assigned to jurists (those working in the European Court of Human Rights or the 
International Criminal Court) that interpret and delineate the boundaries of 
international law treaties, when seeking to ensure that neither the sovereignty 
of states nor the various international treaties are in jeopardy. As Mary has 
said, MAPO is an issue that falls completely outside ICANN's scope.

Konstantinos




Dr. Konstantinos Komaitis,
Law Lecturer,
Director of Postgraduate Instructional Courses
University of Strathclyde,
The Law School,
The Lord Hope Building,
141 St. James Road,
Glasgow, G4 0LT
UK
tel: +44 (0)141 548 4306
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765
Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: http://domainnamelaw.ning.com/


From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of 
Milton L Mueller
Sent: Monday, July 12, 2010 9:17 PM
To: soac-mapo@xxxxxxxxx
Subject: RE: [soac-mapo] charter and mission

I find all this talk of groups of a group vetting specific applications to be 
weirdly disconnected from reality.

Lets be honest and direct: if you propose something like that you are 
advocating a form of arbitrary censorship, which when applied is likely to be 
illegal in many jurisdictions - just as the absence of such censorship would be 
illegal or objectionable in others. Let's stop pretending that this problem 
doesn't exist, OK? No organizational arrangement or method of selecting people 
can get around the fact that standards differ across countries.

So who the group is a secondary matter. What matters first and foremost are the 
criteria used to censor or block names. Once you have the criteria, who applies 
it or how it is applied is a matter of implementation. An important detail, but 
a secondary matter.

So what should the criteria be?

The original DAG list is quite good in some respects, in that it is narrowly 
drafted. The problem, however, is that it is virtually impossible for a TLD 
string to "incite" anything, based on what the term "incitement" actually means 
when used as a legal standard.* You would have to show that the mere creation 
or implementation of a TLD string (not the content associated with it) was 
responsible for generating violent, lawless action, creating racial 
discrimination or sexual abuse of children. This would be very difficult, if 
not impossible.

Another, even more serious problem is that since incitement is already illegal, 
it is obvious that you don't need TLD restrictions to stop the kind of conduct 
or problems that are targeted. In other words, if someone applies for a TLD 
with <your favorite racial epithet here> and starts using it to incite, it 
would be illegal as can be under existing law in virtually every country I can 
think of.

So others are suggesting even broader standards - the "something I find 
objectionable" standard Tindal mentioned. This is clearly unacceptable. We can 
- and must - rule out any such "standard" immediately. To begin with, such a 
standard is literally illegal in about 2/3 of the Internet world (contravenes 
both the U.S. Constitution and the European Convention on Civil and Political 
rights). It may be inconsistent with other countries national constitutions as 
well. Therefore, there is literally no group you can select, or any method of 
selecting a group, that can implement such a standard in a lawful way.

* Some of you may have been present at the GNSO discussions in Brussels when a 
colleague of mine asserted that it was impossible for a tld string to incite 
and someone disagreed, saying ".kill the jews" was an example of such a string. 
Many people at the time thought this was a very clever comeback, and seemed to 
think the point had been refuted. But actually the opposite point was proven. 
The person who uttered those words was not inciting violence against Jews. He 
could never be prosecuted for uttering those words. He managed to say "kill the 
Jews" without anything bad happening and without anyone. Q.e.d. We simply don't 
need ICANN rules to protect ourselves against that kind of incitement. We are 
already protected against it by more more carefully drafted, narrowly 
applicable laws.



From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of 
Richard Tindal
Sent: Monday, July 12, 2010 12:25 PM
To: soac-mapo@xxxxxxxxx
Subject: Re: [soac-mapo] charter and mission

I agree with Avri, however I do think the expansiveness of the definition (the 
standard applied) is related to who is making the decision.

The tighter the standard the more comfortable I am with a smaller group making 
the decision.     The broader the standard the more I want to see a large group 
making it.

These are really the 2 issues every approach must determine   (actually,  every 
approach except the one proposed by Milton -- which is remove MOPO entirely).

1.     What standard will apply?;

2.     Who will make the decision?

It seems to me 2. is a little easier to decide that 1.      For 2. we could 
have the IO,  a Panel,  a suite of judges (per the DAG) or we could even have 
ICANN SO/ ACs make the decision.   There are pros and cons to each.

For me 1. is harder.   The standard could be very broad (e.g.  'something I 
find objectionable' )  to very specific (e.g.  a list),    or anything in 
between.

By way of background,   the current DAG has a attempted a sort of hybrid 
standard of specificity.     It has three, fairly specific standards:  (1)  
incitement to violent lawless action  (2) Incitement to or promotion of 
discrimination (race, color, gender, ethnicity, religion, national origin) ; 
and (3) Incitement for child pornography or other sexual abuse of children.     
 I haven't read any deep concerns about these standards.

The fourth standard in the DAG is more expansive though - (4)  contrary to 
norms recognized under principles of international law   (note:  my bold type). 
    This is the DAG standard that seems to be most objectionable to the GAC and 
some others.

RT




On Jul 12, 2010, at 6:51 AM, Avri Doria wrote:


Hi,

an intersting idea.

since an IO already exists, how about an IO with an advisory panel?  This would 
have difference sorts of specialists, and depending on the kind of string.  
Again like a RSTEP.

I have a problem with the expansiveness of our definitions however. and the 
fuzzing of the boundary between problems with a string (.burn-a-vampire-today) 
that is an incitement in itself, and a string (vampirelove) that might contain 
unsavory and unacceptable content.

a.






On 12 Jul 2010, at 08:56, Antony Van Couvering wrote:

Thanks Jon you did wonderfully :-)

An IO is one person, hence a lightning rod for conspiracy theories.  Also, one 
person, even of the utmost probity, has biases a broad-based group would not 
(though a group might have other biases).  That's why a panel might work better.

On the other hand, the IO position already exists.

Sent from my handheld.

On Jul 12, 2010, at 7:55, Jon Nevett <jon@xxxxxxxxxx<mailto:jon@xxxxxxxxxx>> 
wrote:


I can't speak for Antony, but I think that the approach he was taking issue 
with was the one Evan mentions directly below and not the IO process.  If not, 
I will.  I think that the IO objection process would be easier to implement 
than a banned list or a pre-application advisory process.  First, a list would 
require a whole lot of needless debate about names that no one would have 
applied for during the process.  Second, a pre-application advisory would not 
be able to take into account the applicant, the string, and the intended use.  
If it did, it would give these applicants an unfair advantage over other 
applicants that might be in a grey area on other issues (e.g. trademarks on the 
top level, string similarity, etc.).  Finally, we shouldn't be too worried 
about applicants (and their investors) who apply for a name that they know will 
be highly controversial.  They obviously will know that going in and there 
already is a partial refund available in DAG4 if they see that!
 their application got caught up in an objection process and they choose not to 
proceed.

Thanks.

Jon


other option raised during the GAC/At-Large meeting was inspired by the 
trademark clearinghouse. There could be an advisory process through which TLD 
applicants would know -- in advance of approval -- whether their string was 
likely to be blocked by countries once implemented. Based on that advice, a TLD 
applicant could withdraw or continue, knowing ahead of time that their string 
could cause problems being seen in some jurisdictions. An advisory process 
rather than an objection one preserves free expression, while ensuring that 
applicants (and their investors) are aware of national obstacles that may lie 
ahead.



On Jul 12, 2010, at 3:49 AM, Evan Leibovitch wrote:



On 12 July 2010 03:28, Antony Van Couvering 
<avc@xxxxxxxxxxxxxxxxxxxx<mailto:avc@xxxxxxxxxxxxxxxxxxxx>> wrote:
The issue with this approach is that the string itself may not be the issue -- 
I would contend that in most cases it would be the combination of the string 
and the applicant.  There is nothing wrong with the string "boy," for instance. 
 But there's a big difference between .boy operated by the Boy Scouts and .boy 
operated by NAMBLA.

On the contrary, that's the strength of the At-Large proposed approach. By 
putting such issues in the hands of the Independent Objector and offering 
sufficient leeway, context can matter as much as the literal string itself. 
Unanticipated problem applications can be objected to "on behalf of the public 
interest" by the IO rather than depending upon some external body (who? The Boy 
Scouts? A government? The Catholic Church?) to object to a NAMBLA-run registry 
".boy".

(Of course none of this prevents NAMBLA from purchasing second-level domains 
under .boy, but that's a different issue :-P)

Under a similar scenario mentioned in one of the meetings, even everyone's 
favourite example of  ".nazi" might be acceptable if it was proposed purely for 
academic study. But this, like the NAMBLA one, is a rhetorical device rather 
than a real-world proposal that will have to be confronted. That's the nice 
thing about having an IO process that's not tightly restricted ... that when 
real-world problem applications come up, we have a process suitably able to 
deal with it.

(In more recent versions of the DAG, certain undesirable restrictions were put 
on the IO that would inhibit the role's effectiveness in performing such a 
duty. However we can recommend changes that remove such limitations.)

- Evan