[governance] RE: Human rights and new gTLDs

Fri Oct 5 13:31:02 EDT 2007

I've been meaning to respond to Wolfgang's (as ever) insightful overview on
this issue of new gTLDs for a week.

Wolfgang is right of course. Different societies have conflicting values -
and they hold them for very good reasons, and they are deeply ingrained.

I also agree that global government and the creation of hundreds of
different of new gTLDs would provide the answers to the problems. But I just
don't think either will happen.

I am writing this sitting in an OECD meeting where 33 governments are
reviewing and discussing an upcoming June 2008 conference that hopes to
provide a forward-looking declaration about the Internet economy.

It is surprisingly collegial but at the same time there is no way that even
those that agree strongly with one another are going to decide their laws
together. 

Even in the closest relationships, there are subtleties of disagreement and
it is often the small differences that cause the greatest disagreement. 

In fact, the self-proclaimed World's Funniest Religious Joke covers that
clearly:

------------------

I was walking along when I saw a man standing on a bridge getting ready to
jump. I tried to find a reason to dissuade him, and asked :

Are you religious? Yes, he replied. Great, so am I

Christian or Buddhist? Christian, he said.

Episcopalian or Baptist? Baptist, he responded.

Baptist Church of God, or Baptist Church of The Lord? Baptist Church of God.

Are you Original Baptist Church of God or Reformed Baptist Church of God?
Reformed Baptist Church of God.

Are you Reformed Baptist Church of God Reformation 1879 or Reformed Baptist
Church of God Reformation 1915? Reformed Baptist Church of God Reformation
1915, was the answer.

Die heretic scum, I said. And pushed him off. 

------------------

I think that could also be held to be true on occasion with the technical
community.

But with respect to the issue of new gTLDs.

I don't think people have considered sufficiently the very real risk that a
large expansion in the number of gTLDs could have on broader confidence in
the Internet itself.

When RegisterFly failed, it undermined the confidence that many of its
customers had in what they probably didn't even know is called the domain
name system. They couldn't understand how it could happen. They had paid
money for their domain and built websites on them and then suddenly, it
vanished. And in some cases, they permanently lost their domains - through
no fault of their own.

This was a single registrar. And it should be noted that the problem was
significant because it had so many customers. And the reason it has so many
customers was because it charged less than everyone else. And because it has
more customers and less money, its systems were not as robust as they needed
to be.

When the number of gTLDs is expanded, it greatly increases the chance of a
registry failing. The more there are, the larger this risk becomes. When a
registry does fail, it will impact not one but a whole range of registrars -
and I don't think people has quite thought through how much that may damage
confidence in the actual domain name system itself.

What if the registry that fails does so because it has gone for the
lowest-cost model - and so as a result it has a very large number of domains
registered under it (and so a very large number of people)?

What if that registry is .baby? Tens of thousands of young couples lose
their beloved websites and the digital pictures of their child they stored
there. That damages their confidence not in .baby but in the Internet. How
did they know they can trust a domain or website again? 

Perhaps more dangerous is the fact that the more gTLDs there are, the
greater the chances that an entire registry goes AWOL. That the company that
runs .mail decides to sell up to the spammers - and everyone suffers from a
massive increase in spam.

What if sloppy security lets a phisher hack into the .money TLD? 

What happens when domain name tasters take over every misspelled combination
of .com as a registry? And then cover every page with who pays the most -
quite probably porn.

What if all these things happen at the same time? Someone loses the website
they built and all their photos; the same day only five of the 3,000 emails
they receive is not spam; then their bank calls to tell them that $3,000 has
just left their account. They try to find out some information online and
everything they click leads to a website with pictures of naked women on it.

This is a scenario that *will* happen unless it is prevented from happening.
It means controls need to be put in place and it means that suitable failure
systems have to be put in place. 

But we are 100 miles from even starting that conversation because of the
insistence - wrong in my view - that *any* controls are somehow damaging. 

Just my two cents/pence.

Kieren

-----Original Message-----
From: Kleinwächter, Wolfgang
[mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de] 
Sent: Monday, October 01, 2007 12:59 PM
To: governance at lists.cpsr.org; Lee McKnight; kierenmccarthy at gmail.com;
governance at lists.cpsr.org
Subject: AW: [governance] RE: Human rights and new gTLDs

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 

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