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One of the important facts about the dotgay LLC community application for the .gay domain name is the guarantee to give 67% of profits from the sale of domain names back to the community in the public interest. Another important fact is that they have not waited for the domain name to be allocated to give to the public interest. They have been giving to the Internet public Interest since day 1.
For the past years, dotgay LLC has been one of those helping to support efforts in Internet governance oriented around human rights and empowerment of users on the Internet. One component of their generosity involves my work. Together with several NGOs, they have contributed toward my independent work on human rights, Internet rights and technology to support human rights concerns.
Among the activities which they helped to fund:
- Extensive participation in ICANN activities, including work on human rights impact, and accountability.
- Participation in World Summit on the Information Society (WSIS) activities that involve Freedom of Expression and ICT for Development.
- Participation in US delegation to World Summits on ICT issues advising the US delegation on non commercial issues including those of LGBTQIA community users.
- Support of early work on research to discover protocol considerations that affect the use of the Internet for freedom of expression and of assembly. This work has led to the creation of HRPC a candidate research group in the Internet Research Task Force.
Beyond this, dotgay LLC supported grants for LGBTQI individuals from countries where the gay community is endangered, to attend international fora.
dotgay LLC is one of the funders that enabled me to do the work that brought me the first annual ICANN Multistakeholder Ethos award in 2014 while still being able pay my mortgage and put food on the table. Without their support, I would have been hard pressed to continue at times.
All of this was done without any quid pro quo; done without any sort of policy ‘guidance’ or special requests. This is a rare form of generosity and commitment to the cause of the public interest. It is time that I recognize this and thank Scott Seitz, the leader of dotgay LLC, for his approach to the public interest.
This blog has taken a hiatus the last few months. With recent setbacks in the dotgay community application, concentration switched to how to save the community application for .gay. A lot has happen in many areas since the last blog entry. In this entry I want to focus on the issue of ICANN’s Community Priority Evaluation (CPE) treatment of the gay community’s application for .gay.
The community application submitted by dotgay LLC was given a failing evaluation. One I believe was in error. With strong community support, dotgay LLC has filed for a reconsideration of this evaluation. This reconsideration request has been supported by a significant segment of the gay community including: ILGA, NGLCC, Gay Games, and IGLTA. Because of ICANN bylaws, reconsideration can only be based on the process issues. dotgay LLC has built a very good case against a process replete with errors and omissions that justify overturning the evaluation. As an optimist, I sit here looking forward to an ICANN which in 2015 will use its abilities to right a wrong by declaring a passing evaluation. Anything less will compound the injury that is being done to the gay community.
One of ICANN’s greatest deficiencies is the absence of an appeals mechanism that can adjudicate on the merits of a case. The Board has long been asked to create such an mechanism and it has been recommended by the Accountability and Transparency Review Team. The ICANN Board has not yet delivered on this agreed upon goal.
The dotgay LLC case against the ICANN Community Priority Evaluation has merit.
The ICANN CPE judgement argues that the LGBQTIA community overreached when it picked the name .gay. The decision argues that the dictionary says only homosexual men are gay. The ICANN CPE panel decided that L-BTQIA individuals do not belong to the gay community, even though the LGBTQIA community has identified itself, and been identified by others, as the gay community in so many ways. The ICANN CPE evaluation ignores the reality of our community. Beyond the ubiquity of the references to the gay community in the world’s press, we speak of anti-gay legislation, gay rights, gay persecution and gay marriage. The ICANN CPE decision ignores the fact that ‘gay’ is the word recognized in many languages beyond English, where it stands for far more than just homosexual men. It is a name of our community – the minority who are outside of society’s prevalent hetero-norms. It is a name we know ourselves by and a name we are known by. It is the name a confused child looking for help, searches on throughout the world. It is a name that should be used to create a safe and secure environment for our community instead of being exploited for all the profit it could bring.
dotgay LLC has a strong case to make on the merits.
In arguing the merits of the gay community’s case, the community could further remind an appeals panel that the community provisions of the recommended TLD policy were for the support of communities not as a way of defending against communities. The procedures in the Application Guide Book (AGB) that guide every step of the application procedures, did not follow the policy recommendation for support of communities. Rather, the AGB provided methods for those who want to exploit and profit from communities to attack those very communities. The rules were perversely written to give advantages to standard applications that focused on profit and nothing but profit. As members of a endangered community trying to create a safe space for the LGBTQIA community on line, we should expect support from global public interest institutions such as ICANN, not roadblocks.
I expect the Board to overturn the ICANN CPE decision based on the current process based reconsideration request. But if the ICANN Board does not do so, I encourage the community to continue arguing along side dotgay LLC on the merits of our community case in any venue where the case can be heard.
Today during the 27th Regular Session of the UN Human Rights Council Resolution Resolution HRC27/L27 on Human rights, sexual orientation and gender identity was approved. This resolution reaffirms the right of the global LGBTQI population to full human rights and calls for further work in documenting good practices and ways to overcome violence and discrimination against people because of their sexual orientation and gender identity (SOGI).
This is another step in the right direction by the international community of nations and is something to celebrate. the chair of the meeting had difficulty containing the euphoria in the chamber.
HRC27/L27/… Human rights, sexual orientation and gender identity
The Human Rights Council,
Recalling the universality, interdependence, indivisibility and interrelatedness of human rights as enshrined in the Universal Declaration of Human Rights and consequently elaborated in other human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and other relevant core human rights instruments,
Recalling also that the Universal Declaration of Human Rights affirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,
Recalling further that the Vienna Declaration and Program of Action affirms that all human rights are universal, indivisible and interdependent and interrelated, that the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis, and that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms,
Recalling General Assembly resolution 60/251 of 15 March 2006, in which the Assembly stated that the Human Rights Council should be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner,
Recalling also all relevant Human Rights Council and General Assembly resolutions on combating all forms of discrimination and violence exercised due to discrimination of any kind, particularly Council resolution 17/19 of 17 June 2011,
Expressing grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity,
Welcoming positive developments at the international, regional and national levels in the fight against violence and discrimination based on sexual orientation and gender identity,
Welcoming also the efforts of the Office of the United Nations High Commissioner for Human Rights in the fight against violence and discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,
- Takes note with appreciation of the report of the United Nations High Commissioner for Human Rights on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, and the panel discussion held at the nineteenth session of the Human Rights Council;
- Requests the High Commissioner to update the above-mentioned report1 with a view to sharing existing good practices and ways to overcome violence and discrimination, to present it to the Human Rights Council at its twenty-ninth session, and to report thereon to the Council every two years;
- Decides to remain seized of this issue.
Note: “remain seized” in the final point is a itieral translation of the French “rester saisi” which “gives the mandate to open up the issue again and do more in the future.”
Explanation of Vote: Resolution A/HRC/27/L.27 Rev.1 on Human Rights, Sexual Orientation and Gender Identity.
On behalf of the Republic of South Africa, by H.E. Abdul Samad Minty, Permanent Representative of South Africa to the United Nations and other International Organisations at Geneva.
DATE: 26 SEPTEMBER 2014
The belief that no person should fear for their safety or be deprived of their dignity because of their sexual orientation or gender identity explains why South Africa led initiatives leading to resolution 17/19 in 2011 and co-chaired a high level panel on the issue with Brazil in 2012. We have also lent our support for similar resolutions in other multilateral fora.
South Africa has therefore voted for Resolution A/HRC/27. The founding principles of the democratic South Africa’s Constitution state clearly that South Africa is a sovereign democracy founded on the basis of human dignity and the achievement of equality and the advancement of human rights. Guided by the principle of supremacy of the South African constitution and the rule of law, the South African government, through section 8 of our constitution is enjoined to promote and respect the rights of all people without distinction of any kind. The rights detailed in section 9(3) of the South African constitution lists the rights that the South African government needs to promote and respect. Discrimination based on Sexual Orientation and Gender Identity is explicitly prohibited in this section of our constitution.
South Africa is therefore compelled by the supreme law of our country to support a resolution that seeks to reduce discrimination and violence on any basis, including in this case, on the basis of sexual orientation or gendered identities.
Our support for the resolution is in sync with our national values shaped on our own history and experience of discrimination. This history and the struggle against all forms of discrimination has therefore made us, as a people and a country, committed to the principle that no person should be subjected to discrimination or violence based on race, class, sex, religion, gender and as is the case with this resolution, on the basis of sexual orientation or gender identity. It is the same value base that guides our stance on fighting for equality between countries and why we shall always make our voices heard about exploitation and oppression of people in any form. This includes the oppression of people in the occupied territories of Palestine and why we are committed to the principles of the right to development and for the reduction of inequalities within and between countries.
Having explained our support and vote for the resolution as presented by the core group, we also need to explain why we did not vote for the proposed amendments that sought to revert to the current listing of rights as found in the international law.
The amendments all sought to remove the explicit mention of the term ‘sexual orientation and gender identity’ in favour of more general provisions. We considered all of these proposed amendments carefully but found that they were not relevant in the context of this resolution, which seeks to find agreement around a best practice report on measures to reduce discrimination and violence specifically on the basis of sexual orientation and gender identity.
The South African government believes that we as a country will benefit from such a report. Despite our enabling laws, people in our country are still subjected to discrimination and violence based on their sexual orientation and gender identity. The scale of the violence has resulted in our Justice Department establishing a hate crimes unit to deal specifically with this kind of discrimination and violence.
The same applies as to why South Africa could not support the proposed paragraph (pp9), which referred to existing national laws, customs or beliefs. This clause is not relevant to a resolution that will look at the development of a best practice report on measures to reduce discrimination and violence, which may have to look at the role that policies, laws, religion and customs may play in the very issue that we are trying to address.
The essence of this resolution is to help us all understand what we can do better to protect the lives and dignity of all our citizens. This resolution is in stark contrast to the unhelpful and divisive use of development aid by some countries as a means to shift policies and laws in a select number of countries.
I thank you
In April 2014 the Association for Progressive Communications (APC) in collaboration with activists in Malaysia, which included a number of local LGBTQI activists, created a set of principles for a feminist Internet.
1. A feminist internet starts with and works towards empowering more women and queer persons – in all our diversities – to dismantle patriarchy. This includes universal, affordable, unfettered, unconditional and equal access to the internet.
2. A feminist internet is an extension, reflection and continuum of our movements and resistance in other spaces, public and private. Our agency lies in us deciding as individuals and collectives what aspects of our lives to politicize and/or publicize on the internet.
3. The internet is a transformative public and political space. It facilitates new forms of citizenship that enable individuals to claim, construct, and express our selves, genders, sexualities. This includes connecting across territories, demanding accountability and transparency, and significant opportunities for feminist movement-building.
4. Violence online and tech-related violence are part of the continuum of gender-based violence. The misogynistic attacks, threats, intimidation, and policing experienced by women and queers LGBTQI people is are real, harmful, and alarming. It is our collective responsibility as different internet stakeholders to prevent, respond to, and resist this violence.
5. There is a need to resist the religious right, along with other extremist forces, and the state, in monopolizing their claim over morality in silencing feminist voices at national and international levels. We must claim the power of the internet to amplify alternative and diverse narratives of women’s lived realities.
6. As feminist activists, we believe in challenging the patriarchal spaces that currently control the internet and putting more feminists and queers LGBTQI people at the decision-making tables. We believe in democratizing the legislation and regulation of the internet as well as diffusing ownership and power of global and local networks.
7. Feminist interrogation of the neoliberal capitalist logic that drives the internet is critical to destabilize, dismantle, and create alternative forms of economic power that are grounded on principles of the collective, solidarity, and openness.
8. As feminist activists, we are politically committed to creating and experimenting with technology utilizing open source tools and platforms. Promoting, disseminating, and sharing knowledge about the use of such tools is central to our praxis.
9. The internet’s role in enabling access to critical information – including on health, pleasure, and risks – to communities, cultural expression, and conversation is essential, and must be supported and protected.
10. Surveillance by default is the tool of patriarchy to control and restrict rights both online and offline. The right to privacy and to exercise full control over our own data is a critical principle for a safer, open internet for all. Equal attention needs to be paid to surveillance practices by individuals against each other, as well as the private sector and non-state actors, in addition to the state.
11. Everyone has the right to be forgotten on the internet. This includes being able to access all our personal data and information online, and to be able to exercise control over, including knowing who has access to them and under what conditions, and being able to delete them forever. However, this right needs to be balanced against the right to access public information, transparency and accountability.
12. It is our inalienable right to choose, express, and experiment with our diverse sexualities on the internet. Anonymity enables this.
13. We strongly object to the efforts of state and non-state actors to control, regulate and restrict the sexual lives of consenting people and how this is expressed and practiced on the internet. We recognize this as part of the larger political project of moral policing, censorship and hierarchization of citizenship and rights.
14. We recognize our role as feminists and internet rights advocates in securing a safe, healthy, and informative internet for children and young people. This includes promoting digital and social safety practices. At the same time, we acknowledge children’s rights to healthy development, which includes access to positive information about sexuality at critical times in their development. We believe in including the voices and experiences of young people in the decisions made about harmful content.
15. We recognize that the issue of pornography online is a human rights and labor issue, and has to do with agency, consent, autonomy and choice. We reject simple causal linkages made between consumption of pornographic content and violence against women. We also reject the umbrella term of pornographic content labeled to any sexuality content such as educational material, SOGIE (sexual orientation, gender identity and expression) content, and expression related to women’s sexuality.
The Council of Europe (COE), an intergovernmental organization that focuses on human rights, published a report entitled ICANN’s procedures and policies in the light of of human rights, fundamental freedoms and democratic values (COE-gTLD). The human rights implications of ICANN’s procedures is an important topic that is just beginning to be discussed in ICANN. This report is a major admonition to ICANN to fully consider the human rights implications of ICANN discussions. Its introduction at ICANN 50 in London was a significant event.
This report is relevant to the gay community, not only because of the centrality of the human rights discussion, but because the report uses the dotgay LLC community application as a case study. This case study shows how ICANN and the Economic Intelligence Unit (EIU) it hired to evaluate community status as part of the Community Priority Evaluation (CPE) may be violating the rights of the gay community. The report has been put on the table for future Government Advisory Committee (GAC) and other ICANN discussions and can be sure to figure into all discussions of community rights going forward. As such, the report represents a milestone for ICANN.
While this report is written from the perspective of European law and norms, it has general applicability to any discussion of ICANN and the human rights implications for domain names, as defined in the Universal Declaration of Human Rights and related international covenants and treaties including “The promotion, protection and enjoyment of human rights on the Internet” from the Human Rights Council.
But before getting to the case study on dotgay’s community application, some of the introductory content from the report is worth quoting:
As ICANN expands and its mechanisms and procedures affect more and more individuals, the living instrument doctrine might suggest, for example, that vulnerable groups that did not merit special protection in the past may now deserve specific protection under, for example, the national regulation of hate speech online. This might be the case for homophobic hate speech which has recently been examined by the European Court of Human Rights (ECtHR). Finally, the positive obligations doctrine implies that states have a duty to take reasonable steps to ensure that the rights of, for example, Roma, homosexuals and other vulnerable groups are in fact protected. Indirectly, this implies a commitment of the governments to also defend this in the ICANN and GAC context. The ICANN expansion process means that more multi-stakeholder dialogue is necessary to ensure that it operates in the public interest. With this expansion comes increasing responsibility and accountability. (COE-gTLD para 14)
The quote feeds into a general discussion that is building in ICANN of the importance and relevance of human rights. While the Non Commercial Stakeholder Group (NCSG) has worked for years to have human rights impact analyses added to the policy development processes for gTLDs, this takes the discussion to a new level. In a general sense, this report feeds into a proposal to create a permanent ICANN Human Rights Advisory Committee to work along side other ICANN Supporting Organizations and Advisory Committees (SOAC) to ensure that human rights considerations are always front and center when ICANN develops policy or makes decisions.
It is also material that these introductory remarks make specific reference to the plight of the gay community worldwide.
… the concept of ‘pluralism’ plays a prominent part in the case-law of the European Court of Human Rights (ECtHR). That is to say that pluralism is an important factor determining the scope and impact of a number of fundamental rights, such as the right to freedom of expression, freedom of association and freedom of religion. The ECtHR decided that, in the context of granting broadcasting licenses, states may have to be guided by the importance of pluralism. It also expressed the view that the exercise of power by mighty financial groupings may form a threat to media pluralism as well as far-reaching monopolization in the press and media sector. By using the concept of pluralism, the Court adds to the importance of individual and associational fundamental rights. Council of Europe states and the GAC thus should, in the same line of thinking, take care in ensuring that ICANN’s mechanisms includes and embrace a diversity of values, opinions, and social groups and avoids the predominance of particular deep-pocketed organizations that function as gatekeepers for online content. (COE-gTLD para 20)
This quote perfectly express some of the concerns of the dotgay community for the community application for .gay that has been under constant attack by deep-pocketed organizations. .lgbt is already lost to the LGBT community; its domain names will be offered to the general domain profiteering community, known as domainers, who seek to profit by first capturing and then reselling desired names at a high profit margin. If dotgay LLC does not prevail in its Community Priority Evaluation, the community may lose its opportunity to ensure that some part of the Internet domain remains safe and hospitable for the global gay community; that is, if the dotgay community application does not get a community rating from the CPE, it will be forced to compete in an auction with those deep pocketed organizations – and even if it prevails in an auction, it will do so at a cost to the community.
After its discussion of the general human rights principles at play in ICANN discussions in general, the report digs into the specific human rights issues related to the new gTLD program in section 2. Sections 2.1 and 2.2 of the COE-gTLD report give a very good high level synopsis of the ICANN application and are worth reading for this reason alone.
This discussion in the report references Article 20 of the Universal Declaration of Human Rights and, Article 21 of the International Covenant on Civil and Political Rights in support of rights related to the gay community within the context of new gTLD applications. The rights discussed extend to rights of a community to special treatment in order to overcome previous discrimination by virtue of various court decisions. The report also explains how the rights of redress for discrimination become applicable to the gay community:
while treaties and conventions do not specifically reference sexual orientation the reports discusses ECtHR case-law that determines that discrimination on the grounds of sexual orientation or gender identity is prohibited and must be prevented. (COE-gTLD Para 42)
The case-study on the string contention procedures referencing .gay as an example begins with section 2.4.4 of the COE-gTLD report. It lays out the ICANN Community Priority Evaluations CPE procedures with a focus on the scope of the definition of “community” and the “responsibility of states under international human rights law to take positive measures to protect certain vulnerable groups.” (COE-gTLD Para. 62)
The scope of a ‘community’ determines to what extent specific groups deserve protected status. (COE-gTLD para 64). The COE report takes the interpretation of the term ‘community’ back to the broad definition that was included in the GNSO recommendations, which are, or should be, the touchstone for all evaluations. It points to the manner that following on from the Applicant Guide Book (AGB), the standard appears to have been tightened even more against community interests than the AGB had already done. The report shows how the association and assembly rights associated with communities are parallel to those granted by the courts to associations. The report goes on to discuss the impact on human rights a narrow definition of community might have. For example, a narrow definiton might exclude the LGBT+ community from the community’s rights, while human rights based criteria would include it. The article shows how the AGB and the EIU interpretation of the GNSO’s recommendations, interfere with the ability of the community to uphold international human rights norms and laws.
Community-based TLD’s could take appropriate measures to ensure that the right to freedom of expression of their community can be effectively enjoyed without discrimination, including with respect to the freedom to receive and impart information on subjects dealing with their community. They could also take additional measures to ensure that the right to freedom of peaceful assembly can be effectively enjoyed, without discrimination. (COE-gTLD Para. 63)
The report discusses how the results of the judgement of the International Center of Expertise of the International Chamber of Commerce decision on the ILGA objections to the non community applications may be prejudicial against the gay community. As a special action may be required to protect the rights of association for this endangered community, it further states:
Specific action might be required in order to ensure the full enjoyment of the human rights of the LGBT community. The starting point for such measures is the need to combat a high level of discrimination based on sexual orientation or gender identity. Lesbian, gay, bisexual and transgender individuals have been discriminated against for centuries and are still subjected to homophobia, transphobia and other forms of widespread and enduring intolerance. This leads to hostile acts ranging from social exclusion to discrimination – all over Europe and in all areas of life, on grounds of sexual orientation or gender identity. (COE-gTLD para 72)
While the original obligations of human rights are incumbent on states, and thus on the GAC, the report explains that these obligation are become requirements for non state actors such as ICANN and the organizations that are responsible for the reviews.
The content related decisions made by ICANN may result in decisions made on the availability of information on the Internet, and can be regarded as similar to editorial judgements made by the media. (COE-gTLD para 74)
In other words, denying a domain of its own to the gay community may be seen as an act of editorial censorship.
The COE report recommends that anyone that runs a top level domain for a vulnerable community should have have a plan for how it will protect and assist the community. No one expects such protection for the gay community from the standard non community applicants of .gay as they have not included any such plans in their application. Only a community run .gay registry can be expected to do its best to protect and assist the gay community.
Finally the report discusses the consequence of failing the CPE, that is the need to compete with the standard applications in an auction for the community’s domain name. The COE-gTLD report explains that auctions are an inappropriate means for serving the public interest in delegating a community directed gTLD. As the delegation of .gay is a public interest issue, any auction pitting the gay community against the deep-pocketed organizations of the domain name industry is an inappropriate means of delegating .gay.
The COE-gTLD report’s discussion on new gTLD contention ends with:
In conclusion, gTLDs may include expression or be used as spaces for online association and therefore, entail a human rights and fundamental freedoms dimension which should be considered together with other technical matters. The evaluation of applied-for new gTLDs may involve content-related considerations that need to have the general interest in sight. While ICANN’s judgement should not be interfered with unjustifiably, ICANN should exercise its role with due regard for fundamental rights and freedoms and in full compliance with international standards. In particular, any interference with the exercise of the right to freedom of expression and the right to freedom of association should be more systematically tested against the requirements of international human rights law and the global public interest. (COE-gTLD para 80)
ICANN is a corporation in the public benefit, it needs to live up to its obligations to protect the public interest.
In ending this blog entry, I want to point out that one of the standard applicants for gay has again taken to attacking dotgay LLC at the CoE website, instead of taking responsibility for the human rights issues of what the report had to say. In reference to dotgay LLC procedures for restricting the .gay TLD to the LGBTQIA+ community, one of the specific statements that this standard applicant offers in his comment: “Their barriers to entry will keep out individuals from developing countries as well as young people” cannot be substantiated. There is absolutely nothing in dotgay LLC’s application to substantiate this claim – the Authentication Partners, groups from around the world who have served and continue to serve the gay community, that provide the entry point to the community gTLD will cover all regions and will be inclusive of developing economies as well as covering all LGBTQIA+ sectors of the community. This accusation is one that has been often repeated in the dirty trick campaign waged by some of the standard applicants against the dotgay LLC community application. This dirty tricks campaign against the gay community would also make a good case-study, and represents a form of discrimination that the gay community has had to deal with in its application for .gay . It can only be hoped that the powers-that-be will seriously consider the human rights responsibilities of all actors: including but not not limited to ICANN itself, the EIU and other evaluators, and the registry applicants who compete against communities.