+1 --c.a. On 12/10/2010 02:49 PM, Nicolas Adam 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 >