[governance] RE: Human rights and new gTLDs

[Dan Krimm]

Okay Kieren,

I addressed all your issues, so I thought, and it seemed that you didn't
address mine at all.  It seems you have a blind spot there (with regard to
accountable political authority to balance competing human rights).

If you want to let it rest there, fine.  But the issue will not and cannot
go away, however much you may wish for ICANN to "pre-empt" it.  This is the
crux of the debate here.

Dan



At 4:29 PM -0400 10/6/07, Kieren McCarthy wrote:
>> I don't see you disagreeing with the rest of my discussion,
>> which is the important part.
>
>I'm afraid I disagreed with every word of it. Even the word "and" appeared
>to have got the wrong end of the stick.
>
>
>
>> I'm not sure what "future issues" you wish to "pre-empt" but...
>
>Okay, now this is just bizarre. A few of the issues were outlined on the
>self-same email.
>
>
>I think I'll save us all some time and stop here.
>
>
>
>
>Kieren
>
>
>
>
>
>
>-----Original Message-----
>From: Dan Krimm [mailto:dan at musicunbound.com]
>Sent: Friday, October 05, 2007 4:44 PM
>To: governance at lists.cpsr.org
>Subject: RE: [governance] RE: Human rights and new gTLDs
>
>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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>>
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