[governance] Where are we going?

[wcurrie at apc.org]

Looking at the Wellington Communique reference as the GAC's view on the
.xxx/ICM application in the Lisbon Communique that is referenced in one of
the reasons in the ICANN Board's denial of the application, there is a
list of public policy aspects identified by members of the GAC which
include the degree to which the .xxx application would:

- take appropriate measures to restrict access to illegal and offensive
content:
- support the development of tools and programs to protect vulnerable
members of the community:
- maintain accurate details of registrants and assist law enforcement
agencies to identify and contact the owners of particular websites, if
need be; and
- act to ensure the protection of intellectual property and trademark
rights, personal names, country names, namesof historical, cultural and
religious significance and names of geographic identifiers drawing on best
practices in the development of registration and eligibility rules.

Again the question is which of these public policy aspects are covered in
the GAC's public policy objectives in its 'Operating Principles'?

The GAC further goes on to 'request confirmation from the Board that any
contract currently under negotiation between ICANN and ICM Registry would
include enforceable provisions covering all of ICM Registray's
commitments, and such information on the proposed contract being made
available to member countries through the GAC.

The GAC ends by noting that 'several members of the GAC are emphatically
opposed from apublic policy perspective to the introduction of a .xxx
sTLD.'

Principle 2 of the GAC's "Operating Principles' provides that:

The GAC shall provide advice and communicate issues and views to the ICANN
Board. The GAC is not a decision making body. Such advice given by the GAC
shall be without prejudice to the responsibilities of any public authority
with regard to the bodies and activities of ICANN, including the
Supporting Organisations and Councils.

It would appear that the GAC's request of the ICANN Board to confirm that
any contract with ICM Registry includes enforceable provisions covering
all of ICM Registry's commitments, exceeds its powers as an advisor. The
request for confirmation constructs the GAC as a public policy body to
whom ICANN must account with regard to the contents of a draft contract
that was then under negotation with ICM Registry. When this is followed up
by GAC's note regarding the opposition of some unnamed GAC members to the
.xxx application, this has the appearance of external interference/
intimidation in ICANN's deliberations on the application and by this 
being referenced in the ICANN Board's reasons for denying the application
creates the perception and perhaps the reality that board members of ICANN
were not applying their minds freely to the application before them.

If one then puts this together with Susan Crawfords dissent, in which she
states:

'I've also looked back at the GAC communique conveyed to us in Wellington,
and I have compared it to the revised agreement, appendix S. And I do
think the GAC's concerns have been adequately addressed.'

then one has to start to think that the ICANN decision is a travesty of
administrative justice, that there is grounds by ICM Registry to take
ICANN's decision on judicial review in the courts of California, and to
wonder whataction would be appropriate for civil society organisations to
take to raise its concerns formally with ICANN, the GAC and the USG.

willie

Willie Currie
Communications and Information Policy Programme Manager
Association for Progressive Communications (APC)












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