Transcript of ICANN GNSO Public Forum on New gTLD Policy

26 March 2007 – Lisbon

Exchange Between NCUC Chairman Milton Mueller and GNSO Chairman Bruce Tonkin (who is also nominated to ICANN Board)

Full transcript here.


>>MILTON MUELLER: I love you, Bruce. The answer to bureaucracy is more bureaucracy.

[ Laughter ]

>>MILTON MUELLER: It’s just wonderful to watch this process gathering steam.

But I have a lot of comments about this process, as you might know. But I want to start with a very simple question. Just it’s a very simple question, and I want to see how you — not just you, Bruce, but anybody who participated in the sewing together of this Frankenstein monster would answer it.

And the question is, is it possible for anybody to create a controversial proposal and get it approved under this process?

>>KURT PRITZ: Yes. So the answer is yes. I think that it’s probably a long and costly process. I think it has to be defined for the applicant up front. But also, that we need to — There’s lots of noncontroversial strings and applications out there.

>>MILTON MUELLER: Let me just understand first how it would happen.

So if I propose dot abortion and the Catholic church weighs in against me, do you tell the Catholic church to take a flying leap or what?

>>BRUCE TONKIN: Well, you work it through the process.

And what’s the basis for objecting to that? Is it on the basis — Is there a law against abortion? There is in some places. I don’t think it would necessarily be the Catholic church that would be able to do it on the basis of being a religious organization.

>>MILTON MUELLER: Anything that is controversial, there is going to be a law against it somewhere. Is that not right?

>>BRUCE TONKIN: Well, there’s two elements to it.

Maybe I’ll answer your first question because I don’t want to go down — I can see myself getting into trouble on that particular topic.

But — or the particular example, I should say.

But let me put it another way.

Controversial strings have already got into the root. Every TLD that — in fact, many of the TLDs in the second round had significant objection, and some of those have got through, so I think the answer to — I’m using controversial in the sense that there are objections to it, yes, it can get through. If you are going to choose particular words, I don’t know the outcome because — but as a category, is it possible for something controversial to get through? Yes. In fact, it already has. And I’m not saying —

>>MILTON MUELLER: Wait, wait. They weren’t using this proposal. They were not using this proposal. So that doesn’t really answer the question.

I’m asking under this proposal, which seems to be inviting anybody in the world to object to something that they think is against their values somehow, their legal —

>>BRUCE TONKIN: But there’s a fairly — there’s a bar to do that, though. That’s the difference.

>>MILTON MUELLER: So what is the bar?

>>BRUCE TONKIN: Well, the bar, taking the example of — let’s take the bank example. What I’m saying is the objector to that — let’s say someone applies for dot bank. The objector is that is not just a bank objects. They would have to show they have the support of the banking community to object. So in other words, we’re flipping it around to a degree. We’re not requiring them —

>>MILTON MUELLER: In that case, you’re talking not so much about semantic controversiality, you are talking about a proper matchup of the applicant and the idea represented, which at least has something to say for it.

But it seems to me that you have opened the door wide to purely semantic or sensorial types of objections here, with your discussions of morality and public order and your invitation for so-called legitimate groups to express objection basically on just value conflicts.

>>BRUCE TONKIN: But what we are saying there is there have to be widely accepted values, if you like, internationally.

So it’s not just a —

>>MILTON MUELLER: So it’s the clash of civilizations, is it?

>>BRUCE TONKIN: It could be, but the particular one that you — the particular example you have suggested, abortion is probably something that you’d — that would be something that would need to go through the process and we would see what comes out of it.

But the question you are asking is is it an internationally accepted legal norm not to have abortion. I don’t actually know the answer to that question. But if it was, then yes, I think that probably is basis for objection on that particular word.

>>MILTON MUELLER: And I think that’s tragic, that you are basically saying — you are creating a political process of censorship.

You’re sort of abandoning 300 years of liberal ideology about freedom of expression and saying that we are going to decide what is allowed to be uttered at the top level based on an alleged universality that doesn’t exist. And I would just remind you that one of the ways that we ended several centuries of religious warfare was not by deciding which religion was right; it was by the principle of tolerance, which allowed all the religions to exist and separated state power from expression and conscious and belief. And that’s, I’d suggest, a direction we have to go. I can go and registering FUCK. See if it goes up there. In the second level in a number of domains.


>>MILTON MUELLER: And the world didn’t fall apart. And I can register Jihad, and I can register — I would invite you all to look at what’s under or We didn’t have massive global political fights about who got those domains. There’s not that much difference. There are some differences, but there’s not that much differences between the top level and the second level unless you make them into issues. You can create a political conflict and a need for political conflict if you try. I mean —

>>BRUCE TONKIN: Let me be clear.

If you insert that word that you’ve just suggested, I’m certain you’ll have political conflict.

>>MILTON MUELLER: At the top level. And I’m suggesting.

>>BRUCE TONKIN: At ICANN. You absolutely will. I think there are a number of governments that would certainly find that — yeah, there would be political conflict. I’ll leave it at that.

>>MILTON MUELLER: Well, my mother would not approve. But that’s neither here nor there.

The point is, you are a technical coordinator of the top-level domain name system. You’re not an arbiter of global speech norms.

>>BRUCE TONKIN: Yeah. The other way I’d answer that, Milton, and this is just speaking personally, I think the difference at the moment, as opposed to where it might end up, but the difference at the moment is, there’s a relatively few names at the top level. And if I just add one single name, I don’t add any other names, and I add the name you’ve suggested, I think that would be controversial.

If you add that name at the second level to dot com, it is one name amongst 40 million, and that particular word is probably spelled already in a thousand different ways already. So adding another way is a sort of drop in the ocean.

So I think that would be why I think there would be political issues right now, because we are creating — we have artificial scarcity there, and you add the word at that level, it kind of stands out. That’s just a personal view.

>>MILTON MUELLER: Just one other factual point. That is, when you look at the proposed grounds for an objection to a string, all but the second one there has perhaps something to say for it. And you’ve been invoking this international treaty, which is basically a trademark treaty. And the thing about trademark is that it’s not a standard for determining whether you get to utter a word or whether it gets to be published. It is a grounds for determining exclusivity between two applicants, so that if one applicant’s use of the term encroaches on another’s, then you have some basis for saying, you get it and you don’t.

But you do not have that as a basis — there’s no legal grounds, there are no universally accepted legal norms for saying you can’t have that word at all. Nobody can have it.

And so you cannot invoke this existing body of international law to justify what you’re doing here.