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Some observations and recommendations on the Recommendation Number Six Cross-Working Group Report

  • To: cwg-report-rec6@xxxxxxxxx
  • Subject: Some observations and recommendations on the Recommendation Number Six Cross-Working Group Report
  • From: Paul Twomey <paul.twomey@xxxxxxxxxxxxxxx>
  • Date: Sat, 23 Oct 2010 15:43:44 +1100

I wish to congratulate all the members of the Recommendation Number Six Cross-Working Group on their work in producing this report.

The implication of issues falling within the broader arena of "morality and public order" has been a topic that has taken a lot of my attention throughout my participation in ICANN. They emerged during discussions of the first round of new gTLDs in 2001 when I was chair of the Governmental Advisory Committee. Of course these are issues I considered as President and CEO during the next rounds of new TLDs, particularly during the earlier days of the policy process now coming to a conclusion for a broad framework for new gTLDs.

These are important, but not easy topics. The members of the working group are to be congratulated on the process and the substantive way forward they have suggested.

I wish to make some observations and recommendations which I hope may further contribute to improving the proposed implementation plan for Recommendation Number Six as described in the Draft Applicant Guidebook version 4.

In making these observations and recommendations I am drawing on experience in the public policy arena of the GAC, the broader Internet Governance discussions, and also more than a decade of observing and interacting with the contracting parties and the other third-party commercial interests whose objective, means, and tactics within the ICANN environment are often complex.

The observations are as follows:

*Recommendation 1*

I support changing the name of the objection. I would recommend the phrase "Objection Based on General Principles of International Law". My reasoning to support this is below in Recommendation 2.3.

*Recommendation 2.1*

I support the proposal to add other treaties as examples in the draft applicant guidebook

*Recommendations 2.3 and 3.3*

As having been a spokesperson for the members of the Governmental Advisory Committee for years, I am very conscious of the sensitivities and importance of public policy. But I am also conscious of the need to have in place a regime which supports a globally interoperable Internet and supports transparency and accountability to principles of International Law.

_Keep the language tight: "National Law"_

For stability and clarity reasons -- to both potential gTLD applicants and to other governments -- it is important that any notification or objection considered under this recommendation be limited to "that a proposed TLD string is contrary to the national law". In some of the recommendation language in the working group report the phrase "government's perceived national interest" is used. It is important to delineate that this is not the same thing as national law. Law is the considered expression of a government -- either through executive, parliamentary of judicial structured mechanisms. Other phrases such as "perceived national interest" reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase "public policy". I remember a GAC member many years ago stating that "public policy is anything I decide it is". While this is may be suitable for that official in that jurisdiction, I do not think it is the intention of the Working Group to have such an uncertain basis as the standard for this Recommendation.

Consequently, I would suggest that the recommendation limit its language to "national law". So that the Recommendation no 2.3 on page 37 of this report would read:

*"Recommendation No. 2.3*: The Applicant Guidebook should allow individual governments to file a notification (not an objection) that a proposed TLD string is contrary to their national law. The intention is that an "objection" indicates intent to block, but a "notification" is not an attempt to block, but a notification to the applicant and the public that the proposed string is contrary to the government's national law. However, a national law objection by itself should not provide sufficient basis for a decision to deny a TLD application. "

_Avoid unintended incentives and consequences: Keep the link to "principles of international law"_

I support the recommendation that the "Applicant Guidebook should *not* include as a valid ground for a Recommendation 6 objection, an objection by an individual government based on national public interest concerns that are specified by the objection government as being contrary to national laws [which as I argued above should be changed simply to "an objection as being contrary to national law"] which is contrary to the principles of international law."

One of my concerns is that without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

The history of international tax administration, international corporate governance, anti-money laundering enforcement, and trade in illicit goods has shown repeatedly that sometimes in small jurisdictions, with weak governance and transparency institutions, moneyed interests have been able to get laws passed which serve their secrecy, tax interests, and/or illicit objectives.

The Board of ICANN should be very careful not to inadvertently put an incentive in the new gTLD rules which could see the same behaviour be applied to the Domain Name System. I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

It is important, therefore, that any notification or objection under Recommendations 6 should only derive from a national law which is in accordance with the principle of international law. I am sure the community does not want to see a series of laws in one country designed to stop or significantly retard a set gTLD strings simply to serve the interests of a competitor. The link to principles of international law is one way to make such bespoke law less likely.

There are of course human rights and other reasons for the maintenance of such a linkage. I note that many in the ICANN community have made this point. Indeed I note that as early as March 2007, the GAC principles on new gTLDs affirmed that the role of International law. Specifically,

2.1 New gTLDs should respect: (a) The provisions of the Universal Declaration of Human Rights which seek to affirm "fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women".

For similar reasons, I support the Working Group's Recommendation 3.2.

_Balance between National Law and Veto_

While recognizing the importance and validity concern of a national government can pay run counter to a national law I think both ICANN's bylaws and the consideration of the Working Group would inform the ICANN Board that it should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group.

Consequently I would be supportive of the recommendation that individual governments file a notification rather than an objection that a proposed TLD is contrary to their national law.

*Recommendations 3.1, 3.2, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.1, 5.2, 5.3*

I support these Recommendations without comment.

*Recommendations 6.1 and 7.1*

* *

I support the amendments proposed by the working group to these tow Recommendations in particular new language of "incitement to an instigation of".

_ _

_Don't inadvertently undermine the Community TLD provisions of the Draft Applicant Guidebook_

I would assume that neither the Working Group nor the ICANN Board would intend these new recommendations to inadvertently counter the objectives and operations of the community-based rules for new gTLDs.

Imagine that a Trade Union Association was to apply for a TLD .tradeunion, as a Community TLD, which was dedicated to serve trade unions as registrants. It would be perverse if, for instance, an Employers Association, not eligible for a domain name in the.tradeunion TLD according to its Community rules, were to use the discrimination criteria under these Recommendations to argue that because it cannot be a registrant the .tradeunion TLD should not be awarded because it incites and instigates discrimination based on political opinion.

I would suggest that for clarity purposes it would be useful to state that the mere limitation of who can be a registrant (i.e. proof of being a member of the community) under a community TLD is not sufficient to trigger an objection under the incitement to and instigation of discrimination provisions envisaged here.

*Recommendations 8.1*

* *

I support that the experts should conduct their analysis on the basis of the string itself, but could, if needed, us as additional context the intended purpose of the TLD as stated in the application. This is a common approach for interpreting many items, including language in contracts and even the meaning of wording in legislation.

*Recommendations 9.1*

* *

I agree strongly with the Working Group that

"Blocking of TLDS should remain exceptional and be established by due legal process. The group also recognized that reduced blocking of TLDs is of little value if the result is that the opportunity to create new TLDs is unduly constrained by an objection process. The absence of blocking is of little value if it creates a name space that does not reflect the true diversity of ideas, cultures and views on the Internet. "

*Recommendations 10.1, 10.2, 11.2, 11.3*

I support these Recommendations without comment.

* *

*Recommendations 11.1*

While generally being supportive of processes which encourage parties to mitigate possibilities of conflict, I fear any mandated requirement to make an applicant identify and consult prior to an application with interested parties who may be concerned under these provisions may result in unforeseen legal and personal safety issues. Particularly in areas related to internationally recognized human rights, I think it is best that the Board does not mandate such prior communications.

* *

*Recommendations 12.1, 12.2, 12.3, 13.1, 14.1*

I support these Recommendations without comment.

* *

* *

Thank you for the opportunity to provide detailed comments on the fine efforts of the Working Group. I hope that these comments will be considered carefully and be of value as ICANN moves to improve the gTLD Applicant Guidebook.

Yours sincerely,

Paul Twomey

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