IP Justice on ICANN New gTLD Policy 

(2 April 2007)  The ICANN Meeting in Lisbon last week ended with an important vote by the ICANN Board of Directors on the application to create a new top level domain “.XXX”.  On 30 March 2007 the ICANN Board voted 9-5 to block the introduction of the new .XXX domain name space for non-technical reasons.

This vote has important implications in the larger debate at ICANN to set the general policy over the introduction of new top level domains.  While Friday’s vote was specific to the application for a .XXX domain name space, the Board Members’ vote signals their position as to whether they are comfortable with ICANN expanding its mission to become a regulator of online human behavior.  By voting to turn down the .XXX application for public policy reasons, the Board indicated it will go beyond its technical mission of DNS coordination and seek to decide what ideas are allowed to be given a voice in the new domain name space.

Unfortunately, it looks like it will be impossible for any idea that is politically or culturally controversial to be permitted a new domain name space by ICANN.  ICANN is setting itself up as an institution of censorship and subordination to the conflicting goals of numerous governments.

In her dissent, ICANN Board Member Susan Crawford, who is also an Internet Law Professor at Cardozo Law School, warned against a policy that would require the ICANN Board to make subjective determinations on tld applications.

“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.”

Crawford’s remarks focused the debate back on first-principles and ICANN’s technical mission needing to remain neutral on “content” issues.

“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.”

Crawford’s comments were well received by many in the ICANN community.  “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 governance institution with a limited mandate and should resist efforts by governments to veto what it does.”

In her conclusion, Crawford stated, “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 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.”  Earlier this year NCUC proposed a new tld policy in which local law, not ICANN policy, would regulate domain name registrations.

The dissenting 5 ICANN Board Members who voted against the resolution to prevent a TLD application for non-technical reasons deserve the public’s appreciation: Susan Crawford, Peter Dengate-Thrush, Dave Wodelet, Joichi Ito, Rajasekhar Ramaraj. Thank you!

NCUC Chairman Professor Milton Mueller questioned GNSO Chairman Bruce Tonkin during the GNSO Public Forum in Lisbon on the draft GNSO proposal’s censorious impact.  Mueller cited as an example how the proposal would allow the Catholic Church to prevent a .abortion domain name space.  Tonkin has been nominated to serve as a member of ICANN Board of Directors (Seat #13).

Milton Mueller: “And I think that’s tragic, that you are basically saying — you are creating a political process of censorship.  You’re sort of abandoning 300 years of liberal ideology about freedom of expression and saying that we are going to decide what is allowed to be uttered at the top level based on an alleged universality that doesn’t exist.  And I would just remind you that one of the ways that we ended several centuries of religious warfare was not by deciding which religion was right; it was by the principle of tolerance, which allowed all the religions to exist and separated state power from expression and conscious and belief.”  See full transcript of Mueller-Tonkin exchange.

Here’s the full transcript of the Board vote at the ICANN Board Meeting in Lisbon.  The next ICANN Board Meeting will take place in Puerto Rico from 25 -29 June 2007.

Here’s how the ICANN Board Voted on the .XXX Application:
9 Yes – 5 No – 1 Abstentian (Paul Twomey)

Yes Vote = Prevent .XXX Application = Censorship at ICANN

Vint Cerf (ICANN Chairman)
Roberto Gaetano
Steve Goldstein
Njeri Rionge
Raimundo Beca
Rita Rodin
Vanda Scartezini
Demi Getschko
Alejandro Pisanty

No Vote = Permit .XXX Application = ICANN Stick to Technical Mission & Remain Content-Neutral:

Susan Crawford
Peter Dengate-Thrush
Dave Wodelet
Joichi Ito
Rajasekhar Ramaraj

IP-Watch published a good article today on this issue.

See: IP Justice’s ICANN Policy Page.

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