[LAC-Discuss] FW: [governance] ICANN Board Vote Signals Era of Censorship in

[Carlton A Samuels]

-----Original Message-----
From: wcurrie at apc.org [mailto:wcurrie at apc.org] 
Sent: Monday, April 02, 2007 10:38 AM
To: governance at lists.cpsr.org; Milton Mueller
Subject: Re: [governance] ICANN Board Vote Signals Era of Censorship in

ICANN doesn't seem to grasp that names and numbers are components of a
*regulatory* system which has to serve the requirements of administrative
fairness, which require formal processes of public hearings and decisions
that can be justified according to transparent criteria which are
logically coherent, and which require the *regulator* to be independent
from interference by any party or agency in both theory and practice.

Here the perception of bias weighs in as much as the reality of what
occurred and sometimes will trump the facts in the case of a judicial
review. In other words, perception of bias in administrative
decision-making is extremely damaging to the validity of the decisions
made and to the crediibility and legitimacy of the institution concerned.

Being an effective *regulator* means:

1 understanding this
2 being able to have procedures for decision making based on sound legal
principles of administrative law and justice
3 making it clear to all parties that this procedure is incorruptible and
having mechanisms to review its own decisions and to subject them to
external scrutiny.

It does not appear as if ICANN is up to this standard of conduct of its
affairs, and as it is expected to act in the global public interest, is
derelict in the execution of its *regulatory* functions.

Willie


>>>> froomkin at law.miami.edu 4/3/2007 10:06 AM >>>
>>The way to get out of these horrible debates is to have a
>>new process, one which is focued entirely on technical merits
>>(meeting some threshhold), and in which ICANN has none or
>>at most minimal input/veto on semantics
>
> But people, including Vittorio especially, seem not to realize that by
> vetoing .xxx that is precisely what ICANN and the world's governments
> (led by the USA) have decided NOT to do.
>
> You can come up with all kinds of after-the-fact rationalizations, as
> Vittorio does, but there is only one thing that has changed between June
> 2005 (when the ICANN Board voted to approve the application) and last
> week (when they voted to kill it) and that is the strong and sustained
> objections of governments, opponents of pornography and adult
> webmasters. .xxx was killed because it was controversial and ICANN
> lacked the spine to stand up to that kind of pressure. full stop.
>
> Let me dispose of the absurd notion that the semantics of a domain name
> doesn't affect the ability to express oneself freely online. This
> argument has been decisively rejected by a court in the US. (Taubmann).
> And it's intuitively obvious why this argument is silly. Imagine someone
> saying, "you cannot name your book "The Middle East: Peace or Aparthed"
> because that will offend the Israelis, but you can say whatever you like
> inside the book." Is that free expression? Imagine someone saying, "you
> can say whatever you like in a newspaper, but you can't put up bumper
> stickers or distribute buttons with locator information that indicates
> that this is a
> [conservative/socialist/nationalist/your-favorite-ideology-label-here]
> newspaper."
>
> The same argument was used by IPR interests in their attempt to claim
> sweeping property rights over any mention of tbeir brand. "You can talk
> about our company and its products all you like, you just can't use a
> label or domain name that tells people you are doing so." These efforts
> were deliberate attempts to suppress critical commentary on their
> brands.
>
> Vittorio's notion that the Board sat down and carefully debated whether
> .xxx met their criteria is laughable. This was the 4th vote. .xxx met
> their criteria long initially. Then the criteria changed after the USG
> objected. ICM Registry then worked hard to meet the new criteria, which
> involved more stringest contractual conditions meant to regulate
> content. It met those GAC-imposed criteria. Then the board (some
> members) complained about the content regulation. No, this is about
> "finding an excuse to kill something" not about anything else.
>
>
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Willie Currie
Communications and Information Policy Programme Manager
Association for Progressive Communications (APC)

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