Features of the week:Recent rejection of the XXX Top Level Domain (TLD) sponsored application by the global Internet co-ordinator, ICANN, has brought to fore the political aspect of Internet Governance, REMMY NWEKE reports.
Introduction:
The global Internet coordinating organisation, the Internet Corporation for Assigned Names and Numbers (ICANN) ended its 28th public session in the Portuguese city of Lisbon, which held between Friday, March 16 and Friday, 30, this year, with the ripples are yet to die down.
One remarkable subject that seems to have dominated debate afterwards within the Internet community has been the decision of ICANN’s majority board members refusal to approve .XXX Top Level Domain (TLD) sponsored application, which attracted attacks on some members of the board for their stand, particularly Ms Susan Crawford.
Historically, dot XXX, according to Free and Open Source Software (FOSS)-based encyclopaedia, Wikipidia Online, is a proposed TLD intended as a voluntary option for sexually explicit sites on the Internet. The name is inspired by the concept of ‘X’ rating, commonly now associated with pornographic movies as ‘XXX’.
Champion Infotel recalls that this was the third time this particular TLD application has been sponsored by ICM Registry and it received overly rejection for the trice.
Board’s vote on .XXX
There were 14 members of ICANN board in attendance consisting of its chairman, Dr. Vint Cerf, President Paul Twomey, Roberto Gaetano, Steve Goldstein, Njeri Rionge, Raimundo Beca, Rita Rodin, Vanda Scartezini, Demi Getschko, Alejandro Pisanty, Susan Crawford, Peter Dengate-Thrush, Dave Wodelet, Joichi Ito and Rajasekhar Ramaraj.
However, during the voting process, the board was divided with the voting pattern indicating that Dr. Paul Twomey, abstained, while Cerf, Gaetano, Goldstein, Rionge, Beca, Rodin, Scartezini and Getschko voted for the rejection of the application, whereas Pisanty, Crawford, Dengate-Thrush, Wodelet, Ito and Ramaraj, voted in support of the board’s approving the .XXX TLD.
Hence, the board’s voting exercise ended with the majority carrying the day, that is, eight against five. According to industry watchers, the voting pattern denotes those who voted ‘yes’ was to prevent the .XXX application, therefore brewing censorship in the ICANN coordinating procedure, as those who voted ‘no’ to permit .XXX application, was reported to had done so on the grounds of sticking to technical mission and the same time remaining content neutral.
Speaking at the end of the session attended by over 830 participants from 81 countries globally, ICANN Chairman, Dr Vint Cerf, described it as “One of ICANN’s busiest and issue-intensive meetings and it helped ICANN make substantial progress on numerous fronts.”
Internet community at cross roads over .XXX
Obviously one of those issue-intensive meetings was the session on .XXX TLD, which has left the Internet stakeholders at cross roads.
Notable among the issues on .XXX was series of online attacks on directors of ICANN, mostly on those who voted in support of the idea by the proponents of .XXX and those that chose to remain neutral, of which one of the directors Ms Susan Crawford came under severe assault for daring to vote in support of .XXX approval.
Justifying her position despite the board voting ended 9 including absenting Twomey, against 5, Ms Crawford in her weblog; http://scrawford.blogware.com, reeled out some issues on what she thinks the future of the Internet coordination should be, dwelling on her odyssey, role of the board, process and politics of Internet governance.
Susan’s musing
Declaring her statement in connection with the aforementioned board’s vote, Ms Crawford described the resolution adopted thereof in rejection of .XXX as both “weak and unprincipled,” expressing dissatisfaction on the path the board took on this issue, narrowing it down to since she joined the team in December 2005.
She made two assertions, saying that first ICANN only creates problems for itself when it “acts in an ad hoc fashion in response to political pressures.” Secondly, “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.”
On the role of the board, Ms Crawford noted that the decision, whether to admit a particular non-confusing, legal string into the root, is put before the ICANN board because, it purports to speak on behalf of the global internet community and the United States Department of Commerce could defer 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 does 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; that 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,” she said.
Ms Crawford continued by explaining that the “Most fundamental value of the global internet community is that people who propose to use the internet protocols and infrastructure 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.’ With understanding, this value, has led directly to the striking success of the internet around the world.”
ICANN’s role in the generic Top Level Domain (gTLD) policy development, she noted, is to seek to assess and articulate the broadly shared values of the Internet community, stressing that as a board, they have very limited authority and can only speak on behalf of that community.
“I am personally not aware that any global consensus against the creation of an .XXX 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 online, 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 online, absent a demonstration that most of those affected by the proposed activity agree that it should be banned,” she pointed out.
Faulty process?
Ms Crawford also recalled that over three years, that is, before her joining the board, ICANN began a process for new sponsored top level domains, emphasising that the idea of ‘sponsorship’ is an empty one, because, “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.”
This, notwithstanding, she said that on the vacuity of the ‘sponsorship’ idea, the fact is that ICANN evaluated the strength of the sponsorship of .XXX based on the relationship between the applicant and the ‘community’ behind the TLD and concluded that this criteria had been met as of June 2005, followed by ICANN’s negotiation of specific contractual terms with the applicant.
She alleged that since then, whether real or ‘astroturf’ comments were filed, claiming to be grassroots opposition that have actually been generated by organized campaigns; which have come in to ICANN that reflected opposition to this application, asserting, “I do not find these recent comments sufficient to warrant re-visiting the question of the ‘sponsorship’ strength of this TLD, which I personally believe to be closed.”
Ms Crawford expressed dismay that no applicant for any ‘sponsored’ TLD could ever demonstrate unanimous and cheering approval for its application, noting that the board, has no metric against which to measure this opposition, and thus has 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,” she declared.
For her, what is meant by ‘sponsorship’ is a notion that she hopes should be abandon, because if there is enough interest in a particular TLD that it (TLD) will be viable, adding that the idea of registrants participating in and being bound by the creation of policies for a particular string should not uphold, however, she noted that both of these requirements, however, have been met by this applicant (ICM Registry).
She pointed out there is clearly enough interest including more than 70,000 pre-registrations from 1,000 or more unique registrants who are members of the adult industry, and the applicant has undertaken to the board 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,” she said, stressing that indeed, this argument is very much like those made by the pre-divestiture AT&T when it claimed that no “foreign attachments” to its network, like answering machines should be allowed, in part because AT&T asserted there was no public demand for them. The rise of the Internet has arguably made possible by allowing many “foreign attachments” to the network , otherwise called modems.
“We established a process for Special TLDs (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,” Ms Crawford lamented.
Politics of censorship
Politically, Ms Crawford noted that the discomfort with this application may have been sparked anew issues, citing for instance the letter from individual Government Advisory Committee (GAC) members, namely Janis Karklins and Sharil Tarmizi, of which Amb. Karklins was reported to have informed that GAC acceded as a whole by its silence, as well as the letter from the Australian government, stressing that her position is not an opposition to receiving advice from the GAC. 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.
She said, “The idea was that the US 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 .XXX, are explicitly content-based and thus inappropriate, in my view.”
She argued that if, after creation of this controversial TLD, certain governments of the world want to ensure that their citizens do not see XXX content, it is within their prerogative as sovereigns to instruct internet access providers physically located within their territory to block such content.
Also, she said that if certain governments want to ensure that ‘all’ adult content providers with a physical presence in their country register exclusively within XXX, that is, their prerogative as well, noting that such a requirement in the United States would violate the First Amendment to ICANN 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 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 law.
“Registration in or visitation of domains in this TLD is purely voluntary,” she said, highlighting that if ICANN board were to base its decisions on the views of the Australian, US or Brazilian government, then ICANN has compromised its very reason for existence as a private non-governmental governance institution of international repute.
Reactions
Responding to the rejection of the XXX application, a California-lawyer, Wendy Seltzer, said there are lots to be learnt from the politicking in the ICANN’s board and rejection of the application for the third time.
He wondered if ICANN would stick to its rule and make a final resolution even for the future related applications and if ICM would conversly accept or disagree and thereby heading to the law court for litigations.
Another vocal member of the Internet community, Vittoria Bertola, said that first of all, based on what she saw as the outcome of ICANN meeting at Lisbon, the board did not act in a certain way because of political pressures, assuming that the board did so because the proposal was evaluated and found lacking the requirements for approval according to the Request for Proposal (RFP).
Of course, she said that the board may have listened to everyone who gave advice including the GAC, and who knows how each director received that, but that’s not the core reason for the decision, and condemned the Crawford’s action of rebuking her colleagues on the board, saying, shooting at governments is an easy way to get an applause at ICANN, but that’s unjustified, at least for the tiny final part of the process that she observed.
“I think that you (Susan) mistake as undue governmental pressure the fact that there are parts of the world where this proposal is widely considered unacceptable and their mindset is as valid as yours which I share in many ways,” she said.
While sharing in Susan’s frustration with ICANN getting in the way of new TLDs and the need to get ICANN to promptly have a process to create plenty of them, she did not think that any TLD proposal should be accepted just because it exists. “I also think that the comments that were made to ICANN showed that the world expects ICANN to make partly political judgements, not purely technical ones. Many wouldn’t give a damn on whether .XXX met the RFP requirements or not, they just agreed or disagreed with the idea, and very strongly. ICANN cannot tell them “you are wrong, go away” - either it can convince them that this should be a purely technical evaluation, or it must accept that there need to be political evaluations as well: I’d expect this process to become more political, not less,” Bertola said.
Cultural diversity
Speaking further, Bertola said, there was never a discussion on principles, and while still in agreement with Crawford on principles, mostly on the concept, “If it does no harm then it should be approved” though she noted that by thinking that, in this case of .XXX would do harm, because it has never been agreed by everyone and “Perhaps we need to agree on that first?”
On interpersonal basis, Bertola claimed that Ms Crawford was a bit too hard on those who drew different conclusions than hers, adducing that it might be a matter of cultural diversity, citing an instance that what you intend to be normal disagreement or statement of personal opinions, is insulting to people from other cultures.
“Sometimes you seem to be implying that those who disagree with you are either stupid, incompetent to serve as ICANN directors or in bad faith, and even, if I guess that this was not your intention, that’s how it is received by some,” she said.
For the President, Nigeria Internet Group (NIG), Mr. Lanre Ajayi, the rejection of .xxx was not a surprise to him, because it is important to recognise that though the Internet is capsulated in a global village, “we’re in a world of diversified culture and cultural values.
He pointed out that majority of the world’s populace particularly the ones from Asia and Africa are averse to the concept of officially condoning pornographic materials and activities.
“I support the action, in spite of the argument in some quarters that it will help Internet users who may want to avoid porn site to easily do so. The fact is that it will stamp an undue authority on such activities,” he posited.
ICM reacts
ICM registry while responding to this development called for the release of details of a court decision which ruled that the Departments of Commerce and State failed to justify withholding documents that reflected the U.S. government’s role in meddling with ICANN’s consideration of .XXX.
Chief executive, ICM Registry, Mr. Stuart Lawley, informed that the Court observed, “apparently in response to pressure from the U.S. government and other concerned parties - the [ICANN] Board postponed its vote on the measure at eight subsequent board meetings.”
According to Lawley, the court further ordered the government to turn over the documents or fully explain its failure to do so as part of official agency deliberations about the role of the U.S. government in ICANN’s approval of .xxx. It discounted the government’s excuses for withholding or redacting key documents, and admonished the departments that “[d]escriptions of mere opinions relating to ICANN’s consideration of .XXX - absent, for example, corresponding assertions that such opinions concern DOC’s role in ICANN process and contribute to an ongoing dialogue or debate regarding that role - do not enjoy deliberative process privilege.”
Lawley, therefore welcomed the court ruling, saying, “Recent events remind us that intergovernmental email exchanges can be more illuminating of agency actions than official explanations.”
Conclusion
As this war of words continues within the Internet community on how the global co-ordinating body, ICANN should be seen as conducting itself as unbiased umpire, one thing that stakeholders must have in mind is that situation enable repositioning and repositioning paves the way for the enabling guidelines to be enacted.
Therefore, the incident at Lisbon, especially on the rejection of .XXX TLD, should not be seen as an end, but a means to an end, which in the overall interest of Internet community unassumingly creates the vacuum required for improvement, definitely without loosing sight on both political and cultural implications to ICANN decisions. So, let the politicking continue, after-all, man is a political animal.