[kictanet] why i voted fo .xxx- by susan crawford

Thu Apr 5 09:09:55 EAT 2007

i thought we should expect reasons/explanations like this from ICANN representatives on the board,
just a thought,
read on

Why I Voted for .XXX
By Susan Crawford

The
ICANN Board voted today 9-5, with Paul Twomey abstaining, to reject a
proposal to open .xxx. This is my statement in connection with that
vote. I found the resolution adopted by the Board (rejecting xxx) both
weak and unprincipled.
I am troubled by the path the
Board has followed on this issue since I joined the Board in December
of 2005. I would 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 governance institution with a limited mandate and should resist
efforts by governments to veto what it does.
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 (1) we purport to
speak on behalf of the global internet community and (2) 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 ("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 an .xxx 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 online, 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
online, absent a demonstration that most of those affected by the
proposed activity agree that it should be banned.
Process
More
than three years ago, before I joined the Board, ICANN began a process
for new sponsored top level domains. As I have 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 xxx (the
relationship between the applicant and the “community” behind the TLD)
and, in my 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 (filed
comments claiming to be grassroots opposition that have actually been
generated by organized campaigns) have come in to ICANN that reflect
opposition to this application. I do not find these recent comments
sufficient to warrant re-visiting 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, and thus 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) 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
pre-registrations from 1,000 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 when it claimed that no “foreign attachments” to its network
(like answering machines) should be allowed, in part because AT&T
asserted there was no public demand for them. The rise of the internet
was arguably made possible by allowing many “foreign attachments” to
the network - 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.
Politics
Discomfort with this
application may have been sparked anew by (1) the letter from
individual GAC members Janis Karklins and Sharil Tarmizi (to which Amb.
Karklins has told us the GAC acceded as a whole by its silence), and
(2) the letter from the Australian government.
I am not at all
opposed to receiving advice from the Government Advisory Committee. 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 US 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 xxx, are explicitly content-based and
thus inappropriate, in my view.
If, after creation of an xxx TLD,
certain governments of the world want to ensure that their citizens do
not see xxx 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 xxx, that is their
prerogative as well. (I note 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 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 law.
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 US, or Brazilian) government, ICANN would have
compromised away its very reason for existence as a private
non-governmental governance institution.
Conclusion
I
continue to be dissatisfied with elements of the proposed xxx contract,
including but not limited to the “rapid takedown” provision of Appendix
S,1 which is manifestly designed to placate trademark owners
and ignores the many 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. But
I am certain that if I complained about these terms my concerns would
be used to justify derailing this application for political reasons. I
plan, therefore, 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 someday 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, and 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.

Rebecca Wanjiku,
journalist,
p.o box 33515, 
Nairobi.00600
Kenya.

Tel. 254 720 318 925

blog:http://beckyit.blogspot.com/

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