great! On 12/10/10, Beau Brendler <[log in to unmask]> wrote: > The "Consumer Constituency/Interest-group" doesn't yet really have a > mechanism to endorse anything, so, in ad hoc fashion, I'll half-endorse it > and if Alex agrees, it's a whole. > > Milton has, I believe, been working with Evan Leibovitch on this, so I am > taking the liberty of cc'ing Evan, who in his new role as vice chair of > ALAC, may be able to persuade them to endorse it as well > > Beau > > > -----Original Message----- >>From: Avri Doria <[log in to unmask]> >>Sent: Dec 10, 2010 11:33 AM >>To: [log in to unmask] >>Subject: Re: Comments on the ICANN Proposed Final Version of the Applicant >> Guidebook >> >>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 > -- regards, Alex Gakuru http://www.mwenyeji.com Hosting, surprise yourself!