Reviewing ICANN’s GNSO report on introduction of new gTLDs

[TechNewsReview comment, with Dan Krimm response below] In August 2007 ICANN launched a consultation paper on new top level domains, encouraging input. Areas where comment was requested included:

  • the package of principles, proposed policy recommendations and implementation guidelines for new gTLDs
  • the selection criteria for new TLDs related to applicants, strings, and processes
  • contractual conditions for new TLD operators
  • proposed procedures for resolving objections to strings or applicants.

Reading through the paper I find little of controversy, although Keep the Core Neutral (KTCN) has raised one area that deserves discussion. This relates to recommendation six and reads:
Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).In their discussion on this, KTCN unfortunately refers only to “morality and public order”. I think it is important that the entire sentence be referred to, this being, “Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.”I think this makes ‘some’ difference. I think KTCN’s objection to this is a very American free speech issue and fails to take into account differing values around the world. However that said, to try and balance different values from different cultures, religions and countries is nigh on impossible. Not being a lawyer, I’d be happy to hear comments on this and what would be “recognized under international principles of law.”Further reading and there is a discussion of recommendation six that says the recommendation was “supported by all GNSO Constituencies except the Noncommercial Users’ Constituency (NCUC).” NCUC’s comments are worth a read, and in part, say:
Our overall concern remains that despite platitudes to certain, transparent and predictable criteria — the GNSO’s draft recommendations create arbitrary vetoes and excessive challenges to applications. There are some for incumbents; for trademark rights holders; for the easily offended, for repressive governments and worst of all, for “the public”. It’s a wolf in sheep’s clothing. A recipe for irregularity, discretion and uncertainty in the new domain name space.Among the more troubling proposals is the introduction of criteria in which strings must be ‘morally’ acceptable and not contrary to ‘public order’ (Recommendation #6). A concept borrowed from trademark law without precedent in the regulation of non-commercial speech. NCUC opposes any string criteria related to ‘morality’ or ‘public order’ as beyond ICANN’s technical mandate.Further, the NCUC says “ICANN should stick to its technical remit, which it risks grossly exceeding here.”Avri Doria also submitted individual comments and says:
…My primary concern focuses on the term ‘morality’. While public order is frequently codified in national laws and occasionally in international law and conventions, the definition of what constitutes morality is not generally codified, and when it is, I believe it could be referenced as public order. This concern is related to the broad set of definitions used in the world to define morality. By including morality in the list of allowable exclusions we have made the possible exclusion list indefinitely large and have subjected the process to the consideration of all possible religious and ethical systems. ICANN or the panel of reviewers will also have to decide between different sets of moral principles, e.g, a morality that holds that people should be free to express themselves in all forms of media and those who believe that people should be free from exposure to any expression that is prohibited by their faith or moral principles. This recommendation will also subject the process to the fashion and occasional demagoguery of political correctness. I do not understand how ICANN or any expert panel will be able to judge that something should be excluded based on reasons of morality without defining, at least de-facto, an ICANN definition of morality? And while I am not a strict constructionist and sometimes allow for the broader interpretation of ICANN’s mission, I do not believe it includes the definition of a system of morality.I don’t disagree with the concerns of the NCUC or Avri Doria, but I think this is an area that requires further debate.The consultation paper warrants a detailed read and consideration of all recommendations by those with an interest in the topic, not just recommendation six that KTCN has focussed on. And informed comments will only add to the debate, and hopefully better policy.Anyone wishing to comment, feel free to contact me by email, and I’m happy to post your comments on my website if so desired. Email comments toFurther, ICANN wants your views too. And instead of signing a petition such as that by KTCN, which is rather meaningless, write your own comments after reading the GNSO’s Final Report.Dan Krimm, Keep the Core Neutral, replies:
Thanks for being interested in this and sharing it with your readers, David. As Campaign Director for KTCN, let me clarify a few points.With reference to the morality and public order criteria in recommendation 6, you say: “I think KTCN’s objection to this is a very American free speech issue and fails to take into account differing values around the world.”Two points in response:(1) The freedom of expression precedent that we appeal to is in the Universal Declaration of Human Rights, Article 19. While it is also true that the US Constitution has a famous provision for freedom of speech in its First Amendment in the Bill of Rights, it seems an overstatement to say that freedom of expression is purely an American idea. This is a concept that has broad appeal around the world, if not everywhere.(2) The whole point of our objection here is that, by having ICANN make censorship decisions for the whole world with what *must* amount to a one-size-fits-all policy, ICANN itself would necessarily fail to take into account differing values around the world. There simply *are* no “generally accepted legal norms relating to morality and public order that are recognized under international principles of law.” However, it seems as if ICANN might try to fabricate such nonexistent consensus norms out of thin air, and then impose them on the entire globe.Our position here is that ICANN should simply stay out of it and let nations (or other local communities, or perhaps individual end users) make their own decisions about censorship of gTLDs (or anything else on the Internet) without imposing those choices on others around the world. If ICANN declines to censor, others still can. But if ICANN censors, others cannot undo that action. It is simply inaccurate to suggest that ICANN would *impose* anything on anyone by *declining* to reject the creation of a new gTLD that offends somebody. We have argued against this idea on our Myth Busters page, but it bears repeating.Thanks for helping to spread information about the public comment period. We do think our petition might be useful in addition to public comments (even if our method of delivery to the ICANN Board in Los Angeles this fall is outside the formal policy-making processes of ICANN), and we have a broad coalition of estimable organizations that provide some weight in the aggregate.So, we encourage individual people to sign the petition and join our coalition, if they approve of the message and the mission. But right now we’d really like to encourage people to submit their comments to ICANN while the door is open (until 30 August).Regards,Dan

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