AW: [governance] ICANN Board Vote Signals Era of Censorship in Domain Names

Thu Apr 5 04:11:00 EDT 2007

Michael,

the question is not "good people vs. bad government", the question is the procedure: Who takes what kind of decision and how a policy development and decision making process is organized bottom up where governments are an integrated part in the multilayer multiplayer mechanism. If ICANN does not take content related decisions but content related decisions had to be made by somebody else the question is who makes this deciion? One government? All governments? Private Sector by market mechanism? Civil society? Or a - as I propose  - a new not yet existing hybrid body which includes all stakeholders and developes a innovative procedure how to deal with such kind of controversial cases. 

And with regard to censorship: Yes I know what it is and I know also how to bypass this and to undermine it. In the long run even with draconian actions, censorship doesn-t work. In the .xxx case I did not follow the line and saying that this is censorship by ICANN. What I said is that the unclarity of the procedural environment opens the door for  a new kind of global censorship. ICANN needs more  guidance, help, support and protection not to be pulled into such a process. 

One additional point in the GAC-ICANN communication with regard to .xxx is the legal status of an advice according to ICANNs bylaws. Article 11, Section 2, para 1 says " i. The Governmental Advisory Committee may put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies. 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."

In the joint GAC-ICANN meeting it was unclear whether the Wellington letter and its follow up is a "comment" or "advice". It was said that some governments have "strong concerns", others have "less concerns" and some are "neutral". What is this? A "comment"? A "receommendation"? An "advice"? 

For me the case makes the urgent need visible to reform the GAC. To come up with some internal GAC decision making procedures is a priority. It is unfair from the GAC to say "some of our members have strong concerns and now you have to decide on an issue which is not coverend by your narrow technical mandate". 

Wolfgang    

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Von: Michael Leibrandt [mailto:michael_leibrandt at web.de]
Gesendet: Do 05.04.2007 09:10
An: LMcKnigh at syr.edu; Mueller at syr.edu; expression at ipjustice.org; goldstein.david at yahoo.com.au; governance at lists.cpsr.org; Wolfgang Kleinwächter
Betreff: Re: [governance] ICANN Board Vote Signals Era of Censorship in Domain Names

Wolfgang and all,

Besides the fact that I'm really getting tired of this "good people - bad governments" nonsens, one important correction to what has been said regarding the .berlin situation:

The decision of the German Parlimanent clearly points out that only those TLD initiatives should be supported by the Government that are "carried or supported" by the relevant public authorities. Therefore a) the decision of the German Parliament is fully in line with the new GAC gTLD Principles and b) there is no contradiction at all between the different "layers" of public authority. So I don't see why ICANN should have a problem to take a decision, unless it would start to question internal decision making processes at the national level - something most us wouldn't like to see, right?

Finally to all people outside Germany: Yes, even in my country every public authority has to act according to the existing legal framework. Those who claim that specific (local) Government action is wrong can always go to law. So there is actually no real need for conspiracy theories and especially no reason to mention this in the context of "censorship" (Wolfgang, at least you should know what censorship really means).

Michael, Berlin
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