First Draft of Statement on US Commerce Department/GAC chair intervention

[Milton Mueller]

Attached as a Word doc, but also inserted below as ascii. 

Thanks to Bill Drake, Lisa McLaughlin and Lee McKnight for their input so far; others welcome.

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DRAFT CIVIL SOCIETY STATEMENT v 1.1 
8/18/05

The following signatories, all participants in ICANN and WSIS civil society, wish to express our concern over the recent request by the Government Advisory Committee's chairman and the U.S. Department of Commerce to delay, and possibly reverse, a gTLD delegation decision by ICANN's Board. 

The intervention by the U.S. Commerce Department and the GAC Chair raises three issues:

1. The role of governments in ICANN

ICANN was intended to be a multistakeholder governance authority. Under ICANN's bylaws, the private sector, civil society, the technical community and governmental representatives have roughly equal status. The GAC chair/Commerce Department intervention, however, seems to be based on the theory that governments have a superior authority to review or reverse decisions emerging from ICANN's processes. This view of the role of governments, if accepted or encouraged by the Board, would lead to a radical change in ICANN's mode of operation, one which we strongly oppose. We acknowledge the existence of legitimate demands for revising the oversight relationship between governments and ICANN. If change is to take place fairly and legitimately, however, it must occur through careful, deliberate negotiations and formal agreements among governments and all other involved constituencies * e.g., through the WSIS process * rather than through sudden actions by a few governmental representatives reacting to lobbying efforts by a handful of interest groups. 

2. The importance of stable rules and procedures

We believe that Board's willingness to entertain this last-minute intervention, while no doubt intended to be an act of accommodation and flexibility, could damage the fairness, credibility and stability of ICANN's processes if it is taken to be a precedent for the future. We believe that it is unjust to tell TLD applicants * or anyone else seeking a decision or policy from ICANN * to follow a prolonged and elaborate set of rules and procedures, and then at the 11th hour cast all those requirements aside and impose new procedures that put at risk everything they have invested. But the harm potentially goes beyond those directly affected by ICANN awards. The delay sends a message to everyone who devotes time and energy to participating in ICANN processes that their work can be rendered irrelevant at any time if politics intervene.  GAC members, including the US government, had ample opportunity to express their views on the .xxx proposal during the transparent 18-month evaluation process. At the very least, the GAC should be required to agree on a formal resolution before offering policy advice to the Board, as ICANN's bylaws stipulate. As we show in the annex to this letter, GAC members had many opportunities to learn about and express their views on the .xxx application, but passed them up. It is unclear to us why a stakeholder group unwilling to fulfill the role assigned to them by the TLD evaluation process should be granted special powers to affect the outcome. 

3. Censorship

Last but not least, we object to the decision as fostering and encouraging censorship.  Censorship is fundamentally contrary to the principles of freedom of expression and access to information enshrined in both the UN's International Bill of Human Rights and the WSIS' 2003 Declaration of Prinicples. Signatories to this letter recognize the existence of wide-ranging views on appropriate policies toward sexually explicit material across nations and cultures. It is an undeniable fact, however, that eliminating .xxx as a top-level domain will not eliminate pornography from the Internet. In fact, by openly identifying sexually explicit web sites and messages, the .xxx domain might help parents and governments to adopt appropriate policies on their own, e.g. by employing filtering tools that block access to the .xxx TLD.  Suppressing this TLD could create a precedent for political suppression of free expression on the Internet using the leverage of the technical system. We believe that administration of Internet identifiers should be content-neutral; censorship and content regulation are appropriately the province of national-level policies and should not be extended into the global management of the domain name system. 

To conclude, we urge the ICANN Board to abide by its prior decision to delegate the .xxx domain to ICM Registry. We hope they will use the delay to explain to those who have raised the objections how and why the delegation decision was made and why ICANN's governance model, which centers on technical coordination and involves private sector, civil society and technical stakeholders as well as governments, is the most appropriate for management of the domain name system. 

We encourage the GAC to develop a dialogue with ICANN management and various ICANN constituencies on the improvement of TLD addition procedures to make them more objective, impartial and inclusive, but we ask GAC to accept the fact that in the interest of fairness and stability change must be forward-looking and not retroactive. 


 
Chronology

1.	October 2000 .xxx domain first proposed; rejected in November 2000
2.	December 2002 discussion begins on a new round of sponsored TLDs (sTLDs)
3.	Public comment on sponsored TLD round opened on March 21, 2003. Main topic of discussion was whether to restrict applications to those made in the first round, which included the .xxx proposal. 
4.	Draft RFP for new sTLDs posted 24 June, 2003, during the Montreal ICANN meeting. ICM registry has a prominent booth at the Montreal meeting.
5.	Board Resolution authorizing new round at Tunisia meeting Oct 31, 2003, opening up the sTLD process to new applications as well as the existing ones.
6.	RFP finalized and published on December 2003
7.	19 March 2004 ICM Registry submitted an application under the new RFP, which was posted on the ICANN website and announced to GAC. Public comment forum opened.
8.	March * August, 2004. Proposal debated in mainstream media, including The New Republic and the Today Show. 
9.	October 2004, ICANN announced approvals of two other sTLDs (.post and .travel), mentioned .xxx as still in evaluation
10.	Dec. 2004, ICM Registry asks to make a presentation to the GAC meeting at the Capetown, South Africa ICANN meeting. Their request was declined.
11.	April 2005, ICM Registry again directly approaches the GAC asking to make a presentation at the GAC meeting during the Mar del Plata, Argentina ICANN meeting. Again their request was declined.
12.	June 17, 2005 ICANN Board approves .xxx TLD and the decision is widely announced.


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