AW: [governance] RE: Human rights and new gTLDs
Kleinwächter, Wolfgang
wolfgang.kleinwaechter at medienkomm.uni-halle.de
Mon Oct 1 12:59:12 EDT 2007
Dear List
the basic contradiction here is the conflict between the global (boderless) nature of the cyberspace and the simple fact, that our world (so far) is organized via nation states and nation states do have according to the UN Charter the sovereign right to determine their own national legislation and to define what is legal and what is illegal (including information and communication rights and freedoms).
If it comes to the right to freedom of expression than we have on the one hand the universal right, defined in Article 19 of the Human Rights Declaration which has to be seen in the context of Article 29, which reaffirms the sovereign right of nation states to restrict this right to potect other rights and vague defined values like "national security", "public order", "public health " and "moral".
In each society you have conflicting values which has to be balanced by a national legislation. And you have also national taboos. Although we see the right to freedom of expression as the cornerstone of democracy in an universal sense, also democracies have legally defined restrictions and limitations (and taboos) in this field to protect the rights and reputations or the privacy of third persons are other cultural or non-cultural values.
In Germany - where the nazi government used freedom of the media, in particular the radio to spread racist propoganda which paved the way for killing six millions jews - it was very understandable that the fathers of the post WWII German Constitution agreed that nazi and racist propaganda has to be illegal and can not be justified by "freedom of speech". Other nations have other historical experiences and cultural values. This does not mean that there is censorship in these countries. In democracies there is always a possibility - in case of a conflict where one party feels that her/his constitutional right to freedom of expression is surpessed - to go to an independent court which will make a final decision after balancing the conflicting values.
The US courts have over the years produced the most radical interpretation of freedom of speech (I rememeber the the recent COPA case or from the late 1960s the case New York Times vs. President Nixon around the Pentagon papers where the argument of the US president was to stop the publication of the secret governmental papers because they would undermine the national security of the US, but the Supreme Court decided with 5 : 4 that the right to know of the people is a higher value). But also in the US there are numerous cases where - for various reasons - limitations are seen as justified. In classical textbooks you will find the story where it is said that to cry "fire" in a full packed theater - which would provoke a chaos and could risk the life of US citizens - would not be protected by the first amendement and its free speech part. An in 1916 or so one judge argued that in cases of "clear and present dangers" for life and property of US citizens limitations are justified.
The problem with non-democratic countries is that they do not have an independent judiciary. In these countries there is no neutral third party. The decison is made by an involved party which has the power to decide what is good for national security and where freedom of expression has to be stoppped. Such pratices are critisized in WSIS and elswhere as "violation of human rights", but power policy is power policy and if there is no consensus among the involved governments engaged in diplomatic negotiations the only thing you can reach is to agree to disagree.
I tell this very well known story just to make clear that we have here a dilemma that can not be solved, as long as we accept the sovereignty of nation states. The idea to have a global equivalent to a neutral independent court is - at least in 2007 - nonsens. Such a mechanism was proposed as part of the Geneva Broadcasting Convention from 1936 and failed totally. And I can only echo Milton in his comment for the GNSO Report that to have such a third party committee would allow all kind of horse trading behind the scene and would give such a commitee a "censorship right". Probably such a mechanism can be developed. But this will take time and a lot of innovative ideas (and trust).
With other words, you can NOT avoid a conflict about names in new gTLD. The two options you have is either you accept full censorship by a committee selected by ICANN, GAC or somebody else or you accept to have conflicts with one or more parties. The strategy I would propose is to have so many TLDs that at the end of the day nobody will remember all the names and it really doesn´t matter.
There are people in Germany which have the family name "Hitler". What can they do? What the govenrment can do? If drunken people in the Bierzelt of the Oktoberfest in Munich are crying "Hitler, Hitler" or "Juden raus" they will be punished by a German court. But what the government or a court can do with this man from the street who has this damned name of a criminal? Why this is seen nit as a problem? There are so many family names in Germany that nobody takes care if one has at his home the name plate "Hitler". Probably he has a painful life because a lof of people will ask him again and again whether he is the grandson of the "leader", but for the society this means nothing.
If we have so many gTLDs in cyberspace as we have family names in our real places, nobody will take care. And if one sovereign nation wants to hunt for names which are seen in their eyes as unacceptable, illegal or something else, the easiest thing they can do is to release a directive which obliges all ISPs at the territory of this country to block the whole TLD. What will happen? Some people will have no access to websites registered under this TLD, content providers, registered under this TLD, will look for additional domainnames in other domains to allow those people to access their content (if they want to reach these groups) and more experienced users will know how to bypass this official blockage.
What else? Cyberlife will continue, there will be more opportunities and more freedoms and also a little bit funny cat and mouse games :-))))
Wolfgang
>I refer to this only murderiof others. for and a democratic society
________________________________
Von: Lee McKnight [mailto:LMcKnigh at syr.edu]
Gesendet: Mo 01.10.2007 17:57
An: kierenmccarthy at gmail.com; governance at lists.cpsr.org
Betreff: RE: [governance] RE: Human rights and new gTLDs
Kieren,
Totally agree, auctions can be botched, and your examples are right on target. I recall being surprised when in a meeting with a major Euro telecom company back then, comparing my students 3G cost model to theirs....their model did not include infrastructure costs, ie the network, in deciding what price they should bid for the 3G spectrum. Oops. What's $12 billion here or there...
But easy to see people and firms do get caught up in the emotion of an auction and overpay.
That explains also why especially Euro governments were so afraid of the 'a' word at the time we were suggesting this method be used for gTLDs.
But the alternative is, I am afraid, endless arguments which cannot be objectively concluded. Kind of like this string on the list....
So the legal weather forecast for ICANN is showers of lawsuits...keep your umbrella up! Remains unclear to me that this is preferrable to a carefully crafted, regular and objective auction process, with set-aside safeguards for developing countries and ngo's, as we advocated. In fact I don't believe it is. And could say I expect inevitably ICANN will agree with me, in say another 5 years. But yeah I know nothing is truly inevitable...
Lee
Prof. Lee W. McKnight
School of Information Studies
Syracuse University
+1-315-443-6891office
+1-315-278-4392 mobile
>>> kierenmccarthy at gmail.com 10/1/2007 11:16 AM >>>
> I understand the auction method we advocated has been rejected
> for a beauty contest approach of picking winners and losers.
It seems this is a classic dilemma of our new digital times: how to allocate
new space in an uncertain market that *could* become worth a fortune.
My intrinsic bias is for auctioning because it is free market and it removes
the beauty contest ability for a small number of people to make important
decisions.
But I can think of two recent examples in the UK where the auction method
has proved disastrous.
The auctioning of 3G mobile licences provided the UK Treasury with over £20
billion - which was then promptly used to pay off national debt. But the
bidding only went so ridiculously high because all the companies were
worried that without a licence they would be out of business in five years.
The money paid was so large that the companies then couldn't afford to
produce the infrastructure or roll out the services. They have also upped
the prices of other non-3G phonecalls in order to recoup the money they
spent. So the consumer ends up paying more for less.
A second example was when a lot of WiMax spectrum was auctioned off region
by region. Because of the rules put in place, a lot of companies that won
the auction for their region then had little choice but to sell their
licence to a company that had carefully gobbled up the most profitable
sectors. One region refuse to sell and tried to run its own service but
after a few months, the economies of scale weren't there and it sold it up
as well - leading to some, including me, to posit whether it hadn't actually
launched a shoddy service just to be able to demand more money from the
acquisitive company.
The result was: a cut-price monopoly for a clever and aggressive company.
Who it seems may now end up not providing a consumer service at all because
there are other, more profitable, uses for the spectrum.
Maybe the lesson to be learnt is that auctions have to be just as carefully
reviewed and structured as the mechanisms that are put in place to keep
beauty-contest organisations on the straight and narrow.
Kieren
-----Original Message-----
From: Lee McKnight [mailto:LMcKnigh at syr.edu]
Sent: Monday, October 01, 2007 2:52 PM
To: kierenmccarthy at gmail.com; governance at lists.cpsr.org
Subject: RE: [governance] RE: Human rights and new gTLDs
Kieren,
I appreciate your engagement even if your use of the word 'inevitable'
was unfortunate; since very little is truly inevitable in the course of
human events.
As you may recall folks, including myself and Milton, have developed
and advocated 'regular, transparent and objectuve' procedures for gTLD
allocation for some time, and offered concrete suggestions on how those
could be implemented. As have the OECD.
I understand the auction method we advocated has been rejected for a
beauty contest approach of picking winners and losers.
As they say, beauty is in the eye of the beholder; best of luck to
ICANN implementing a 'regular, transparent and objective' method for
measuring beautiful gTLDs and not so beautiful gTLDs.
Lee
Prof. Lee W. McKnight
School of Information Studies
Syracuse University
+1-315-443-6891office
+1-315-278-4392 mobile
>>> kierenmccarthy at gmail.com 10/1/2007 9:36:37 AM >>>
> Yet, despite your mockery, that is more or less how we define
> censorship in the US. We even have a name for the false doctrine you
> approve of: "the heckler's veto"
I wasn't mocking anyone. And I don't think a reasonable review of what
I
wrote would reveal anything approaching mockery.
I admire your semantic efforts of "false doctrine" and "heckler's veto"
to
undermine a point of view without engaging on the actual points but
unfortunately all that leaves is one blinkered and aggressive response
to
one attempt at broader discussion and understanding.
And your attempt to argue that I am presenting the concept of "well
meaning
censorship" would be insulting if it wasn't so silly.
I think there are two broad points here:
* The Internet is global, and so any attempt to impose one prevailing
philosophy over it are doomed to failure. Everyone would do well to
remember
that.
* The approach to discourse that sees anyone with a dissenting view
attacked
with little or no effort to review what they actually said is never
going to
provide any useful conclusion, and so all its resulting fire and heat
will
end up being ignored.
Danny Younger actually makes an effort to engage in a later post I
see,
arguing that there is the possibility for a huge number of new gTLDs to
be
blocked.
I have to confess this is my concern as well - which is why it is vital
that
the actual mechanisms for deciding a new gTLD when it is queried is
where
the attention should be focused.
But all the while that the proponents of a far less
intellectual-property
view of the world spend shouting and refusing to engage, the more the
underlying system will take on the characteristics of those that seek
to
build, rather than impose, consensus.
Kieren
-----Original Message-----
From: Michael Froomkin - U.Miami School of Law
[mailto:froomkin at law.miami.edu]
Sent: Monday, October 01, 2007 1:48 PM
To: governance at lists.cpsr.org; Kieren McCarthy
Subject: RE: [governance] RE: Human rights and new gTLDs
On Mon, 1 Oct 2007, Kieren McCarthy wrote:
> You know, I have given these claims about human rights and new gTLDs
some
> consideration and I still just don't see the logic.
>
> Is it censorship to stop certain new gTLDs from being approved? In
one
> sense, yes. But only if you define censorship as stopping people
from
doing
> whatever they want despite the clear offence that will be taken by
others.
Yet, despite your mockery, that is more or less how we define
censorship
in the US. We even have a name for the false doctrine you approve of:
"the heckler's veto" (the doctrine that centralized authority can
suppress
speech because of its concern for a 3rd party's reaction) -- and we
VERY
strongly disapprove of it. That B claims offense *cannot* be allowed
to
muzzle A, or else A's *right* to speak is illusory.
The rest of your note proceeds under the assumption that it's somehow
not
cencorship if it's well meaning. It would be more persuasive to talk
of
'balancing' rights than to try to argue somehow that this isn't
censorship
when it clearly is.
To shift to a 'balancing' view does, however, require that one
articlute a
'right not to be offended' equal in value and weight to the right to
speak, and also equal in likely long run effect to the prophylactic
rule
that governments (or quasi-governmental entities for that matter) ought
not to be trusted to regulate speech. This is not easy to do, although
some have tried.
> This type of "censorship" is more simply defined as the rules that
hold
any
> society together.
>
> Is it our "human right" to say whatever we want without regard to
others'
> sensibilities? No, it's not. We do have a right to not be prosecuted
or
It is so long as it does not creat physical harm, or the risk of
imminent
physical harm (shouting "fire" in a crowded theater).
You have defined the problem away. But it's still there.
> intimidated for expressing an opinion, but that is a quite different
matter.
>
>
>
> The important question to ask is: does not allowing certain new
gTLDs
result
> in the removal or stymieing of discussion of a certain topic?
No, the important question to ask is, "Who decides" -- opinions differ
so
the question is at which level will the decision be made, the
governmental
(or quasi-governmental) or the individual level. In the US we in the
large majority of cases, do not trust institutions with the power to
decide these questions.
>
> And the answer to this is quite clearly no.
And the answer to this question is in fact that opinions differ, which
is
why history teaches us that the power question is central.
>
> This human rights argument appears to completely ignore the actual
reality
> of the Internet. There is actually comparatively little connection
between
> domain names and content and to pretend otherwise is frankly
bizarre.
>
>
The argument for the heckler's veto seems to ignore completely the
reality
of the diversity of viewpoints, and the many things that offend
someone.
I could go on, but I think you get the point....
[...]
> I can't for the life of me understand why so much effort is being put
into
> shouting at policies drawn up and agreed to by large sections of the
ICANN
> community over several years when the really important discussion to
be
had
> is how exactly the inevitable policies are implemented.
>
>
It is very hard to believe that well-educated people can so blithely
whisk
away the lessons of history. Assuming that you mean the above
seriously,
all I can say is that there's a powerful body of modern history that
teaches that Very Bad Things tend to follow from giving institutions
chokeholds over speech. I do agree that in the grand scheme of things,
control over TLD content is (today) pretty small beer. I personally
get
more excited about Guantanamo. But I do understand and respect the
people
who argue that one must fight the question of principle when it is
small,
and can be won, rather than waiting until it is big, and much harder to
deal with.
--
http://www.icannwatch.org <http://www.icannwatch.org/> Personal Blog: http://www.discourse.net <http://www.discourse.net/>
A. Michael Froomkin | Professor of Law | froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm <http://www.law.tm/>
-->It's warm here.<--
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