Re: [soac-mapo] Another proposal for discussion...

[Robin Gross <robin@xxxxxxxxxxxxx>]

A few thoughts on the proposal that has been discussed:

I like the proposal of jurists providing the board with independent  
advice on whether a string is universally and unambiguously repugnant  
before the board makes the final decision.  The decision needs to  
rest with the board for accountability purposes.   The ICC is not the  
appropriate body to be making MAPO recommendations to the board.
I think it is important to have a high threshold vote of the board  
before a string can be rejected - like 2/3 or 3/4 must disapprove of  
it.  But we should not want to re-open the decision after the board  
has voted with public comments or 'community arbitration', etc.    
(I'm intrigued by the idea to appeal to an international court, but  
am not sure what would be the right court).
I definitely do not support adding "sensitivities" to this list of  
objections because that is when we get into ambiguous and subjective  
judgments.  Plus "sensitivities" can easily be objected to under the  
separate "community" objection process.
It is important that the MAPO determinations be about the string  
itself and not the site's content or the people applying for the string.
Thanks,
Robin



On Sep 2, 2010, at 10:54 AM, Konstantinos Komaitis wrote:

> I think that this proposal makes sense and contributes  
> substantially to our discussions. Some comments from my point of view.
>
>  1.  Other Objections - although I think that changing the names  
> will certainly create less problems, I think that this is too  
> general. Anything can fall under 'other objection'. Perhaps we can  
> add something like "other objections related to issues of human  
> rights or criminal activities".
>  2.  I am not sure I feel comfortable with just the ICANN Board  
> being involved in making recommendations. Although I feel that the  
> Board should be involved in the whole process, I also feel that  
> there needs to be at the side an independent review panel that also  
> makes its determinations. A long time ago, before this group was  
> officially formalized, I proposed the following in the mailing  
> list: a 'review panel', limited to only provide recommendations  
> about names. The panel will be comprised of experts in  
> international/criminal law (jurists, academics, etc), will have to  
> be divergent to correspond to issues of geopolitics, religion, etc  
> and will provide recommendations. The idea is here more or less  
> with what Richard proposed for a DRSP, but I would like to see us  
> moving away from the ICC or similar idea.
>  3.  Appeal: I am really much in favor of having an appellate  
> process in place as this will certainly contribute towards building  
> trust in the whole system and will legitimize the process. I can  
> only think of two bodies that could undertake such a function and  
> which have the authority to make such decisions - the European  
> Court of Human Rights or the International Criminal court  
> (depending on the basis of the objection - human rights vs criminal  
> activities).
> Apologies if this all sounds too legal, but I am trying to think of  
> ways that we can have such objections whilst conforming with basic  
> standards of law.
> Best
>
> KK
>
>
> On 01/09/2010 22:33, "Richard Tindal" <richardtindal@xxxxxx> wrote:
>
> All,
>
> Here is a proposal (four concepts) for discussion.
>
> I've tried to keep it as close as possible to the framework of the  
> current DAG,  while addressing some of the concerns raised:
> 1.  Re-title this portion of Module 3  'Other Objections'  (rather  
> than 'Morality and Public Order Objections').
> I think it's very hard to find the right words to categorize this  
> type of objection, and I don't think the title adds value to the  
> process.   What really matters is the standard we decide, and the  
> mechanism that makes use of the standard.   I don't think we need a  
> specific title.
> 2.  Change the fourth element in the current, four part Objection  
> standard (in DAG 3.4.3) to the following:
> "An application may raise national, cultural, geographic, religious  
> or linguistic concerns. If objected to, such applications will be  
> reviewed by the ICANN Board which will consider the string, the  
> applicant and the intended purpose as well as any comments  
> regarding the application, including comments from the GAC,  
> individual GAC members and other ICANN SO/ACs.
> Applications found by the Board, in its view, to be highly and  
> unambiguously offensive, profoundly objectionable and without  
> redeeming public value will be rejected.  In making this  
> determination the Board may also seek opinion from the Dispute  
> Resolution Service Provider (DRSP) regarding any relevant laws or  
> broadly accepted societal norms or conventions".
> Note:   I am proposing here that any objection based on the fourth  
> standard go directly to the Board, rather than through the DRSP  
> (though the Board may seek the DRSP's opinion).
> 3.  Require the Board to Supermajority (two thirds) approve any  
> rejection of an application.
> I propose that this supermajority requirement apply to rejections  
> based on any of the four standards,  not just the 4th one (above).
> 4.  Appeal mechanism
> A right of appeal process should be included
>
> RT



IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx