[AFRI-Discuss] [EURO-Discuss] Transcript of the ICANN Board Ratifying RALO MoUs

Wendy Seltzer wendy at seltzer.com
Fri Mar 30 10:30:58 EDT 2007

Let me share wit you something more substantive, Susan Crawford's
statement on her vote against the resolution killing .xxx, and in
particular, her opening concern about the non-elected nature of the Board:

SUSAN CRAWFORD: 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. ...

 >>JOICHI ITO: I vote no against the resolution, and I would like to
comment briefly. I think Peter, Susan and David have articulated most of
the points. I would also like to point out that the discussions and
arguments about how we would end up by default becoming entangled in the
content aspect of this is not sufficient reason for me to vote in favor
of this resolution. It is a reason to look at again, as Susan says, the
whole process of gTLDs but maybe even at a higher level the raison
d'etre and the existence of ICANN and how it should progress.

Susan's full statement is worth reading, so I've reproduced it below.


SUSAN CRAWFORD: I must dissent from this resolution, which is not only
weak but unprincipled. I'm troubled by the path the board has followed
on this issue since I joined the board in December of 2005. I'd 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 governanced institution with a limited
mandate and should resist efforts by governments to veto what it does.

I'd like to talk about the 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, first, we purport
to speak on behalf of the global Internet community. And second, 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 -- so could say 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 a triple X 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 on-line, 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 on line, absent a demonstration
that most of those affected by the proposed activity agree that it
should be banned.

I'd like to speak about the process of this application.

More than three years ago, before I joined the board, ICANN began a
process for new sponsored top-level domains. As I've 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 triple X, the relationship between the applicant and the community
behind the TLD, and, in my personal 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 -- that's an Americanism meaning
filed comments claiming to be grass-roots opposition that have actually
been generated by organized campaigns -- have come into ICANN that
reflect opposition to this application.

I do not find these recent comments sufficient to warrant revisiting 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. 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 in the next round -- 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 preregistrations from a thousand 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 in
America, when it claimed that no foreign attachments to its network --
like answering machines -- should be allowed. In part, because AT&T
asserted at the time that there was no public demand for them.

The rise of the Internet was arguably made possible by allowing many
foreign attachments to the Internet 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.

I would like to spend a couple of moments talking about the politics of
this situation. Many of my fellow board members are undoubtedly
uncomfortable with the subject of adult entertainment material.
Discomfort with this application may have been sparked anew by first the
letter from individual GAC members Janis Karklins and Sharil Tarmizi, to
which Ambassador Karklins has told us the GAC exceeded as a whole by its
silence, and, second, the letter from the Australian government.

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 U.S. 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 triple X are explicitly content based and, thus,
inappropriate in my view.

If after creation of a triple X TLD certain governments of the world
want to ensure that their citizens do not see triple X 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 triple X, that is their prerogative as well.

I note as a side point 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.

>>VINT CERF: Susan --

>>SUSAN CRAWFORD: I am almost done.

>>VINT CERF: No, no, no. I was asking you to slow down. The scribes are
not able to keep up with you. I think you want this to be on the record.

>>SUSAN CRAWFORD: I do, and I will give it to them also in typed form.

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 laws.

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 U.S. or Brazilian government, ICANN would have compromised
away its very reason for existence as a private non-governmental
governance institution.

So in conclusion, I continue to be dissatisfied with elements of the
proposed triple X contract, including but not limited to the rapid
take-down provision of Appendix S, which is manifestly designed to
placate trademark owners and ignores the many of the 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. I'm equally certain if I
complained about these terms, my concerns would be used to justify
derailing this application for political reasons.

I plan, therefore, as my colleague Peter Dengate Thrush has said, 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 some day
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. 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. Thank you.

[ applause ]

Nick Ashton-Hart wrote:
> Dear Colleagues:
> I thought I would provide you the text of the transcript from the public
> Board meeting today that relates to the MoUs for the RALOs from Africa,
> Asia/Australia/Pacific, and Europe. The whole transcript is available
> at: http://www.icann.org/meetings/lisbon/transcript-board-30mar07.htm
> ----
> Next item on the agenda has to do with the Regional At-Large
> Organization which has shown a substantial dynamic in the last 12
> months, rapid growth of ALSs and RALOs. One of our board members has
> been long associated with the at-large community and I would like to ask
> Roberto to introduce this motion.
>>>ROBERTO GAETANO: Thank you, Mr. Chairman. In fact, it is true that I
> have been associated with the at-large community, and I would like to
> make a comment before I read the motion, if I'm allowed.
> I think some of you remember the statement of Pedro related to the
> football, that the GAC football team has waited for him not to play once
> to win the tournament.
> And I feel ALAC community has done this to me as well. They have waited
> until I moved out, and then -- you know, and then they went ahead.
> But since I still feel part of this at-large community, although I don't
> have mandate from the at-large community, I am really very happy to see
> this happening and I'm glad that I've been given the honor of presenting
> this motion.
> So I will go on and read the motion. With whereas -- I suppose I can
> speed up a little bit because you have the text, right?
> Whereas, the ICANN bylaws, article XI, section 2, part 4 provide a
> process that allows individual Internet users to participate
> meaningfully in the work of ICANN, as the community known as "at-large,"
> and; Whereas, groups representing individual Internet users throughout
> the world have made outstanding progress in their work together,
> resulting in three regions concluding their negotiations on creating
> memoranda of understanding with ICANN to create their Regional At-Large
> Organizations, RALOs, and;
> Whereas, the three regions are the Asia/Australia/Pacific, the African
> and the European regions, an achievement which represents a considerable
> milestone in the development of the multistakeholder process which is so
> fundamental to the work of ICANN, and;
> Whereas, the ICANN board wishes to recognize and applaud the at-large
> community worldwide and especially in the African,
> Asia/Australia/Pacific and European regions for the achievement of this
> milestone in their development, and;
> Whereas the board is pleased to highlight the fact that with the
> creation of these three RALOs, the At-Large Advisory Committee is now
> composed of eight elected members and five Nominating Committee members
> with only two remaining board-appointed members, and;
> Whereas, the general counsel's office have reviewed the draft MOUs and
> determined they meet the requirements in the ICANN bylaws establish for
> the formation of a RALO and advised that a 21-day public comment period
> should be observed, and;
> Whereas, the African and European user groups have met as a part of the
> ICANN Lisbon meeting and elected their representatives to the At-Large
> Advisory Committee as a part of their work, allowing for the diverse
> communities engaged in ICANN to be present to recognize this
> achievement, and;
> Whereas, the Asia/Australia/Pacific region are in the process of
> formally providing written confirmation of their consent to be bound by
> the terms of their MOU with ICANN and shall formally sign the MOU in a
> public ceremony at the October 2007 ICANN international meeting to be
> held in the Asia/Australia/Pacific region, and;
> Whereas, the parties to the African and European MOUs composed of ICANN
> and representatives of the at-large structures in the African and
> European regions, signed it at a public ceremony on Thursday 29th March,
> 2007 at the Lisbon ICANN meeting, the execution of the agreement on
> ICANN's part contingent upon final approval by the ICANN board following
> completion of the public comment period, and;
> Whereas, the public comment periods for the African and
> Asia/Australia/Pacific concluded on the 28th March, 2007 and the public
> comment period on the Latin America and the Caribbean region concluded
> that on 4th January, 2007. Resolved, the board ratifies the memorandum
> of understanding with the European at-large structures on the same basis
> under which it was signed, and;
> Resolved, the board gives its final approval to the memorandum of
> understanding between the at-large Latin America and Caribbean region
> and ICANN and, resolved the board gives its final approval to the
> memorandum of understanding between the at-large African region and
> ICANN, and;
> Resolved, the board gives its final approval to the memorandum of
> understanding between the at-large Asia/Australia/Pacific region and ICANN.
>>>VINT CERF: Thank you very much, Roberto. Is there a second for this
> motion? I see a second from Vanda. I'm sure that if Vittorio were a
> voting board member, he would be eager to second this as well.
> Is there any further discussion of the motion? I'll ask for a vote --
> oh, I'm sorry. Njeri.
>>>NJERI RIONGE: I just want to, you know, sort of congratulate all those
> people who are involved in this process, because we now have an African
> RALO which is actually going to help to bring people together and I
> expect to and look forward to seeing more business constituency
> participation within the African community.
>>>VINT CERF: Alex, I saw your hand up and Peter also.
>>>ALEJANDRO PISANTY: Thank you. Vint, I think that if one looks at the
> organizations which were actually participating in the signing or in the
> announcements yesterday -- or in the announcements, because Asia-Pacific
> will still be signed in a few months, it's remarkable and has to go down
> on the record the diversity of types of organizations that are coming
> together. The principles and the social functions of these organizations
> are very different, yet they are coming together because they find it
> important to represent the general user of the Internet in matters that
> are general to ICANN. Mostly concerned of course we know related to
> domain names but the stability of the Internet, first of all, and also
> IP addresses and all other aspects of ICANN's work are attracting this
> interest.
> I would further underline that many of the organizations coming together
> in the at-large structures are chapters of the Internet Society. This
> underlines, first, that there's an ongoing, growing level of cooperation
> and shared interest with the society and the field which ICANN covers.
> The goodwill that's coming together here is extremely important at all
> levels, from the individuals to the chapters to the general working of
> our groups, and it's continuing to validate so now we will also be able
> to test the concept on which we have built the at-large representation
> which is this Web of trust.
> There's an enormous number of similarities between the way the at-large
> chapters are recognized and come together and, for example, the ways in
> which ISOC chapters are created and recognized. It's very much based on
> someone knowing someone having concrete positive or negative provable
> references of the good work being done by some of these organizations
> and people, and this Web of trust concept is the one that gives me, as
> it has proven -- it gives me much encouragement to assist in continuing
> this specific form of the at-large effort. It has taken time. We can all
> complain that it has taken much time to finally get these organizations
> built up and signing the MOUs, but that's also coming from the concept
> itself and the ones it has got up some speed, as it is now, it's sure
> that we can responsibly make sure that we address the concerns of these
> communities that we -- as ICANN, as a board, and from staff go ask not
> only for them to express themselves but go ask and consul!
> t explicitly on specific things, craft a specific program of work that's
> geared to our better and better planning which includes now the planning
> with the GAC, and which validates further -- and apologies for the
> reiteration here -- the work that we've been doing in the joint working
> group, the work that's being done in the ALAC and so forth. It's really
> this WSIS [non-English word] ALAC character of ICANN that is also
> extremely important and that should be underlined. The resolutions that
> we've taken today, which are some of the most momentous ones in the --
> in the history of ICANN are very well-grounded in this multistakeholder
> approach. Every part of the community has expressed itself repeatedly in
> a structured way, in it a way that has made sure that their voice gets
> incorporated into the final resolutions, and the growth of this ALAC
> part is very well connected to that aspect.
>>>VINT CERF: Thank you very much, Alex. Any other comments? I see Peter
> and then Francisco. Peter?
>>>PETER DENGATE THRUSH: I just wanted to add my congratulations to all
> of those who have worked so hard over the last few years to bring that
> to fruition, and it was a pleasure to be on stage with a glass of
> champagne yesterday at the time of the signing. I think a most
> appropriate ceremony. Well done.
>>>VINT CERF: Francisco.
>>>FRANCISCO DA SILVA: So thank you very much. I see that from Sao Paulo
> to Lisbon, good progress was achieved in this area, and I am very
> content and glad with it. The only thing that I'd note, that we have
> three speaking -- Portuguese speaking in this board and we have no
> organization in this from any Portuguese speaking country in any region,
> so I -- this is only to stimulate those of the Internet community that
> are Portuguese speaking to adhere to this movement that is in the
> beginning and I have already yesterday spoken with someone from Africa,
> from Tanzania, that they are taking -- paying attention to this, and if
> we can help, I think I can speak on behalf -- I have not spoken with my
> fellow Portuguese speaking, Vanda and Demi, but I think we are open to
> helping and supporting what is needed. Thank you. And anyhow,
> congratulations and I hope this is only a first step to a more rich -- a
> richer environment concerning the at-large.
>>>VINT CERF: Thank you very much, Francisco. I see one more comment from
> Vittorio. Yes.
>>>VITTORIO BERTOLA: Very briefly, I just wanted to thank all the board
> members for the support. Yes, it was a long and painful process. It
> started over four years ago. It took a lot of time and effort by not so
> many but not so few people, actually, and so I'm really glad we are at
> this point. There's still a lot of open issues and things to be done and
> -- but perhaps the thing I'd like to point out is that when we started
> this, it was -- well, two years before the WSIS, I'd say, and we looked
> a bit insane of this idea with continuing to involve final users in
> so-called civil society, if you want, in ICANN, but time has proven that
> perhaps the need that we were feeling at that point in time was actually
> true, and in the end, I think it's been a great value for ICANN to have
> this part of its structure in place during the last years. So I think we
> -- we wanted to be one of the more forward-looking constituencies of
> ICANN and I think we can continue to provide that value !
> as well.
>>>VINT CERF: Thank you very much. Are there any other comments before we
> go to a vote? If you vote in favor of the resolution, we will be
> approving or ratifying a collection of MOUs that are integrating the
> at-large structures into our organization.
> So let me call for a vote. All those in favor, please raise your hand. I
> count one, two, three, four, five, six, seven, eight, nine, ten, eleven,
> twelve -- I see Susan -- thirteen, fourteen, fifteen. Thank you very
> much. Fifteen to zero, Mr. Secretary.
> --Regards,
> Nick Ashton-Hart
> Director, At-Large
> PO Box 32160
> London N4 2XY
> United Kingdom
> Main Tel: +44 (20) 8800-1011]
> USA Tel: +1 (202) 657-5460
> Fax: +44 (20) 7681-3135
> mobile: +44 (7774) 932798
> email: nick.ashton-hart at icann.org
> Win IM: ashtonhart at hotmail.com / AIM/iSight: nashtonhart at mac.com /
> Skype: nashtonhart
> Online Bio:   https://www.linkedin.com/in/ashtonhart
> ------------------------------------------------------------------------
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Wendy Seltzer -- wendy at seltzer.org
phone: 718.780.7961 // fax: 718.780.0394 // cell: 914.374.0613
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society

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