FW: RE: [soac-mapo] Antony's proposed Quick Look procedure

[Glen de Saint Géry <Glen@xxxxxxxxx>]

Forwarded From: Mary Wong
Glen de Saint Géry
GNSO Secretariat
gnso.secretariat@xxxxxxxxxxxxxx<mailto:gnso.secretariat@xxxxxxxxxxxxxx>
http://gnso.icann.org

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• To: Stuart Lawley <stuart@xxxxxxxxxx>, Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>, Milton L Mueller <mueller@xxxxxxx>
• Subject: RE: [soac-mapo] Antony's proposed Quick Look procedure
• From: Mary Wong <Mary.Wong@xxxxxxxxxxx>
• Date: Tue, 31 Aug 2010 12:45:16 -0700

I agree - Antony's suggestions are a great basis for a more reasonable and 
clearer Quick Look procedure.

On the question of the "semi-universal taboo" standard that would apply, it 
seems to me preferable to restrict the enquiry to principles of international 
law, rather than engage in a broader, vaguer and more problematic quest for 
"morality" norms. The former can be found in treaties (i.e. "hard law" such as 
the treaties already referenced by the existing ICANN documents) and in "soft 
law" (e.g. customs and other "legal norms" - the phrase used in GNSO Rec 6 - 
rather than more subjective "cultural" or "moral" norms or "sensitivities").

On the role of experts, instead of constituting a panel, one or more eminent 
jurists/judges from the international law arena (such as those ICANN staff 
consulted for background research) could be appointed for both the Quick Look 
and to give a legal opinion as to whether the string itself contravenes 
generally recognized principles of international law (as described above).

If the expert consultation is in the form of an opinion rather than as a 
formally-constituted panel, there would be no need to provide for a formal 
avenue of appeal (as would be advisable if it were - as it is now - a panel 
decision). This would also reinforce the point others have made, that it would 
be the Board's responsibility to make difficult decisions. In addition, asking 
for an expert opinion, upon which the Board would have to act one way or the 
other, would also not amount to ICANN (a private corporation) setting up a 
dispute mechanism that mimics - but falls short of - the established public 
international law framework of international courts and nation-state disputes.

Cheers
Mary



Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@xxxxxxxxxxx<mailto:mary.wong@xxxxxxxxxxx>
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: 
http://ssrn.com/author=437584


>>>
From:   Milton L Mueller <mueller@xxxxxxx>
To:      Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>, Stuart Lawley 
<stuart@xxxxxxxxxx>
CC:      Bertrand de La Chapelle <bdelachapelle@xxxxxxxxx>, 
"soac-mapo@xxxxxxxxx" <soac-mapo@xxxxxxxxx>, "Gomes, Chuck" 
<cgomes@xxxxxxxxxxxx>, CherylLangdon-Orr <langdonorr@xxxxxxxxx>, Frank March 
<Frank.march@xxxxxxxxxxx>, "Heather.Dryden@xxxxxxxx" <Heather.Dryden@xxxxxxxx>
Date:   8/31/2010 3:21 PM
Subject:        RE: [soac-mapo] On "universal resolvability" and useful 
questions that emerged yesterday

This is a very good enumeration of the criteria that could and should be used 
in a quick-look, Antony. ICANN staff, take note.



A reasonable standard to me at this point looks like this:



-- Does the existence of the string itself incite people to violence, religious 
intolerance, pedophilia, cannibalism, or whatever semi-universal taboo we 
enumerate ?

-- Does the applicant or its principals have a proven history of trying to 
incite such things?

-- Is the meaning of the string unambiguous (there are no other innocent uses 
for it)?



If the "quick look" answer to all these three questions is yes, then it should 
go to a broad-based panel, which might include outside experts.  Upon this 
panel's recommendation to the Board to reject the TLD, the Board may block the 
application by a supermajority vote.  This procedure should happen early in the 
process so that no-one is put through the Seven Years of Hell that Stuart went 
through.  This process should be separate and independent of objections on 
other grounds.



However, as I argued yesterday on the call, I hope you forget about the “panel 
of experts.” There is very little “expertise” to come into play here, it is 
mainly about values. The Board should be directly and unambiguously responsible 
for any censorship of TLDs, and its decisions doing so must surmount a 
supermajority requirement.

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