[NA-Discuss] Triple X - Government of Canada comment to ICANN

[lists at privaterra.info]

As I mentioned it in an earlier posting, thought I should copy the
submission here.

Note the very direct comments on "mission creep" ...

regards

Robert


(straight copy/paste from the GoC submission on triple XXX)

COMMENT OF THE GOVERNMENT OF CANADA

The Government of Canada thanks ICANN for providing an opportunity to
comment on the revised proposed agreement with ICM providing for
designation of a .XXX sTLD registry.  Canada continues to participate in
the ICANN Government Advisory Committee’s discussion of the creation of
this new sTLD.  However, Canada is concerned with the direction the ICANN
process appears to be taking and the possible implication of that
direction for the future of the organization and of the Internet itself. 
The following comments are intended to draw our concerns to the attention
of the broader Internet community.

In 2006, in our response to the United States Department of Commerce
Notice of Inquiry (NOI), Canada made the following point:  “
 it is
essential to underscore and to reiterate the narrow technical nature of
ICANN’s mandate, as a body responsible for the administration of Internet
names and Internet Protocol (IP) addresses.   We recognize that these
technical issues occasionally give rise to policy considerations.  This
has led to confusion about ICANN's role and sometimes distracted the
organization from its core mandate.  Canada is of the view that, going
forward, ICANN and its stakeholders should be scrupulous in taking a very
narrow view of ICANN's policy functions, ensuring that any policy issues
considered arise directly from and/or are inextricably linked to the
organization’s core technical functions.  Any other policy issues should
be referred to other more appropriate bodies.”  Our response went on to
say:  “In considering the policy-making aspect of ICANN’s role, it is of
fundamental importance to make a distinction between broad
Internet-related public policy issues such as spam, fraud, child
pornography, etc., which are clearly outside ICANN’s mandate, and the more
focused policy issues directly related to the technical functioning of the
Internet, which are within its mandate.”

We have reviewed the content of the revised proposed agreement with ICM
and other materials provided by the company and we are concerned that many
terms of the agreement appear to require, permit or encourage ICANN to
venture far beyond its core technical functions.   Specifically, the
proposed agreement appears to give ICANN the right to monitor the
fulfilment of ICM’s obligations and policy implementation in areas beyond
what might reasonably be considered a technically-focused mandate.  Some
examples:
•	ICANN is given an opportunity to review and negotiate policies  
proposed by the Registry Operator or the International Foundation for
Online Responsibility (IFFOR), many having nothing to do with ICANN’s
technical mandate (e.g., promoting child safety and preventing child
pornography )
•	ICANN is also called upon to approve/disapprove of ICM’s choice of a
monitoring agency
•	ICANN (and the GAC) will be called upon to identify names of “cultural
and/or religious significance”   as well as “names of territories,
distinct economies, and other geographic and geopolitical names”  to be
reserved from use in the .xxx domain.

If ICANN accepts these and other similar conditions in the proposed
agreement, it is moving in a very significant way toward taking on an
ongoing policy-making and oversight role governing Internet content. 
There is little doubt that significant public policy issues arise in
taking decisions on new gTLDs.  The GAC is now in the process of
developing “Principles and Guidelines on Public Policy Issues Regarding
the Implementation of New gTLDs” to provide guidance to ICANN on a range
of those issues.  The Government of Canada considers it inappropriate for
ICANN to take on an ongoing role such as the one outlined in the revised
proposed agreement with ICM.

Internet content is subject to generally applicable laws in countries
where it is available.  There have been various instances where national
governments have successfully imposed limits on the domestic distribution
over the Internet of content found to be in breach of domestic laws.  Such
content control is controversial in many states and poses many technical
and legal challenges.  Canada remains of the view that it is not and
should not be ICANN’s mandate to set policy related to content or intended
to censor, control or interfere with content on the Internet by way of its
contracts with TLD operators.

In its discussion of various Internet related policy issues, the GAC and
its members have frequently expressed concern about ICANN assuming policy
functions which may infringe upon the policy responsibilities of sovereign
states.  The regulation of Internet content raises precisely this concern.
 Engaging ICANN in setting policy and supervisory functions related to
content is a slippery slope.  Once undertaken, the role will surely grow
case by case.

ICANN was not conceived to be the global Internet content regulator.  It
has had some difficulty establishing legitimacy and full acceptance in
carrying out its primary function related to managing the domain name
system.  ICANN’s becoming engaged in content regulation through its
contracts with TLDs risks undermining its legitimacy and purpose at a time
when these need to be reinforced and strengthened.

The Government of Canada therefore recommends that ICANN should not take
upon itself these inappropriate functions.  Instead, ICANN should look to
alternative measures more appropriate to ICANN’s technical mandate.  For
example, ICANN could oblige the TLD to require registered sites to apply
and maintain current control rating systems that enable filtering by end
users who may wish to do so.  Other technical solutions are now becoming
available that could be required to provide governments or individuals the
means to prevent access to sites deemed to be illegal or offensive.  Such
approaches would empower governments and individual Internet users to
determine appropriate content policy as they see fit, without involving
ICANN in determining such policy.