I would support NCUC and NCSG endorsing this statement. --------------------------------------- Brenden Kuerbis Internet Governance Project http://internetgovernance.org On Fri, Dec 10, 2010 at 11:49 AM, Nicolas Adam <[log in to unmask]>wrote: > I certainly agree. > Nicolas > > > On 12/10/2010 11:33 AM, Avri Doria wrote: > >> Milton, >> >> Thanks for forwarding this on. >> >> Does the NCSG, and/or the NCUC, and/or the NPOC, and/or the Consumer >> Constituency/Interest-group wish to endorse it? >> >> a. >> >> On 10 Dec 2010, at 10:59, Milton L Mueller wrote: >> >> The IGF Dynamic Coalition on Freedom of Expression has submitted these >>> comments to ICANN regarding the free expression issues raised by the >>> so-called “limited public interest” objection. >>> >>> From: Ben Wagner [mailto:[log in to unmask]] >>> Sent: Friday, December 10, 2010 10:27 AM >>> To: [log in to unmask] >>> Subject: Comments on the ICANN Proposed Final Version of the Applicant >>> Guidebook >>> >>> Comments on the ICANN Proposed Final Version of the Applicant Guidebook >>> >>> As the multistakeholder Dynamic Coalition for Freedom of Expression , >>> developed from the Internet Governance Forum, we wish to comment on Section >>> 3.4.3 of the Proposed Final Version of the Applicant Guidebook. >>> >>> Domain names are a form of expression on the Internet and have been >>> recognized as such by various court jurisdictions.[1] Moreover, censorship >>> or suspension of domain names is often triggered by the content on websites, >>> therefore we anticipate a risk that objections to new top level domains may >>> often be motivated by an attempt to suppress or restrict certain forms of >>> controversial or diverse expression. >>> >>> Freedom of expression is well recognized as a fundamental human right. >>> The leading instruments are the 1948 UN Declaration of Human Rights and the >>> International Covenant on Civil and Political Rights(ICCRP). Article 19 of >>> the UDHR, which is considered customary international laws and applies to >>> all countries states: >>> >>> Everyone has the right to freedom of opinion and expression; this right >>> includes freedom to hold opinions without interference and to seek, receive >>> and impart information and ideas through any media and regardless of >>> frontiers. >>> >>> Under international standards as set by the UN Human Rights Committee, >>> any limitations on freedom of expression must satisfy that the interference >>> is provided in law and is clear and accessible, the interference must pursue >>> a legitimate aim as set out under Article 19(3) of the ICCPR, and the >>> restrictions must be necessary and proportionate.[2] >>> >>> Objecting to a TLD string on the grounds of its meaning, or the content >>> that one expects to be associated with the domain, constitutes a form of >>> prior restraint on expression. Because the scope of ICANN's jurisdiction >>> over the domain name system is global, ICANN's TLD objection processes >>> constitute a precedent-setting form of global content regulation. Given a >>> well-recognized international right to freedom of expression, the criteria >>> used to suppress TLDs must be very narrowly circumscribed and the authority >>> must be used sparingly. Only those TLD strings that clearly violate >>> well-established international laws should be blocked under this provision. >>> >>> Section 3.4.3, currently titled "Limited Public Interest Objection," >>> allow various parties to object to the creation of a new top level domain >>> because "the applied-for gTLD string is contrary to general principles of >>> international law for morality and public order." >>> >>> We believe that the current version of the AG does not sufficiently >>> respect legitimate free expression rights. We encourage ICANN's board and >>> staff to make appropriate modifications in the final applicant guidebook. We >>> have the following concerns and propose a number of specific modifications. >>> >>> >>> 1. The title should be changed to "Objections based on general >>> principles of international law." The term "public interest" is too broad >>> and ill-defined, and lacks any firm basis in international law. Labeling the >>> class of objection "public interest" encourages parties to object to forms >>> of expression that they dislike or disapprove of, regardless of their status >>> under defined international law. We note that a cross-community working >>> group that included governments (GAC), business/civil society domain name >>> users and suppliers (GNSO) and internet users (ALAC) decisively rejected the >>> term "public interest" as a label for this category of objection precisely >>> for this reason. We ask ICANN staff to re-label this class of objection. >>> >>> 2. We note that numerous governments objected to inclusion of the >>> terms "morality and public order" as the basis for these objections. They >>> noted, correctly, that there is no global standard for morality and public >>> order, as different cultures and communities have radically different >>> standards. Here again, established international legal agreements are the >>> more appropriate standard to cite rather than "morality and public order." >>> We ask that the term "morality and public order" be stricken from the text. >>> E.g., on p. 3-18 staff should replace "contrary to generally accepted legal >>> norms relating to morality and public order that are recognized under >>> principles of international law" with "contrary to generally accepted >>> principles of international law." >>> >>> 3. The decision to censor a top level domain should not be >>> outsourced to a private "dispute resolution service provider" as proposed in >>> the Module 3 attachment. While we recognize the need for expert advice, we >>> believe that there should be clear lines of accountability for any decision >>> to suppress expression and that the ICANN board should make the decision >>> directly. We are concerned about the long term implications of outsourcing >>> such decisions to private DRSPs, who will tend to view dispute resolution as >>> a revenue stream and thus develop an incentive to encourage and facilitate >>> objections. We are also concerned about the lack of accountability inherent >>> in the use of a revolving panel of experts selected by a subcontractor of >>> ICANN. If the decisions are consistently wrong, what recourse do applicants >>> or free speech advocates have? >>> >>> 4. Should there be a DRSP, we believe that it is entirely >>> inappropriate for the International Chamber of Commerce (ICC) to serve as >>> the authority selecting experts for disputes involving basic human rights >>> such as freedom of expression. The ICC's International Centre for Expertise >>> is a money-making service offered by a business advocacy group. It has no >>> specific expertise or track record on freedom of expression issues. We >>> object strongly to the prospect of the human right to communicate being >>> adjudicated by this group. Various alternatives to the ICC were suggested >>> during the cross-community working group deliberations. >>> >>> 5. We are also deeply concerned about the "Independent Objector" >>> proposal. The Independent Objector seems to allow objections to be made on >>> an anonymous and unaccountable basis. We believe that the burden of proof >>> should always be on objectors to prove that a proposed top level domain name >>> is illegal; the default should be to allow diverse and even controversial >>> forms of expression. The existence of an Independent Objector seems to >>> encourage parties to make objections secretly and at no cost, which reverses >>> the proper burden of proof. >>> >>> >>> [1] In the U.S., see The Taubman Company v. Webfeats, et al. 319 F.3d >>> 770 (6th Cir., February 7, 2003), which stated "The rooftops of our past >>> have evolved into the internet domain names of our present. We find that >>> the domain name is a type of public expression, no different in scope than a >>> billboard or a pulpit, and Mishkoff has a First Amendment right to express >>> his opinion about Taubman, and as long as his speech is not commercially >>> misleading, the Lanham Act cannot be summoned to prevent it." In Canada, >>> (January 2001), a British Columbia court stated that "when a Web site is >>> used for expression in a labour relations dispute, as opposed to commercial >>> competition, there is... a reasonable balance that must be struck between >>> the legitimate protection of a party's intellectual property and... >>> [freedom] of expression." See also Article 19's analysis of the relationship >>> between domain name regulations and the International Covenant on Civil and >>> Political Rights. >>> http://www.article19.org/pdfs/analysis/kazakhstan-s-domain-names.pdf >>> >>> [2] Para.3 of General comment 10 on Article 19 of the ICCPR., Human >>> Rights Committee, (Nineteenth session, 1983), Compilation of General >>> Comments and General Recommendations, Adopted by Human Rights Treaty Bodies, >>> U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994). >>> >>> >>> The Dynamic Coalition on Freedom of Expression and Freedom of the Media >>> on the Internet, Internet Governance Forum. >>> >>> http://www.intgovforum.org/cms/dynamic-coalitions/75-foeonline >>> >> >