Why I Voted For XXX
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.
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.
[1] “5. Rapid Takedown. Analysis of UDRP disputes indicates that the
majority of UDRP cases involve obvious variants of well-known trademarks. ICM
Registry does not believe that the clearest cases of abusive domain
registration require the expense and time involved in traditional UDRP filings.
Accordingly, ICM Registry will institute a rapid takedown procedure in which a
response team of independent experts (qualified UDRP panelists) will be
retained to make determinations within 48 hours of receipt of a short and
simple statement of a claim involving a well-known or otherwise inherently
distinctive mark and a domain name for which no conceivable good faith basis
exists. Such determinations will result
in an immediate termination of resolution of the domain name, but will not
prejudice either party’s election to pursue another dispute mechanism. The
claim requirements will be modeled after the Digital Millennium Copyright Act.
(ICM welcomes IP community input on this procedure.)”
Comments
7 Responses to “Why I Voted For XXX”
Got something to say?
First of all, for what I see, the Board did not act in a certain way because of political pressures - it did so because the proposal was evaluated and found lacking the requirements for approval according to the RFP. Of course the Board listened to everyone who gave advice including the GAC, and who knows how each Director received that, but that's not the core reason for the decision.
Shooting at governments is an easy way to get an applause at ICANN, but that's unjustified, at least for the tiny final part of the process that I observed. I think that you mistake as undue governmental pressure the fact that there are parts of the world where this proposal is widely considered unacceptable - and their mindset is as valid as yours (which I share in many ways).
While I share your frustration with ICANN getting in the way of new TLDs - and I agree with you that ICANN should finally and promptly have a process to create plenty of them - I don't think that any TLD proposal should be accepted just because it exists. I also think that the comments that were made to ICANN show that the world expects ICANN to make partly political judgements, not purely technical ones. Many wouldn't give a damn on whether .xxx met the RFP requirements or not, they just agreed or disagreed with the idea, and very strongly. ICANN cannot tell them “you are wrong, go away” - either it can convince them that this should be a purely technical evaluation, or it must accept that there need to be political evaluations as well: I'd expect this process to become more political, not less.
Generally speaking, there was never a discussion on principles, and while I share the principle that “if it does no harm then it should be approved” (though thinking that, in this case, .xxx would do harm), that's never been agreed by everyone, right? Perhaps we need to agree on that first?
On an interpersonal basis, I find that you have been a bit too hard on those who drew different conclusions than yours. It might be a matter of cultural diversity, but what you intend to be normal disagreement or statement of personal opinions, is insulting to people from other cultures. Sometimes you seem to be implying that those who disagree with you are either stupid, incompetent to serve as ICANN Directors, or in bad faith, and even if I guess that this was not your intention, that's how it is received by some.
I disagree VB. I'm not going to go into detail because I don't think it is fruitful to continue this debate much further, but I think Susan's comments are appropriate and don't really think she needs to feel bad for expressing her view on why she voted how she did. I happen to agree with her completely and don't think she's being overly hard on anyone.
I'm not saying that she should feel bad or apologize - I am just pointing out that there is a broad difference in values that brought several people from other cultures to feel personally insulted by what she said, and I was unsure if that was her actual intention - I don't think so.
I am just trying to bring some element of rational analysis to an emotionally overloaded discussion, to let each person understand the reasons of the others. I can't force anyone to respect anyone else (both ways) though
As one who was involved in all of this long before the creation of ICANN, all I can say to this is 'Same as it ever was.'
ICANN is designed to remain a tool of US interests. Sure, it could probably liberate itself from that control if it wanted to, but it doesn't, because in its dna is US political control.
Susan,
I really had the feeling that the brazilian votes were cast without consideration of the brazilian government wish. First, the transcripition shows that both of them argued for the inapropriability of ICANN start to monitor content, what it seems to be a feature of the proposed contract (as long as I understand it). And second, being a brazilian myself, I really have doubts about the government's ability to coordinate decisions at this level. ICANN issues are largely unknown by brazilian people, even by brazilian public officers. And although Vanda is a policy people, it seems that the other guy is really a more technical profile.
Besides that, the brazilian government in place is not of a social conservative stance, altough concerned with children access to the internet. The only rationale I can see for a concerted vote against the xxx domain emerges from a necessity to please the US government, if brazilians somewhat believe that by this they can pave the way for more ICANN independence _ what I would think is a twisted rationale after all.
thanks for writing. I was trying to say that if governmental concerns drove directors to vote in particular ways, that would have been inappropriate. Susan
Let me start off by saying i work in the adult industry , i own several adult “.com's” . I am a small site owner with zero agenda. I frequent a webmasters forum that is the largest voice for the internet adult community on the internet. http://www.gfy.com
I will be very clear here so people arent confused. NOBODY in the adult industry supported .xxx except those directly involved in profiting from it. You speak of “support” from the community , and this simply is NOT true.. the only support was from those directly involved in profit from the proposal.
The “pre-registrations” you speak of is not an indication of support in any way. The “feelings” of the adult community were that IF the .xxx proposal passed , the u.s. would legislate laws to force adult website owners onto a .xxx extension. thus it would be essential to own your sites applicable .xxx extension. So the scare factor made large adult website owners rush to pre-register their .xxx extension so it could not be STOLEN from themin the event the .xxx passes. This wasnt support , it was a scare tactic to garnish “fake support”
I challenge ANYONE who is actually in the adult industry and wasnt part of the .xxx proposal to step forward and agree with .xxx . I think you will find NO takers as nobody supported it or supports it..
There is a MUCH larger demand for a .KIDS domain extension. the adult community feels this is a much smarter way to keep kids and porn seperate.