[soac-mapo] A proposal: GLOS

[Evan Leibovitch <evan@xxxxxxxxx>]

Hello everyone.

I have been reading many of the dialogues on this list with great interest.
But I've not been participating because I've been working on an approach
that I would like to suggest as worth trying. It allows for both
identification (without limit) of objectionable strings and a commitment to
freedom of expression. Moreover, it reduces ICANN's legal exposure while
proposing a process that less complex, less time consuming, and less costly
than the one currently in the DAG. And, best of all, ICANN has already used
this approach in another contentious context.

The germ of this idea came out of my reaction to some of Antony's comments
from Monday, I will provide detail if there is intrerest in the history. But
for now I will simply introduce this proposal, which I call "GLOS" (at least
as a working title).


GLOS is an abbreviation for "Global List of Objectionable Strings"

1) GLOS would be a database populated with a list of strings that parties
(both governmental and non-governmental) may deem harmful or objectionable
to their members or citizens. The database could be operated by ICANN or an
external services provider on its behalf.

2) For each registered string, the submitter would indicate whether it is:
- universally objectionable (ie, under any circumstances)
- conditionally objectionable (ie, possibly objectionable depending on the
applicant and/or the TLD's stated purpose)
- sufficiently objectionable that the country would likely increase
police/security surveillance of the TLD (and possibly its subdomains)
- sufficiently objectionable that the country would likely block access to
the string should it be approved
- sufficiently objectionable that the TLD's owners, operators and/or local
agents may be subject to prosecution under local law
- sufficiently objectionable that the TLD may be the subject of boycotts,
civil lawsuits or other community action
- other details TBD

3) Each string entry in GLOS would be unique and discrete. That is, the
existence of a string in GLOS explicitly does not allow imply that any
translation, derivative or version in other IDN encodings is also
objectionable.

4) Every TLD application would undergo a mandatory check against GLOS early
in its application process, with the results being made publicly available.
Such a report would make clear to any applicant (as well as its
stakeholders/sponsors and service providers) the potential risks of extra
scrutiny, prosecution risk and/or restricted audiences and markets. An
applicant would know in advance how likely (and widely) they would be
opposed should they proceed.

5) Having presented the report to the applicant (who must acknowledge
receipt and awareness before proceeding further in the approval process),
ICANN itself will not introduce any further obstacles to the application
based on content and makes no judgement on acceptability. The applicant can
proceed with the rest of the application process but is well aware of any
risks that lie ahead.

6) Cost of maintaining the database is primarily borne by those entities
that create entries in GLOS, preferably on a cost-per-entry basis. This
provides a disincentive against large numbers of frivolous entries and
prevents the database from growing stale (since every entry is renewed at
intervals)

7) ICANN will track and regularly publish data regarding the global blocking
of TLDs. This will assist applicants and the public by providing a
transparent view of any potential sources of instability, and will also note
(without judgement) countries that opaquely bar strings without listing
their objections on GLOS. While ICANN cannot force or influence governments,
it can perform its mandare by educating the public and calling attention to
potential problem areas. This allows stakeholders to hold their own
governments and institutions accountable.

8) Non-national-government organizations (religious bodies, cultural
organisations, human rights agencies, regional/provincial governments, etc)
may also add entries to the GLOS; however, they must also bear appropriate
costs and will obviously lack the blocking and prosecution remedies of
national governments.


In summary, in the context of MAPO I believe that ICANN can best serve its
many communities in an advisory role rather than a judgemental one. Let all
applicants know if their proposed strings offer a potential for trouble,
then allow them to proceed as they wish. Probably most applicants will
withdraw once they see that their proposal will lead to major restrictions
in their potential audience, or even their own possible arrest; maybe their
sponsors/investors will force them to reconsider a tamer approach. However,
if provocation is exactly what the applicant wants, they will be aware of
the consequences.

This also allows for far more of a bottom-up process than we have been
discussing to date. The ability to submit objectionable strings is not
limited to national governments. The applicant must evaluate both the source
and severity of objections listed when considering the GLOS advisory report.

It also IMO has the potential to minimize ICANN's legal exposure. Not only
is ICANN completely staying out of the role of comparing relative morality,
it is providing warning to applicants intended to prevent their own legal
and other consequences.

The existing ICANN approach of this kind to which I was referring is the
Trademark Clearinghouse, which also acts in an advisory role and may not in
it own capacity prevent any TLD from bring created. There are significant
differences between it and GLOS  -- it relies on international treaty
whereas GLOS does not, and submitting entries to the Clearinghouse requires
evidence of entitlement. (By contrast, how does one prove "entitlement" to
be offended?) However, the point here is that ICANN has already demonstrated
a willingness to rely on processes which warn and educate applicants in
preference to mere regulation and restriction. It is proactive rather than
reactive, focusing on prevention rather than punishment.

We already know that countries that want to block will do so regardless of
how elaborate or objective ICANN's processes turn out to be. The principle
of universal accessibility of TLDs is already broken in current practice,
and ICANN really has no control over countries' sovereign capabilities.
Further, there is no punishment ICANN offer that is as harsh as jailing
someone who created a TLD judged hateful (amongst those countries with
hate-speech laws).

We have already realised that the determination of offensiveness is highly
subjective, often politically motivated, and can vary widely from country to
country, community to community, and even year to year. So let's cede
ultimate responsibility for judgements on objectionable strings to
governments -- where it rests anyway whether we like it or not -- and make
sure that ICANN help its applicants fully understand the risks of proposing
controversial TLDs while itself staying non-judgemental. Applicants (and the
greater community) must be clearly made aware that the determination and
fulfilment of the risks -- prosecution, surveillance, blocking, etc -- lie
out of ICANN's control.

Comments?

- Evan