[governance] First Draft of Statement on US Commerce Department/GACchair intervention

[Izumi AIZU]

Dear Milton,

With all due respect, my first reaction to your draft is, no, this
does not reflect my view or some other views expressed on this list.
I have hoped that you would take divergent views into the draft
so that it would cover and reflect the wide range of our views into
common languages, but unfortunately I find this one still vastly too narrow.

Therefore, I  ask you not to try "represent" the Civil Society both
at WSIS and ICANN with this draft. Honestly, the views are far more
diverse than you have tried to put together, I am afraid. Of course,
you are free to call for support and put this forward, but I don't think
it's fair to label this as generic "CIVIL SOCIETY STATEMENT " as
it stands.

Below are my specific comments to your language. I am so sorry,
but I could not offer replacement languages since my view is so
different from yours.

For your convenience, I also attach the Word file with my comment inserted.

Thanks for your hard work, I do not deny the value of our efforts.
It's worth a try, but I do not see the potential of wide consensus
to emerge by this version.

izumi

At 16:15 05/08/18 -0400, Milton Mueller wrote:
>Attached as a Word doc, but also inserted below as ascii.
>
>Thanks to Bill Drake, Lisa McLaughlin and Lee McKnight for their input so 
>far; others welcome.
>
>---------
>
>
>DRAFT CIVIL SOCIETY STATEMENT v 1.1
>8/18/05
>
>The following signatories, all participants in ICANN and WSIS civil 
>society, wish to express our concern over the recent request by the 
>Government Advisory Committee's chairman and the U.S. Department of 
>Commerce to delay, and possibly reverse, a gTLD delegation decision by 
>ICANN's Board.
>
>The intervention by the U.S. Commerce Department and the GAC Chair raises 
>three issues:
>
>1. The role of governments in ICANN
>
>ICANN was intended to be a multistakeholder governance authority. Under 
>ICANN's bylaws, the private sector, civil society, the technical community 
>and governmental representatives have roughly equal status.

I disagree, GAC and ALAC are advisory only and they do not constitute 
voting members of ICANN Board. Besides, while GAC has more authority in 
that they could formally request ICANN Board to explain in case the Board 
does not follow GAC advice, ALAC has no such authority.

>The GAC chair/Commerce Department intervention

I do not support treating the GAC chair and DOC interventions as one 
combination. To me, they are of separate nature.

>, however, seems to be based on the theory that governments have a 
>superior authority to review or reverse decisions emerging from ICANN's 
>processes.
>This view of the role of governments, if accepted or encouraged by the 
>Board, would lead to a radical change in ICANN's mode of operation, one 
>which we strongly oppose.

Again, I do not agree. They expressed their legitimate concerns and asked 
to take more time (delay the decision), but not to reverse it, at least 
explicitly. I do not believe that this will directly lead to a radical 
change of government position at ICANN per se.

>  We acknowledge the existence of legitimate demands for revising the 
> oversight relationship between governments and ICANN. If change is to 
> take place fairly and legitimately, however, it must occur through 
> careful, deliberate negotiations and formal agreements among governments 
> and all other involved constituencies * e.g., through the WSIS process * 
> rather than through sudden actions by a few governmental representatives 
> reacting to lobbying efforts by a handful of interest groups.

Changing the ICANN’s internal structure may better be dealt first at 
ICANN, not outside. That is why I am engaged with ALAC, trying to work 
from inside. Of course, I don’t deny the importance and legitimacy of 
discussions and pressuring activities from outside, too, but bringing it 
first to outside is not the way it should be.

>2. The importance of stable rules and procedures
>
>We believe that Board's willingness to entertain this last-minute 
>intervention, while no doubt intended to be an act of accommodation and 
>flexibility, could damage the fairness, credibility and stability of 
>ICANN's processes if it is taken to be a precedent for the future.

Judging from the facts so far, I do not support this assumption. And I 
like flexibility.


>We believe that it is unjust to tell TLD applicants * or anyone else 
>seeking a decision or policy from ICANN * to follow a prolonged and 
>elaborate set of rules and procedures, and then at the 11th hour cast all 
>those requirements aside and impose new procedures that put at risk 
>everything they have invested. But the harm potentially goes beyond those 
>directly affected by ICANN awards. The delay sends a message to everyone 
>who devotes time and energy to participating in ICANN processes that their 
>work can be rendered irrelevant at any time if politics intervene.  GAC 
>members, including the US government, had ample opportunity to express 
>their views on the .xxx proposal during the transparent 18-month 
>evaluation process. At the very least, the GAC should be required to agree 
>on a formal resolution before offering policy advice to the Board, as 
>ICANN's bylaws stipulate. As we show in the annex to this letter, GAC 
>members had many opportunities to learn about and express their views on 
>the .xxx application, but passed them up. It is unclear to us why a 
>stakeholder group unwilling to fulfill the role assigned to them by the 
>TLD evaluation process should be granted special powers to affect the outcome.

I agree that most GAC members neglected until the last minute about 
this .xxx issue. Yet, as GAC operates in their “consensus” mode, I also 
notice their difficulty in acting in unison on issues of diverse positions 
and opinions, thus individual governments are, like any other individual 
constituency, free to express their own interventions at any given 
opportunity. This “last-minute” interventions are certainly not the 
ideal mode of intervention, I do not see that this is illegitimate action 
within ICANN framework and procedures. The Board can, if they so choose, 
just ignore them if they think it is the right way, or they can listen to 
this last-minute request if that makes more sense. I don’t see much 
procedural problem.

>3. Censorship

I do not think that this issues is matter of “censorship” per se.

>Last but not least, we object to the decision as fostering and 
>encouraging censorship.  Censorship is fundamentally contrary to the 
>principles of freedom of expression and access to information enshrined in 
>both the UN's International Bill of Human Rights and the WSIS' 2003 
>Declaration of Prinicples. Signatories to this letter recognize the 
>existence of wide-ranging views on appropriate policies toward sexually 
>explicit material across nations and cultures. It is an undeniable fact, 
>however, that eliminating .xxx as a top-level domain will not eliminate 
>pornography from the Internet. In fact, by openly identifying sexually 
>explicit web sites and messages, the .xxx domain might help parents and 
>governments to adopt appropriate policies on their own, e.g. by employing 
>filtering tools that block access to the .xxx TLD.  Suppressing this TLD 
>could create a precedent for political suppression of free expression on 
>the Internet using the leverage of the technical system. We believe that 
>administration of Internet identifiers should be content-neutral; 
>censorship and content regulation are appropriately the province of 
>national-level policies and should not be extended into the global 
>management of the domain name system.

This is too wide interpretation. I do not support this.  Creating .xxxx 
may also not be “content-neutral”, depending on which value you stand 
with. So, bringing in .xxx in global TLD may create more problem, and 
perhaps better leave it to national TLDs. For many Asians, at least, “xxx” 
is very much an American expression and I do not like this culturally 
biased TLD to be in the global domain.

>To conclude, we urge the ICANN Board to abide by its prior decision to 
>delegate the .xxx domain to ICM Registry. We hope they will use the delay 
>to explain to those who have raised the objections how and why the 
>delegation decision was made and why ICANN's governance model, which 
>centers on technical coordination and involves private sector, civil 
>society and technical stakeholders as well as governments, is the most 
>appropriate for management of the domain name system.

My understanding of the Board resolution on this is that they instructed 
the staff to
enter negotiation with the registry for terms and conditions, but that does not
mean that they approved the result of the negotiation. Depending on the outcome
of the negotiation, the Board is free to judge yes or no. That is how I see the
staff to be accountable to the Board. Of course, the Board should accept the
result of negotiation by the staff unless there is convincing strong reason
not to, but still there is room to say no. I do not expect the Board just
to rubber-stamp.

<end>


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