ICANN Board Vote Signals Era of Censorship in Domain Names

[Robin Gross]

 From my cyberlaw blog:
http://ipjustice.org/wp/2007/04/02/icann_board_votexxx

ICANN Board Vote Signals Era of Censorship in Domain Names

The ICANN Meeting in Lisbon last week ended with an important vote by 
the ICANN Board of Directors on the application to create a new top 
level domain ".XXX". On 30 March 2007 the ICANN Board voted 9-5 to block 
the introduction of the new .XXX domain name space for non-technical 
reasons.

This vote has important implications in the larger debate at ICANN to 
set the general policy over the introduction of new top level domains. 
While Friday's vote was specific to the application for a .XXX domain 
name space, the Board Members' vote signals their position as to whether 
they are comfortable with ICANN expanding its mission to become a 
regulator of online human behavior. By voting to turn down the .XXX 
application for public policy reasons, the Board indicated it will go 
beyond its technical mission of DNS coordination and seek to decide what 
ideas are allowed to be given a voice in the new domain name space.

Unfortunately, it looks like it will be impossible for any idea that is 
politically or culturally controversial to be permitted a new domain 
name space by ICANN. ICANN is setting itself up as an institution of 
censorship and subordination to the conflicting goals of governments.

In her dissent, ICANN Board Member Susan Crawford, who is also an 
Internet Law Professor at Cardozo Law School, warned against a policy 
that would require the ICANN Board to make subjective determinations on 
tld aplications.

"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."

Crawford's remarks focused the debate back on first-principles and 
ICANN's technical mission needing to remain neutral on "content" issues.

"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."

Crawford's comments were well received by many in the ICANN community. 
"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 governance institution with a 
limited mandate and should resist efforts by governments to veto what it 
does."

In her conclusion, Crawford stated, "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 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." Earlier this year NCUC proposed a new tld 
policy in which local law, not ICANN policy, would regulate domain name 
registrations.

NCUC Chairman Professor Milton Mueller questioned GNSO Chairman Bruce 
Tonkin during the GNSO Public Forum in Lisbon on the proposal's 
censorious impact. Mueller cited as an example how the proposal would 
allow the Catholic Church to prevent a .abortion domain name space. 
Tonkin has been nominated to serve as a member of ICANN Board of 
Directors (Seat #13).

Milton Mueller: "And I think that’s tragic, that you are basically
saying — you are creating a political process of censorship. You’re
sort of abandoning 300 years of liberal ideology about freedom of
expression and saying that we are going to decide what is allowed to
be uttered at the top level based on an alleged universality that
doesn’t exist. And I would just remind you that one of the ways that
we ended several centuries of religious warfare was not by deciding
which religion was right; it was by the principle of tolerance,
which allowed all the religions to exist and separated state power
from expression and conscious and belief."

The dissenting 5 ICANN Board Members who voted against the resolution to 
prevent a TLD application for non-technical reasons deserve the public's 
appreciation: Susan Crawford, Peter Dengate-Thrush, Dave Wodelet, Joichi 
Ito, Rajasekhar Ramaraj. Thank you!

Here's how the ICANN Board Voted on the .XXX Application:
9 Yes - 5 No - 1 Abstentian (Paul Twomey)

Yes Vote = Prevent .XXX Application = Censorship at ICANN:
Vint Cerf (ICANN Chairman)
Roberto Gaetano
Steve Goldstein
Njeri Rionge
Raimundo Beca
Rita Rodin
Vanda Scartezini
Demi Getschko
Alejandro Pisanty

No Vote = Permit .XXX Application = Stick to Technical Mission & Remain 
Content-Neutral:
Susan Crawford
Peter Dengate-Thrush
Dave Wodelet
Joichi Ito
Rajasekhar Ramaraj

Susan Crawford's Thoughtful Dissent:
http://ipjustice.org/wp/2007/04/02/icann-board-member-susan-crawfords-remarks-on-vote-to-prevent-xxx-domain-name-space-application/

Mueller-Tonkin Exchange at GNSO Open Forum:
http://ipjustice.org/wp/2007/04/02/0326muellertonkin/

IP-Watch published a good article:
http://www.ip-watch.org/weblog/index.php?p=575&res=1024_ff&print=0

Here's the full transcript of the Board vote at the ICANN Board Meeting 
in Lisbon:
http://www.icann.org/meetings/lisbon/transcript-board-30mar07.htm