[governance] Susan Crawford"s ICANN statement on the .xxx

[Michael Gurstein]

While this has been referred to, I don't know if the actual text has
been circulated on this list where it is most certainly pertinent.
 
MG

-----Original Message-----
From: Thomas Lowenhaupt [mailto:toml at communisphere.com] 
Sent: April 9, 2007 11:24 AM
To: Michael Gurstein
Subject: on governance


Not sure if you saw this. But it's ICANN board members Susan Crawford's
dissenting speech on the .xxx vote. I'm told that she got a 1 minute
standing ovation.

Tom

>>SUSAN CRAWFORD: I must dissent from this resolution, which is not only
weak but unprincipled. I'm troubled by the path the board has followed
on this issue since I joined the board in December of 2005. I'd like to
make two points.

First, ICANN only creates problems for itself when it acts in an ad hoc
fashion in response to political pressures. Second, ICANN should take
itself seriously, as a private governanced institution with a limited
mandate and should resist efforts by governments to veto what it does.

I'd like to talk about the role of the board.

This decision whether to admit a particular non-confusing legal string
into the root is put before the ICANN board because, first, we purport
to speak on behalf of the global Internet community. And second, the
U.S. Department of Commerce defers to the judgments of that community
when deciding what to tell its contractor to add to the authoritative
root zone file.

As a board, we cannot speak as elected representatives of the global
Internet community because we have not allowed elections for board
members. This application does not present any difficult technical
questions, and even if it did, we do not, as a group, claim to have
special technical expertise.

So this is not a technical stability and security question.
It seems to me that the only plausible basis on which the board can
answer the question in the negative -- so could say a group of people
may not operate and use a lawful string of letters as a top-level domain
-- is to say that the people affected by this decision have a
broadly-shared agreement that the admission of this string to the root
would amount to unjustifiable wrongdoing.
Otherwise, in the absence of technical considerations, the board has no
basis for rejecting this application.
Let me explain.
The most fundamental value of the global Internet community is that
people who propose to use the Internet protocols and infrastructures for
otherwise lawful purposes, without threatening the operational stability
or security of the Internet, should be presumed to be entitled to do so.
In a nutshell, everything not prohibited is permitted.

This understanding, this value, has led directly to the striking success
of the Internet around the world.

ICANN's role in gTLD policy development is to seek to assess and
articulate the broadly-shared values of the Internet community. We have
very limited authority. And we can only speak on behalf of that
community. I am personally not aware that any global consensus against
the creation of a triple X domain exists.

In the absence of such a prohibition, and given our mandate to create
TLD competition, we have no authority to block the addition of this TLD
to the root. It is very clear that we do not have a global shared set of
values about content on-line, save for the global norm against child
pornography. But the global Internet community clearly does share the
core value that no centralized authority should set itself up as the
arbiter of what people may do together on line, absent a demonstration
that most of those affected by the proposed activity agree that it
should be banned.

I'd like to speak about the process of this application.

More than three years ago, before I joined the board, ICANN began a
process for new sponsored top-level domains. As I've said on many
occasions, I think the idea of sponsorship is an empty one. All generic
TLDs should be considered sponsored, in that they should be able to
create policies for themselves that are not dictated by ICANN. The only
exceptions to this freedom for every TLD should be, of course, the very
few global consensus policies that are created through the ICANN forum.
This freedom is shared by the country code TLDs.

Notwithstanding my personal views on the vacuity of the sponsorship
idea, the fact is that ICANN evaluated the strength of the sponsorship
of triple X, the relationship between the applicant and the community
behind the TLD, and, in my personal view, concluded that this criteria
had been met as of June 2005. ICANN then went on to negotiate specific
contractual terms with the applicant.

Since then, real and AstroTurf comments -- that's an Americanism meaning
filed comments claiming to be grass-roots opposition that have actually
been generated by organized campaigns -- have come into ICANN that
reflect opposition to this application.
I do not find these recent comments sufficient to warrant revisiting the
question of the sponsorship strength of this TLD, which I personally
believe to be closed.

No applicant for any sponsored TLD could ever demonstrate unanimous,
cheering approval for its application. We have no metric against which
to measure this opposition. We have no idea how significant it is. We
should not be in the business of judging the level of market or
community support for a new TLD before the fact. We will only get in the
way of useful innovation if we take the view that every new TLD must
prove itself to us before it can be added to the root.

It seems to me that what is meant by sponsorship -- a notion that I hope
we abandon in the next round -- is to show that there is enough interest
in a particular TLD that it will be viable. We also have the idea that
registrants should participate in and be bound by the creation of
policies for a particular string. Both of these requirements have been
met by this applicant. There is clearly enough interest, including more
than 70,000 preregistrations from a thousand or more unique registrants
who are members of the adult industry, and the applicant has undertaken
to us that it will require adherence to its self-regulatory policies by
all of its registrants.

To the extent some of my colleagues on the board believe that ICANN
should be in the business of deciding whether a particular TLD makes a
valuable contribution to the namespace, I differ with them. I do not
think ICANN is capable of making such a determination. Indeed, this
argument is very much like those made by the pre-divestiture AT&T in
America, when it claimed that no foreign attachments to its network --
like answering machines -- should be allowed. In part, because AT&T
asserted at the time that there was no public demand for them.

The rise of the Internet was arguably made possible by allowing many
foreign attachments to the Internet called modems. We established a
process for sTLDs some time ago. We have taken this applicant through
this process. We now appear to be changing the process. We should not
act in this fashion.

I would like to spend a couple of moments talking about the politics of
this situation. Many of my fellow board members are undoubtedly
uncomfortable with the subject of adult entertainment material.
Discomfort with this application may have been sparked anew by first the
letter from individual GAC members Janis Karklins and Sharil Tarmizi, to
which Ambassador Karklins has told us the GAC exceeded as a whole by its
silence, and, second, the letter from the Australian government. 

But the entire point of ICANN'S creation was to avoid the operation of
chokepoint content control over the domain name system by individual or
collective governments. The idea was that the U.S. would serve as a good
steward for other governmental concerns by staying in the background and
overseeing ICANN's activities, but not engaging in content-related
control.
Australia's letter and concerns expressed in the past by Brazil and
other countries about triple X are explicitly content based and, thus,
inappropriate in my view.

If after creation of a triple X TLD certain governments of the world
want to ensure that their citizens do not see triple X content, it is
within their prerogative as sovereigns to instruct Internet access
providers physically located within their territory to block such
content. Also, if certain governments want to ensure that all adult
content providers with a physical presence in their country register
exclusively within triple X, that is their prerogative as well.

I note as a side point that such a requirement in the U.S. would violate
the first amendment to our Constitution. 

But this content-related censorship should not be ICANN's concern and
ICANN should not allow itself to be used as a private lever for
government chokepoint content control.

>>VINT CERF: Susan --

>>SUSAN CRAWFORD: I am almost done.

>>VINT CERF: No, no, no. I was asking you to slow down. The scribes are
not able to keep up with you. I think you want this to be on the record.

>>SUSAN CRAWFORD: I do, and I will give it to them also in typed form. 

ICANN should not allow itself to be used as a private lever for
government chokepoint content control by making up reasons to avoid the
creation of such a TLD in the first place.

To the extent there are public policy concerns with this TLD, they can
be dealt with through local laws.

Registration in or visitation of domains in this TLD is purely
voluntary. If ICANN were to base its decisions on the views of the
Australian or U.S. or Brazilian government, ICANN would have compromised
away its very reason for existence as a private non-governmental
governance institution.

So in conclusion, I continue to be dissatisfied with elements of the
proposed triple X contract, including but not limited to the rapid
take-down provision of Appendix S, which is manifestly designed to
placate trademark owners and ignores the many of the due process
concerns that have been expressed about the existing UDRP. 

I am confident that if I had a staff or enough time, I could find many
things to carp about in this draft contract. I'm equally certain if I
complained about these terms, my concerns would be used to justify
derailing this application for political reasons.

I plan, therefore, as my colleague Peter Dengate Thrush has said, to
turn my attention to the new gTLD process that was promised for January
2007, a promise that has not been kept, in hopes that we will some day
have a standard contract and objective process that can help ICANN avoid
engaging in unjustifiable ad hoc actions.

We should be examining generic TLD applicants on the basis of their
technical and financial strength. We should avoid dealing with content
concerns to the maximum extent possible. We should be opening up new
TLDs. I hope we will find a way to achieve such a sound process in short
order. Thank you.
[ applause ]

>>VINT CERF: Since we are in a voting phase, Susan, you also need to
cast your vote.

>>SUSAN CRAWFORD: I began my statement, Mr. Chairman, by casting my
vote.

>>VINT CERF: Which was no? Okay, thank you.

!DSPAM:2676,461a847774226583287887! 

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