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

Carlton A Samuels carlton.samuels at uwimona.edu.jm
Thu Apr 5 15:11:58 EDT 2007



-----Original Message-----
From: Wolfgang Kleinwächter
[mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de] 
Sent: Thursday, April 05, 2007 3:11 AM
To: Michael Leibrandt; LMcKnigh at syr.edu; Mueller at syr.edu;
expression at ipjustice.org; goldstein.david at yahoo.com.au;
governance at lists.cpsr.org
Subject: AW: [governance] ICANN Board Vote Signals Era of Censorship in
Domain Names

Michael,
 
the question is not "good people vs. bad government", the question is the
procedure: Who takes what kind of decision and how a policy development and
decision making process is organized bottom up where governments are an
integrated part in the multilayer multiplayer mechanism. If ICANN does not
take content related decisions but content related decisions had to be made
by somebody else the question is who makes this deciion? One government? All
governments? Private Sector by market mechanism? Civil society? Or a - as I
propose  - a new not yet existing hybrid body which includes all
stakeholders and developes a innovative procedure how to deal with such kind
of controversial cases. 
 
And with regard to censorship: Yes I know what it is and I know also how to
bypass this and to undermine it. In the long run even with draconian
actions, censorship doesn-t work. In the .xxx case I did not follow the line
and saying that this is censorship by ICANN. What I said is that the
unclarity of the procedural environment opens the door for  a new kind of
global censorship. ICANN needs more  guidance, help, support and protection
not to be pulled into such a process. 
 
One additional point in the GAC-ICANN communication with regard to .xxx is
the legal status of an advice according to ICANNs bylaws. Article 11,
Section 2, para 1 says " i. The Governmental Advisory Committee may put
issues to the Board directly, either by way of comment or prior advice, or
by way of specifically recommending action or new policy development or
revision to existing policies. j. The advice of the Governmental Advisory
Committee on public policy matters shall be duly taken into account, both in
the formulation and adoption of policies. In the event that the ICANN Board
determines to take an action that is not consistent with the Governmental
Advisory Committee advice, it shall so inform the Committee and state the
reasons why it decided not to follow that advice. The Governmental Advisory
Committee and the ICANN Board will then try, in good faith and in a timely
and efficient manner, to find a mutually acceptable solution. k. If no such
solution can be found, the ICANN Board will state in its final decision the
reasons why the Governmental Advisory Committee advice was not followed, and
such statement will be without prejudice to the rights or obligations of
Governmental Advisory Committee members with regard to public policy issues
falling within their responsibilities."
 
In the joint GAC-ICANN meeting it was unclear whether the Wellington letter
and its follow up is a "comment" or "advice". It was said that some
governments have "strong concerns", others have "less concerns" and some are
"neutral". What is this? A "comment"? A "receommendation"? An "advice"? 
 
For me the case makes the urgent need visible to reform the GAC. To come up
with some internal GAC decision making procedures is a priority. It is
unfair from the GAC to say "some of our members have strong concerns and now
you have to decide on an issue which is not coverend by your narrow
technical mandate". 
 
Wolfgang    

________________________________

Von: Michael Leibrandt [mailto:michael_leibrandt at web.de]
Gesendet: Do 05.04.2007 09:10
An: LMcKnigh at syr.edu; Mueller at syr.edu; expression at ipjustice.org;
goldstein.david at yahoo.com.au; governance at lists.cpsr.org; Wolfgang
Kleinwächter
Betreff: Re: [governance] ICANN Board Vote Signals Era of Censorship in
Domain Names



Wolfgang and all,

Besides the fact that I'm really getting tired of this "good people - bad
governments" nonsens, one important correction to what has been said
regarding the .berlin situation:

The decision of the German Parlimanent clearly points out that only those
TLD initiatives should be supported by the Government that are "carried or
supported" by the relevant public authorities. Therefore a) the decision of
the German Parliament is fully in line with the new GAC gTLD Principles and
b) there is no contradiction at all between the different "layers" of public
authority. So I don't see why ICANN should have a problem to take a
decision, unless it would start to question internal decision making
processes at the national level - something most us wouldn't like to see,
right?

Finally to all people outside Germany: Yes, even in my country every public
authority has to act according to the existing legal framework. Those who
claim that specific (local) Government action is wrong can always go to law.
So there is actually no real need for conspiracy theories and especially no
reason to mention this in the context of "censorship" (Wolfgang, at least
you should know what censorship really means).


Michael, Berlin
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