Re: [soac-mapo] GAC position

[Richard Tindal <richardtindal@xxxxxx>]

Thanks for this Konstantinos.    I think you've captured very well the basis of 
the GAC's stated opposition to DAG MAPO language  (not just the GAC but also 
others criticize the DAG on this basis).   

Also, I apologize on behalf of GNSO participants that your viewpoint  was not 
given proper airing in the session in Brussels.  I think most people in the 
room didn't understand the important legal basis of the argument you presented.

Like Antony, however,   I believe there is more to the GAC position than is 
clear from their specific objections to MOPO.   Reading back over their various 
Communiques/  New gTLD Principles,  and talking with some GAC members, it seems 
clear they want a mechanism that accommodates  "sensitivities regarding terms 
with national, cultural, geographic and religious significance”.    This is a 
broader standard than morality and public order.   For example, .BUDDHA would 
probably not fall foul of the DAG MOPO language,  yet I suspect the GAC would 
prefer a mechanism where not just anyone could obtain that string.

I think the Staff have been understandably challenged in turning GAC guidance 
regarding 'sensitivities' into a practical, process language.   It is also 
somewhat outside the GNSO Implementation Guidelines.

In summary,  I think morality and public order is just one piece of the GAC's 
motivation here.    I think they are concerned about strings with religious, 
national, cultural and geographic significance,  and MOPO is just a piece of 
the pie.     I also think the GAC is unlikely to retreat on this issue --  so 
if we can find a reasonable and practical way to accommodate their wishes I 
would like to do that.  

RT



On Jul 13, 2010, at 8:52 AM, Konstantinos Komaitis wrote:

> 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> 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> 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
>  
>  
>  
>  
> 
>