[governance] Emergency resolution on .xxx recall - andthedestruction of ICANN's integrity

Tue Aug 16 13:24:31 EDT 2005

This .xxx problem could become an interesting case, in particular against the background of the WGIG/WSIS development and the promised independence of ICANN.

Here is a possible scenario: According to ICANN´s Bylaws, ICANN can reject the GAC advise, but has to explain to the GAC why. Vint and Paul did this already in GACs joint meeting with the ICANN Board in Luxembourg in July 2005. Their argument was, that .xxx does not introduce porn on the Internet. There is already enough dirty content in many TLDs. ICANN, according to its mission, defined in the bylaws, is responsible for the technical management and makes no decision with regard to content. Paul also mentioned that no government participated in the public comment period, where 62 comments has been received. This argument was countered by the Brazilian GAC member who argued that he can not accept a division of labour where ICANN creates "thematic parks" and the governments have then to fill it or regulate it. But no decision was taken in the GAC. It is a little bit unclear, what process within GAC has produced Sharil´s letter. There is no documented discussion on the GAC website. And the GAC has normnally no telephone conferences. Nevertheless, the letter reads like a "GAC advice on public policy matters". But as said above, ICANN can reject GACs advice according to its bylaws.

Articel 11, Section 2-1 says: 
"j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

k. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities." 

If the ICANN Board would reject the advise and the following consultations fail, ICANN has to explain the reasons for its decision it to the general public and the global Internet community, but in fact - theoretically - the GAC can not stop it. 

What would be the next step? ICANN/IANA would send the .xxx zone file to the US Department of Commerce which has to authorize its publication in the root. And this is the interesting point. After Gallaghers letter, would NTIA remain "neutral" as it promises in the latest statement on WGIG by the US Department of State? And if the DOC would block the authorization of the .xxx zone file, would the USG do this on their own behalf (as a unilateral decision) or on behalf of the GAC based on a agreement among governments? One additional problem is that the GAC is not a decision making body, it is an advisory body and has nor procedures for decision making in place. 

Best

wolfgang

________________________________

Von: governance-bounces at lists.cpsr.org im Auftrag von Milton Mueller
Gesendet: Di 16.08.2005 18:07
An: ewan at intug.net
Cc: governance at lists.cpsr.org
Betreff: Re: [governance] Emergency resolution on .xxx recall - andthedestruction of ICANN's integrity

Ewan:
Thanks for your comment. Speaking as someone with a 20+ year background
in public policy, I can say that this is not about "public policy," its
about political exploitation of symbolism, and about incompetent and
arbitrary political interventions. More seriously, it is about the
subordination of _global_ TLD delegation processes to the domestic
politics of the US. If you have no objection to that, bless you for your
serenity! But I'd encourage you to stand aside and let those of us who
have to deal with the dire consequences of what is happening do their
work.

You may not know enough about the situation (I have never seen you at
an ICANN meeting) to know just how completely fake GAC's call for "more
time" is. The xxx TLD proposal was all over the US and international
media in 2004. It was on the Today show in 2004, in a debate with
Morality in Media. ICM Registry offered to make a full presentation of
the proposal to GAC in Dec. 2004 (the Capetown meeting). It also took a
delegation for a full presentation to Board in Mar del Palta in  April
2005,  and offered the same presentation to GAC. In both cases, GAC
refused to take the time to listen.

AFTER the decision was made, some GAC members expressed objections
during ICANN's Luxembourg meeting -- but they were basically laughed out
of court for their negligence and incompetence. No vote was taken, no
resolution passed. It was only with the arrival of a new Commerce Dept.
officer in late July that Commerce changed its mind. That means what we
have always feared: the USG dictates what happens in ICANN.

Do you think that is the right way to make Internet policy? I mean,
from a process point of view, do you really believe that the public's
and even business interests are served when one political appointee in
Washington can reverse a 5-year global deliberation process that cost
the applicants millions? What would your buisiness telecom user
constituents do if something like that happened to one of their
applications for a license?

More importantly, do you really think the registration and use of a
domain name is something that governments, in their capacity as arbiters
of "public policy," ought to have unlimited authority to reverse on any
grounds, at any time, based on whoever lobbies them the hardest? Do you
believe in freedom of expression? Do you understand the linkage here
between free expression on the Internet and the capacity to have TLDs
delegated in an impartial, content-neutral manner? Do you think that If
I can generate 6000 angry letters to the US Commerce Department about
intug.net, say because I think you are all a bunch of evil capitalists
or non-muslim infidels or white males, or gays, or whatever (I am just
joking here, obviously) that someone should have the power to yank that
domain away from you, regardless of costs? Because that is all that is
happening here. Its censorship and cultural oppression, home brewed in
the USA.

Of course the definition of pornography varies from country to country.
But so what? If the sites under .xxx don't meet some countries exclusion
standards then they are no worse off than they are now. Be serious. Do
you think David Sampson or Family Research Council wants to have a
serious and searching debate about how porn might be defined and applied
to web content globally? That's crazy. They want to smash .xxx to
convince their constituents that they are being righteous. that's all.
Please don't dignify this with any sober rationalizations.

>>> "Ewan SUTHERLAND" <ewan at intug.net> 08/16/05 10:47 AM >>>
I am not sure I agree. First anyone who saw this proposal and had any
background in public policy realised it was liable to explode at some
point. Second, it does not identify pornography, since the definition
is
highly variable between countries and cultures. Maybe a triple-X.US
might have worked, but even then it might be different in NY state and
Mississippi. There are two boundary lines here, one is what is
insufficiently "exciting" to be included and what is so objectionable
to
be excluded, both are highly variable and dependent.

I think many governments are unhappy with this, not just the USG. I
would not criticise GAC for warning ICANN.

Sensibly, ICANN ought to have buried the proposal.

Ewan

> Many of us have warned for years that the US's unilateral political
> power over ICANN was a problem. Too many people didn't listen. Now
that
> power is being displayed and used in a way that even the most abject
> apologists for the system cannot deny.
>
> Over the weekend ICANN's Governmental Advisory Committee transmitted
a
> letter asking ICANN to reverse its decision to approve the .xxx TLD.
A
> letter from the US Commerce Dept supporting that request has also
been
> filed.
http://www.icann.org/correspondence/gallagher-to-cerf-15aug05.pdf
>
>
> I believe it is essential that NCUC, ALAC and WSIS civil society
join
> together in a resolution or letter to ICANN, its GAC and the US
Commerce
> department expressing concern over and opposition to the GAC's
attempt
> to reverse the .xxx delegation.
>
> What is at stake here is the very model of the Internet as a private
> sector and civil society-driven institution, and as an INTERNATIONAL
> institution. This is not about .xxx per se. (although it should be
noted
> that all .xxx proposes to do is openly and accurately identify porn
on
> the Internet, which is in every legitimate user's interest.  The
> creation of a .xxx TLD does not CREATE pornography, which we all know
is
> already out there.)
>
> The decision by the US to exercise in an unambiguous way its
unilateral
> power over ICANN has been made in a surprising context. But I have
> checked the facts and there is no doubt about it. The US Commerce
> Department's Deputy Secretary David A. Sampson, confirmed by the
Senate
> July 22, is responsible for the sudden decision of the US to support
the
> GAC's attack on ICANN's delegation process. Sampson was influenced
by
> the Family Research Council, a culturally conservative religious
group
> in the US, which made it an issue. Sampson is a graduate of David
> Lipscomb University , the New Orleans Baptist Theological Seminary
and
> earned his doctorate at Abilene Christian University.
> http://www.commerce.gov/bios/sampson_bio.htm
>
> ICANN participants must stand up for the integrity of the
institution
> as a global, legitimate policy making system. One government cannot
be
> given an arbitrary and unlimited power to reverse the result of a
> decision making process that has gone on for five years and consumed
> millions of dollars in resources, just because a domestic political
> constituency doesn't like the result.
>
> If this recall is allowed to go forward unchallenged, governments
will
> have asserted and gained a form of arbitrary power over the Internet
at
> its very core. ICANN's often flawed attempt to be a bottom-up
> organization will be completely defeated, forever. This is a very
> important issue. It is essential for ALAC, NCUC and other civil
society
> actors to unite on this.
>
> I will be drafting a proposed short resolution. I hope to transmit
it
> to these lists soon.
>
>
> Dr. Milton Mueller
> Syracuse University School of Information Studies
> http://www.digital-convergence.org
> http://www.internetgovernance.org
>
> _______________________________________________
> governance mailing list
> governance at lists.cpsr.org
> https://ssl.cpsr.org/mailman/listinfo/governance
>
>

--
Ewan SUTHERLAND, Executive Director, INTUG
http://intug.net/ewan.html
callto://sutherla
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