[governance] RE: Human rights and new gTLDs

[Dan Krimm]

At 11:45 AM +0100 10/1/07, Kieren McCarthy wrote:

>> The whole issue with gTLDs is that these identifiers also
>> contain expressive characteristics.  And these expressive
>> characteristics are precisely what might come into play
>> in rejections based on "morality" or trademarks, etc.
>
>> In this case, the distinction between identification and
>> expression is hopelessly blurred, and the expressive-related
>> policies could easily be extended to other forms of expression.
>
>
>
>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.
>
>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
>intimidated for expressing an opinion, but that is a quite different matter.



The point that you're missing here, Kieren, is the underlying point about
political authority and governance structure.

It is the job of public governance to work through the very conflicts of
rights that you address here (and seem to come to some sort of personal
conclusion, as if you were the judge).  Our human rights often conflict,
and it is not simple to resolve them -- there is often less "common sense"
than appears to the unaided eye.  Drawing the lines is not easy, and the
processes we use to draw such lines are *very* important because they are
often applied more broadly than the specific cases in which they initially
arise.

Who decides who has what rights in what contexts, and how (procedurally) do
they make those decisions?  That is the core issue here.

We should be concerned about it here specifically because setting any
precedent for applying *expression-driven criteria* in gTLDs has the
potential to be applied to *other expressive contexts*.  Not because
censoring gTLDs itself inhibits free expression (it does, but your argument
that it doesn't matter much in and of itself is not entirely unreasonable
-- but then why should it be such a big deal to censor them in the first
place?  somebody out there cares a great deal about censoring them, so that
fact in itself makes them a big deal), but because establishing *authority
and processes* at ICANN to do this for gTLDs sets the stage to apply it to
2LDs and to content and applications themselves.  You may not see the
slippery slope here, but to me it's screaming in my face.  People who study
organizational and institutional dynamics are very familiar with these
tendencies, and they are rampant in the legal/political world.

Society has struggled forever to make these decisions, and to create
accountable processes and institutions for making these decisions, and we
have certainly not perfected the process yet, anywhere.  Nothing in the
realm of balancing human rights is as "clear" as one might presume using
"common sense".  The principle of *prior restraint* in the area of threats
to freedom of expression is *very* serious indeed, and that's precisely
what ICANN is proposing in the new gTLD policy.

If one suggests that ICANN should be the authority and design the processes
to make these decisions for the whole world, then I get scared.  Compared
to the difficult and contentious political venues and processes that
everyone loves to trash, ICANN's governance structures represent a step
backward in accountability to the citizenry of the world.

People who support the censorship of content generally will try to make the
point that "gTLDs are nothing to worry about" but this is not just about
gTLDs.  Allowing expression-related criteria in ICANN procedures for gTLDs
would establish a precedent that can be used to support similar efforts
applying to other realms beyond gTLDs per se.

The point is that even if ICANN allows a gTLD application to move forward
and it ends up offending someone, then the proper venue to address that is
a formal court of law with an accountable jurisdiction, because courts have
institutional structures that are ideally designed to provide for some
formal accountability to the public interest.  Again, far from perfect, but
ICANN is a step back from even that standard.

These balances of competing human rights will need to be decided somewhere
for sure, and no one is saying that they should be ignored.  Simply that
ICANN is the wrong place to make the decisions.  Who is *ICANN* to tell me
what my human rights are or are not?  Tell it to the judge.

ICANN is not an appropriate judge, jury, or law enforcement institution to
deal with the difficult problems of balancing human rights.

Dan
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