[governance] RE: Human rights and new gTLDs

[Dan Krimm]

Okay, well, then, what about the rest of the points I made below under the
assumption that the gTLD space is going to be expanded?  I don't see you
disagreeing with the rest of my discussion, which is the important part.

I'm not sure what "future issues" you wish to "pre-empt" but it may be that
some important future issues (such as balancing various competing human
rights that will remain systematically in conflict forever) simply cannot
be pre-empted without doing massive structural injustice to legitimate
political authority and processes.

Sometimes a community (including a broad world community) *needs* to work
through difficult issues in a way that is politically broadly accountable,
rather than trying to avoid confronting (excuse me, "pre-empt") the issues
in the back rooms.

The problem is that the "issues" can *not* really be pre-empted.  They
would simply be decided by fiat in a way that allows the most powerful back
room participants to have their way without inconvenient obstruction by
weaker stakeholders with contrasting interests.

What is pre-empted is a process for ensuring independently accountable
justice.  The issues themselves are eternal and can never be pre-empted per
se.

Dan



At 3:58 PM -0400 10/5/07, Kieren McCarthy wrote:
>> It sounds like you would rather simply not expand the gTLD space at all.
>
>Hi Dan
>
>Nothing could be further from the truth.
>
>I have been going on about gTLD expansion for as long as I can remember.
>
>I think for example the argument that "domains don't matter because we have
>Google" is fundamentally flawed: Google is just a company, and a company
>that uses the DNS extensively in building its rankings, plus one which makes
>nearly all its money from companies that have well-defined domain names.
>
>I think gTLD expansion is probably the *only* solution to the intellectual
>property issues that have disrupted so many discussions over the years (if
>everyone goes to .movie for films, where is the damage to your product if
>someone has your film title under a .org?)
>
>I think gTLD expansion is the undeniable future of the Internet. I think it
>is the next revolutionary step in applications - not facebook.com but
>.facebook.
>
>My concern stems from the fact that so many brains are being banged against
>one another rather than working together to predict and pre-empt future
>issues.
>
>
>
>
>Kieren
>
>
>
>
>-----Original Message-----
>From: Dan Krimm [mailto:dan at musicunbound.com]
>Sent: Friday, October 05, 2007 3:36 PM
>To: governance at lists.cpsr.org
>Subject: RE: [governance] RE: Human rights and new gTLDs
>
>Kieren,
>
>It sounds like you would rather simply not expand the gTLD space at all.
>Seth Finkelstein made some similar arguments on the ICANN public forum, I
>believe.
>
>If we didn't expand the gTLD space, then the control issues would not be
>prominent because there would be nothing to control (given that the current
>crop of gTLDs is already a fait accompli).  That's one way to avoid the
>censorship issue: remove the option for any new "expression" in this realm
>(of gTLD strings) whatsoever.
>
>But ICANN seems to have found consensus that it would be good to expand the
>gTLD space.  Perhaps because it creates more exponential revenue for ICANN,
>I don't know, just one idea.
>
>
>So, now we have to consider *how* to expand it, given that the expansion
>seems assured as a matter of ICANN policy.
>
>When you appeal to registries failing, etc., it seems that would fall under
>the consideration of operational criteria, which nobody is objecting to as
>a valid consideration for evaluating a new registry application.  Technical
>and operational criteria are perfectly reasonable for ICANN to consider
>when approving gTLD applications.  No question, no argument.
>
>However your example with Registerfly was for a 2LD registrar, not a gTLD
>registry.  I am not aware of the failure of any gTLD registries.  In any
>event, this case brought about a move to review the registrar accreditation
>processes at ICANN, and well this should happen.  But such accreditation is
>still not expected to involve consideration of expression-related criteria
>for granting 2LDs, for example.  (This is one of the common arguments for
>doing it for TLDs: you can still have "anythingyouwant.com" even if
>".anythingyouwant" is rejected.)
>
>"Sloppy security" is also an operational matter.  Perhaps security
>standards should be established for registries.  Again, not an
>expression-related matter.
>
>Domain tasting and porn are also not at issue in the currently proposed
>gTLD policy -- unless the proposed gTLD string *itself* constitutes "porn",
>and who is going to make *that* decision???  Do you really want *ICANN* to
>draw that line?  I shudder at the thought.
>
>In any case, nothing you have written here seems to conflict with, say, the
>NCUC position, which is to allow genuine technical and operational
>considerations into gTLD application evaluation but to keep
>expression-related criteria out of the process at ICANN per se (and to
>close procedural loopholes that would allow censorship without even having
>to explain why), and let existing political jurisdictions prosecute
>violations within their jurisdictions.
>
>If an authoritarian nation wants to create a chilling effect with regard to
>expressive characteristics of gTLD registries within their borders, or to
>even block some gTLDs from being found within their national network, at
>least let that decision stay within their borders and not be imposed on the
>rest of the world.
>
>Dan
>
>
>
>At 1:31 PM -0400 10/5/07, Kieren McCarthy wrote:
>>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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