Thread: XXX Goes Down!
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Old 30th March 2007, 08:19 AM
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XXX Goes Down!

The board seems to be approving a proposal to reject the XXX application.

Split decision. It looks as though they nearly came to blows over this. One of the dissenters is very critical of the way ICANN has acted.

It is going to be real tough for this lot to work together in future!

With the statements that have been made by dissenting board members it is difficult to see how this will not result in litigation.

Motion carried 9 For 5 Against with 1 Abstention.


Transcript of Board Meeting now available:

Some very interest comments put on the official record here!

>>PETER DENGATE THRUSH: I think it's probably better to say something now than at the time we vote. I think it's probably easier so I'll just say just a few things now and just vote when the voting comes.

I'm going to vote against this resolution and, in fact, I sought to move a motion in favor of adopting this applicant.

I've been concerned about three aspects of this application. One, the sponsorship community and the nature of that community; the enforceability of the contract; and the nature and applicability of GAC advice.

On the first, the issue of the sponsored community, I concluded that there is on the evidence a sufficiently identifiable, distinct community which the TLD could serve. It's the adult content providers wanting to differentiate themselves by voluntary adoption of this labeling system.

It's not affected in my view by the fact that that's a self-selecting community or anything about the nature of self-selection, nor as a subset of that issue, is it affected by the permanence or impermanence of that community. People may choose to be a part of it for a period and then leave. None of that affects the ability to identify members of the community at any time that's required. Nor am I affected by the withdrawal of some of the supporters of this application in recent months.

And I think it's a particularly thin argument that's been advanced that all of the rules for the application and operation of this community are not yet finalized. I think that's the nature of this process and they have to be given an opportunity to create their rules and to manage the system.

I was specifically concerned about active opposition from members of the adult content provider community who might have been members of that group. That's the first time in any of these sTLD applications we've had active opposition. And we have no metrics, either in our RFP or in any other kind of precedent, to establish what level of opposition by members of the potential community might have caused us concern.

In the end, I've concluded that the level of remuneration demonstrated by the surviving community, the number of preregistrations and their provenance is sufficient. I do not think that dissent by incumbents in a market objecting to the entrance -- the entry of a new player should be given much weight.

I think the resolution that I'm voting against today is particularly weak on this issue: On why the board thinks this community is not sufficiently identified. No fact or real rationale are provided in the resolution, and I think given the considerable importance that the board has placed on this in correspondence with the applicant and the cost and effort that the applicant has gone to to answer the board's concerns demonstrating the existence of a sponsored community, that this silence is disrespectful to the applicant and does a disservice to the community.

The contract. I've also been very concerned, as other board members have, about the scale of the obligations accepted by the applicant. I think to a certain extent, some of those have been forced on them by the process. But for whatever reason, I'm, in the end, satisfied that the compliance rules raise no new issues in kind from previous contracts.

And I say that if ICANN is going to raise this kind of objection, then it better think seriously about getting out of the business of introducing new TLDs.

It's the same issue in relation to all of the others and we either come to terms with what it means to be granting TLD contracts and the consequences that flow or we stop.

I do not think that this contract would make ICANN a content regulator. I would, like others, be very concerned if I thought that was a possibility. And I come then to the GAC advice.

I think issues were raised by the GAC as to matters of public policy concern to that committee, and I just want to record mine -- and I think the rest of the board's -- great appreciation of the value of GAC advice, and the respect required to be accorded to that. Given that it's the collective expression of will of governments here to support the ICANN mission in providing their specialist public policy advice. I think these particular concerns, however, were not well -- were not at all quantified or prioritized, but nevertheless, the applicant responded, in my view, sufficiently in relation to the concerns raised, proposing suitable mechanisms to deal with the matters raised by the GAC.

I have to also record how unhappy I and other members of the board are with the sTLD process. This applicant's been put to significant expense and suffered considerable delays for reasons largely outside its control. It's also had to suffer, as we've had, lots of mistaken assertions about adult content, much of which raises issues well outside the relatively narrow scope of the RFP and the issue which the applicant had to meet.

So in that regard, I welcome the developing work in the GNSO to install a regular, repeatable, hopefully contentiousless process for the introduction of new TLDs. So for those reasons, I vote against this resolution, and would prefer to have been voting in favor of an applicant -- of the application to adopt it.

>>RITA RODIN: Thank you, Vint. I'm not going to repeat what other board members have said. This was a very difficult decision for us. Particularly for me. I wasn't present at a lot of the earlier discussions that the board had about triple X, so I looked back on a lot of materials and I've spoken to a bunch of people in the community and when I listened to the instructions of our general counsel that my obligation as a board member is to take a look at this application, this applicant, to look at the sponsorship criteria and the content that has been proposed, when I do that myself, I believe that I am compelled to vote no for this application.

As others have said, I don't believe that this is an appropriate sponsored community. I think it's inappropriate to allow an applicant in any sTLD to simply define out what could potentially be any people that are not in favor of a TLD, and particularly in this case where you define those that aren't in favor of this TLD that are part of the adult webmaster community as irresponsible.

I do think that this, as others have said, will be enforcement headache for -- an enforcement headache for ICANN. It's going to force the board and the community to rule on the appropriateness of content and other controls that may be implemented by this TLD. As others have said, I think that's way beyond the technical oversight role of ICANN's mandate.

And I just wanted to mention that I almost feel as though if there were an exclusive TLD in silo for adult content on the Internet, I might actually vote in favor, but since it's not -- right? -- there's porn all over the Internet and since there isn't a mechanism with this TLD to have it all exclusively within one string to actually effect some of the purposes of the TLD -- that is, to be responsible with respect to the distribution of pornography, to prevent child pornography on the Internet -- I think that this is too early a concept and, again, I will vote against.

I just want to make one final statement that the board has had very rigorous discussion on this, as everyone has said. It's been an extremely difficult decision, and I want to assure the community that this is not the result of some secret sort of behind-the-scenes government action or any other inadvertent pressure, but, indeed, a very robust and soul-searching debate among my fellow board members. Thank you.

>>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.
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Last edited by Rubber Duck; 30th March 2007 at 12:55 PM.. Reason: Automerged Doublepost
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