[cooperation-wg] new gTLDs, due diligence and national sovereignty

On 8 Sep 2011, at 12:16, Patrik Fältström wrote:

> Let me be devils advocate here. If you want a new TLD, spend $1M on  
> a new name you will use, you better do a darn good due diligence on  
> what legislation exists in the world -- or at least the markets you  
> will do your businesses in.

True. But it's not that simple Patrik. As I'm sure you know.

Due diligence in every jurisdiction will be a non-terminating  
function. Good luck chasing that ever-moving target. And even then you  
might not know if your string is "illegal" until there's a legal  
action and the courts decide. :-(

Your example of .bank is a very good one. I expect many countries have  
rules like Sweden's where only nationally-licensed banks can use that  
name. Which in turn reflects the national regulations for running a  
bank. So far so good.

Now suppose I get a banking licence from a country with very lax  
regulations. Can or should Sweden be able to reject jim.bank because  
it doesn't meet Swedish banking requirements even though it meets  
those of the banana republic where I legitimately registered my bank?  
Would Swedish Internet users be prevented from doing business with  
jim.bank? Whose law prevails, Sweden's or the banana republic's?

These issues will crop up with all sorts of regulated businesses or  
professions: doctors, lawyers, accountancy, shipping, telephony,  
pharmacies, insurance, etc.

> I am not saying blocking the application should happen, that is a  
> fair discussion. I just wanted to point out that some legislation  
> that is absolutely not related to IT do set limitations on what  
> words you can use in your business. And the question is then what  
> responsibility (if any) there is during the application process of  
> ICANN to approve/not approve such names that violate local  
> legislation.

Yes. This goes to the very heart of the problem Patrik. National law  
should of course prevail as a matter of principle. But figuring out a  
viable universal process for that and injecting it into the gTLD  
sausage making machinery will be hard. The new gTLD thing seems to  
want to dance around this tricky issue and it appears ICANN isn't  
paying attention to the GAC's national sovereignty concerns. Which is  
unlikely to have a happy ending. :-(