Proposed NCUC/NCSG comment on the ICM Registry case

[Milton L Mueller]

> -----Original Message-----
> - The appeals process is not binding it is only advisory. While we can
> advocate that it be listened to, does it make sense for us to call it
> binding.

Nothing in the statement says the IRP is binding. The word "binding" does not appear once in the statement.

> My specific
> problem is with the sentence:
> 
> "An appeals process that has effect only when the board feels like
> complying is no accountability mechanism at all."
>
> I recommend dropping this sentence as it adds nothing but confusion
> about what sort of process this appeals mechanism is supposed to be.

It sounds to me like you are disagreeing with the word "complying" and not with the whole sentence. This requires some explanation.

There has been a long discussion and debate about the nature of the IRP. The IRP is indeed not binding, and that was recognized in the .xxx decision. However, the only reason the IRP is not binding is because ICANN's law firm and management insisted that it not be, and basically threatened the world that it would not provide any appeals mechanism at all if it was a binding one. The nonbinding nature is in other words a political compromise.

So now we are saddled with an expensive, burdensome and legalistic process that resembles arbitration in almost all respects, except that it is not binding. Which leaves us with the critical question: if an IRP slaps ICANN's wrist and tells it it did wrong, and ICANN ignores the result, is ICANN being accountable? 

My answer is NO. 

The message this public comment has to convey, and convey strongly to ICANN, is that they lost a case on the merits and SHOULD comply with it. If they do not, it shows that the accountability mechanism they have touted is not real. They may have the legal right to do so but it is very bad for ICANN, for us, and for accountability. 

So your claim that the statement breeds "confusion about what sort of process this appeals mechanism is supposed to be" is true in some sense, but that is quite intentional. Only it is not "confusion" I am breeding but higher expectations about what we can and should expect from this organization. 





That is in some sense a separate debate


> 
> - while I self identify as supporting and even advocating free
> expression and civil liberties and I think many if not most of the NCSG
> members also self identify that way, I do not think anything is gained
> by including "As advocates of civil liberties and freedom of expression,
> " at the beginning of point 2.  If anything it weakens the statement by
> identifying it as merely the statement of advocates as opposed to being
> a statement that all reasonable people might make.  I suggest dropping
> the phrase.
> 
> Thanks for putting together the draft.
> 
> 
> a.
> 
> On 2 May 2010, at 22:36, Milton L Mueller wrote:
> 
> > Dear all:
> > Robin asked me to do a first draft so here it is.
> > Comments must be filed by May 10
> > --------------------------------------------------------
> > The Noncommercial Users Constituency and Noncommercial Stakeholders
> Group (NCSG) represents nearly 200 nonprofit organizations, public
> interest advocacy groups, educators, researchers, philanthropic
> organizations and individuals.
> >
> > NCUC and NCSG believe that ICANN has a very simple choice to make in
> its handling of the .xxx domain.  The board can accept the fact that
> ICANN made serious mistakes in its handling of the matter and then make
> a good faith effort to rectify those mistakes - or it can refuse to do
> so. That is all there is to this decision. The complicated "process
> options" offered by the general counsel are distractions. Either ICANN
> accepts the determination of the independent review panel and creates
> the .xxx domain, or it doesn't. Those are the only "options" of
> relevance to the community.
> >
> > Noncommercial users believe that the board should accept the decision
> of its independent review panel and prepare to add .xxx to the root.
> Anything less will raise serious doubts about ICANN's accountability
> mechanisms and will undermine the legitimacy of the corporation and its
> processes. The contract offered to ICM Registry should be based on the
> same template as that offered to .mobi, .jobs and other contemporaneous
> applicants for sponsored TLDs.
> >
> > Noncommercial stakeholders are deeply interested in the outcome of the
> .xxx application for two reasons.
> > 1)      As supporters of improved accountability for ICANN, we would
> be deeply concerned by a Board decision that ignored ICANN's own
> Independent Review process. The IRP is one of ICANN's few external
> accountability mechanisms. The .xxx case was the first test of that
> process. A group of distinguished and neutral panelists reviewed the
> record of this case in extensive detail, and decided against ICANN. It
> would be shocking if ICANN chose to ignore or circumvent the
> requirements of the IRP decision. An appeals process that has effect
> only when the board feels like complying is no accountability mechanism
> at all. We also feel that failure to comply with the IRP will encourage
> dispute settlement through litigation, which is not in the interests of
> ICANN or its community.
> > 2)      As advocates of civil liberties and freedom of expression, we
> believe it is unacceptable for a TLD string to be rejected simply
> because some people or some governments object to it. ICANN must not
> become a tool of those who want to discourage or censor certain kinds of
> legal content. We believe that ICANN should not be turning its
> coordination of top level domain names into mechanisms of content
> regulation or censorship.
> >
> > To conclude, we ask the Board to look past the noise that will surely
> be generated by any public discussion that touches on pornography. This
> public comment period should not be a poll assessing the popularity of
> the .xxx domain. The board must focus exclusively on compliance with its
> own appeals process and strive to maintain ICANN's integrity.
> >
> >
> > Milton Mueller
> > Professor, Syracuse University School of Information Studies
> > XS4All Professor, Delft University of Technology
> > ------------------------------
> > Internet Governance Project:
> > http://internetgovernance.org
> >