[AFRI-Discuss] [LAC-Discuss] [EURO-Discuss] Transcript of the ICANN BoardRatifying RALO MoUs

[Carlton A Samuels]

Dear Friends:

I speak here as the convening authority for The University of the West
Indies At-Large Structure within LACRALO. I can't recall ever meeting Susan
Crawford. But she has our common gratitude for these comments to her fellow
ICANN Board members. We wish it recorded that the UWI supports the position
she took in this matter and associate ourselves in full with her remarks.

 

We also support the sentiments expressed by Joichi Ito in respect of his
suggestion that this vote demands another look at the "the raison d'etre and
the existence of ICANN and how it should progress."

 

Kind regards,

 

Carlton A. Samuels

CIO & University Director of IT

The University of the West Indies

Mona, JAMAICA

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-----Original Message-----
From: lac-discuss-bounces at atlarge-lists.icann.org
[mailto:lac-discuss-bounces at atlarge-lists.icann.org] On Behalf Of Wendy
Seltzer
Sent: Friday, March 30, 2007 9:31 AM
To: Discussion for At-Large Europe
Cc: Africa Discuss; Asia-Pacific Discuss; NA Discuss; At-Large Worldwide;
LAC Discuss
Subject: Re: [LAC-Discuss] [EURO-Discuss] Transcript of the ICANN
BoardRatifying RALO MoUs

 

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.

 

--Wendy

 

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

> 

> ----

> 

> VINT:

> 

> 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

> ICANN

> 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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cann.org

 

 

-- 

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

http://cyber.law.harvard.edu/seltzer.html

http://www.chillingeffects.org/

 

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