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ICA Opposes This Proposal

  • To: "cyber-safety-petition@xxxxxxxxx" <cyber-safety-petition@xxxxxxxxx>
  • Subject: ICA Opposes This Proposal
  • From: Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>
  • Date: Sun, 5 Apr 2009 17:35:47 -0400

Attorneys at Law
1301 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-1701
Philip S. Corwin, Partner

By E-Mail

               April 5, 2009

Board of Directors
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601

Re: CyberSafety Constituency Petition and Charter

Dear Members of the ICANN Board:

This comment letter is submitted by the Internet Commerce Association (ICA) in 
regard to ICANN’s March 5th notice establishing a 30 day public consultation 
forum for comments on the proposed CyberSafety Constituency Petition and 
Charter (CCPC).

ICA is a not-for-profit trade association representing the direct search 
industry. Its membership is composed of domain name registrants that invest in 
domain names (DNs) and develop the associated websites, as well as the 
companies that serve them. Professional domain name registrants are a major 
source of the fees that support registrars, registries, and ICANN itself. The 
ICA is an International Member of ICANN’s Commercial and Business Constituency 
and presently has more than 120 members located in the United States and 
thirteen other nations.

Executive Summary

The ICA opposes the CCPC for the following reasons:

 *   The CCPC proposes to address issues that bear no reasonable and 
appropriate relationship to ICANN’s narrow mission of DNS technical management.
 *   The CCPC’s proposed member eligibility criteria is impermissibly 
 *   The CCPC petition appears to be opaque and misleading in regard to its 
proponents’ true aims.
 *   The DNS should not become a content zoning and rating system, particularly 
to facilitate a particular social policy agenda


Social Policy Issue Constituencies Are Incompatible With ICANN’s Technical 
The threshold question is: Should ICANN permit this type of constituency to 
come into existence? We think not.
ICANN’s Mission is a limited one. As stated in its Bylaws –
Section 1. MISSION
The mission of The Internet Corporation for Assigned Names and Numbers 
("ICANN") is to coordinate, at the overall level, the global Internet's systems 
of unique identifiers, and in particular to ensure the stable and secure 
operation of the Internet's unique identifier systems. In particular, ICANN:
1. Coordinates the allocation and assignment of the three sets of unique 
identifiers for the Internet, which are
a. Domain names (forming a system referred to as "DNS");
b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and
c. Protocol port and parameter numbers.
2. Coordinates the operation and evolution of the DNS root name server system.
3. Coordinates policy development reasonably and appropriately related to these 
technical functions. (Emphasis added.)
The CCPC appears to have a focus on issues that are not reasonably and 
appropriately related to coordination of the technical functions of unique 
Internet identifiers and operation of DNS root servers. As stated in its 
Petition Charter letter at 
The focus of the new constituency is Internet safety issues. I am concerned 
that, as Internet policies are developed at ICANN, the interests of families, 
children, consumers,
victims of cybercrime, religions and cultures become better represented. For 
the new
technology society, we need carefully to craft mechanisms involving law and 
that balance unfettered free speech and anonymity with some protections against
exploitation of the most vulnerable, the ability to address and reduce criminal 
and . . . the right of Internet users to have choices in the nature of their 
This new constituency will be organized around both an interest in Internet 
security, and
around a community of previously unrepresented users, including parents, 
women, cultural organizations, religions, and others.
The CSC Constituency may also provide home for law enforcement, consumer 
protection groups, and other concerned about Internet abuse.

Even a close reading of this description reveals few specifics as to what the 
mission of the CCPC is supposed to be. However, it seems to involve multiple 
matters, including general consumer protection, law enforcement, religious and 
cultural matters, free speech and privacy, and others that are more properly 
the province of governments, their agencies, and nongovernmental organizations 
other than ICANN. ICANN was not constituted to be and should not become the 
legislature of the Internet; that is, a general policymaking body dealing with 
multiple issues, many of which relate to particular content transmitted across 
the Internet. Yet the CCPC aims to facilitate better representation of specific 
categories of individuals and organizations as if ICANN were such a legislative 
body. Nor should ICANN sanction the propagation of narrowly focused issue 
groups within its structure, no matter how well intentioned their proponents 
may be, where those constituencies bear no direct relationship to the continued 
safe and stable operation of the DNS. Allowing constituencies based upon 
concerns that have no direct relationship to the technical management of the 
DNS could initiate a proliferation of political causes propagating within 
ICANN. This in turn could introduce interest group politics that could create 
deep fissures within ICANN and distract its attention and resources from the 
technical management issues that are its proper focus.
Further, up to now GNSO constituencies have been based upon contractual 
relationships with ICANN or specific commercial and civil society interests in 
the DNS that have been in place since ICANN’s inception. This is in keeping 
with the overarching original intent that ICANN be a private-sector led 
organization focused on DNS management. The CCPC, on the other hand, is 
proposed as an exclusively non-profit sector initiative based upon a particular 
social concern unrelated to DNS management.
CCPC’s Exclusionist Eligibility Criteria
Even if the CCPC had a proper focus, its proposed charter is not acceptable. 
CyberSafety, broadly defined, is an issue of major interest and concern for a 
broad array of parties already active within ICANN — including registries, 
registrars, ISPs, IP interests, and general business interests including 
domainers. But the proposed charter proposes to exclude all of them, stating –
5.0 Eligibility for Membership.
5.1 Organizations.
5.1.1 Eligible Organizations. To be eligible to be a Member of the CSC, a Large 
or Small
Organization must be:
a. Either:
i. An organization incorporated or otherwise legally established as a 
entity (in countries that have such a provision in their
corporation law); or
ii. An unincorporated organization, or organization operating in a country
without provisions for non-commercial incorporation, that operates on a
non-profit basis, primarily for non-commercial purposes, and has at least
ten (10) members; or
b. The exclusive user of at least one (1) domain name used primarily for 
purposes; or
c. Engaged in activities that are primarily non-commercial and public service
oriented, including but not limited to, policy advocacy, educational, religious,
charitable, scientific, or artistic purposes.
5.1.2 Ineligible Organizations. An organization is not eligible to be a CSC 
Member if it:
a. Is a political organization whose primary purpose is to elect government
b. Exists as an association of, or for the benefit of, commercial entities 
(even if it is
non-profit in form), such as industry trade associations;
c. Provides a service under a contract or memorandum of understanding with
d. Is currently represented in ICANN through another Supporting Organization or
GNSO Stakeholder Group. Organizations that participate in ICANN with the 
AtLarge Advisory Committee (ALAC) are not excluded by this criterion.
5.2 Individuals.
5.2.1 Eligible Individuals. To be eligible to be a Member of the CSC, an 
individual must:
a. Own at least one domain name for personal or family use of a predominantly
non-commercial nature;
b. Demonstrate substantial history, experience or knowledge about, or advocacy
for, policy development with respect to the Internet or the interests of a
substantial category of non-commercial Internet users, including but not limited
to families, children, religions, educational institutions, crime victims, spam
victims; or
c. Be employed by, or a member of, a large non-commercial public interest
organization, such as a university, college, or non-government organization that
qualifies as an Organization under this Charter and is not a Member Organization
of the CSC.
d. Identify on her/his membership application which one or more of the three (3)
above categories in this subsection apply.
5.2.2 Ineligible Individuals. An individual is not eligible to be a Member of 
the CSC if
a. Is currently represented in ICANN through another Supporting Organization or
GNSO Stakeholder Group. Individuals that participate in ALAC are not
excluded by this criterion;
b. Owns domain names for, or is concerned with domain name policy primarily
with regard to, business or commercial purposes, including without limitation,
investors in the domain name market, for-profit professionals, sole proprietors,
and professional consultants. An individual who falls into this subsection, but 
otherwise qualified to be a CSC Member, may be considered eligible by the
Membership Officer, subject to approval by the EC, upon finding substantial
evidence that such individual’s primary concern in participating in ICANN
processes is with respect to non-commercial public interest aspects of domain
name policy and that their membership would advance the mission of the CSC;
c. Is, based on the Membership Officer’s determination subject to appeal to the 
linked organizationally and financially to the Internet policy-related lobbying 
activities of commercial firms. (Emphasis added.)
The CCPC’s exclusionary membership criteria provide ample reason to reject its 
petition on that ground alone. We understand that the CCPC is proposed as a 
component of the new Non-Commercial Stakeholder Group (NCSG), but believe that 
if a new constituency of this type were to be created it must be open to broad 
commercial and noncommercial participation by all who share CyberSafety 
concerns, including the private sector that is supposed to lead ICANN. That 
inclusiveness would in turn help guarantee that the CCPC’s agenda and 
activities cannot be captured and controlled by a narrow interest with a 
predetermined social policy objective.
Hidden Agenda
Next, there is reasonable reason to be concerned that the CCPC’s proponents 
have been less than candid and transparent in describing their real agenda. A 
March 18th article appearing at 
 that the CCPC petition is being backed by CP80.org and describes its aim as 
CP80.org wants all adult material banned from Port 80, the standard protocol 
port for the web, and confined to a new port. It also suggests that “ISPs could 
simply block all IP addresses originating from a non-compliant country”.
Indeed, the signatory to the CyberSafety Petition Charter letter is “Cheryl B. 
Preston, Edwin M. Thomas Professor of Law, Brigham Young University, CP80 
Foundation (Emphasis added). This self-identification explicitly links the 
proponents of the CCPC to CP80.org and demands further inquiry.
The apparent linkage between the CCPC and CP80.org suggests that the proponents 
of the CCPC have been deliberately opaque as regards their true intent; this 
apparent omission must be addressed before any decision is made in regard to 
this proposal. Is the CCPC to be truly a CyberSafety Constituency, or is that 
amorphous label really a Trojan Horse for a DNS Zoning Constituency?
No decision on this petition should be made by ICANN’s Board until the 
constituency’s proponents have responded to the appearance that their 
overriding aim is to establish an ICANN-sanctioned body to advocate a 
segregation of certain content to a designated port. ICANN is devoted to 
transparency, and the community deserves full transparency on this matter. If 
the constituency’s proponents intend to utilize it for the pursuit of a 
specific social policy agenda that it is a critically important fact that 
should inform the entire ICANN community and the Board.
DNS Should Not Be A Content Zoning Tool
Finally, if the aim of the CCPC is to segregate certain content onto a 
specifically mandated port, should that be furthered? The answer is absolutely 
and positively no.
As opposed to the CCPC petition, the CP80.0rg website is completely transparent 
as regards its aims. A “training” slide show describing the “CP80 Internet 
Channel Initiative” implicitly references ICANN when it declares:
The governing bodies responsible for day-to-day management of the Internet 
itself are doing nothing to protect children from Internet pornography.
It then goes on to describe its “Technological Solution”:
…to organize and categorize all content on the Internet into two ranges of 
ports or Internet channels: The Community Ports and Open Ports…the Open Ports 
would be for all content considered “adult” and inappropriate for minors. 
(Emphasis added.)
CP80.org’s agenda, while mistaken, is certainly ambitious. It advocates 
reviewing and dividing every last bit of content traveling across the Internet 
into two categories, and its training instructional makes clear that the 
content to be banned from the Community Port includes not just the illegal 
category of “all pornographic content” but also content that is deemed “adult” 
or “inappropriate for minors”. One wonders how such Web 2.0 successes as 
YouTube, hosting a broad range of user-generated content - including some that 
might be judged inappropriate for minors - would fare under this proposal.
The segregation of content to the Open Port is intended to facilitate user 
blocking. Cp80.org makes clear that this goes beyond facilitating a consumer’s 
instructions to its ISP to block all Open Port content:
Part of the solution would include the user’s ability to block entire regions 
of IP addresses that represented countries not regulating the pornography 
served from computers in their country.(Emphasis added.)
In other words, CP80.org wants to make ICANN complicit in a scheme that would 
facilitate total blockage of all content of any type emanating from a 
particular nation, based upon whether its lawmaking bodies had enacted 
restrictions on pornography meeting its approval. ICANN should turn down this 
The training instructional goes on to describe its agenda for ICANN itself:
ICANN and the five regional registrars could remove the domain names and IP 
addresses from any company found to violate child-protective laws with regard 
to pornography…The CP80 solution puts in place processes for these bodies to 
take action against offending pornographers…The CP80 initiative holds these 
bodies ultimately responsible for the enforcement of social policy and 
protecting children who use the Internet.
The ICA in no way defends the distribution of illegal pornography across the 
Internet. But this statement contains a clear admission against interest as 
regards the CCPC proposal – it is about “the enforcement of social policy” that 
is far removed from ICANN’s narrow mission of DNS technical management. It is 
also based upon a fundamental misunderstanding of the Internet, which the 
CP80.org instructional compares to “other media, such as print, television, 
radio, etc.” But the Internet is not a form of media but an advanced 
telecommunications system that facilitates the global distribution of media and 
all other forms of data. Law and cultural norms regarding acceptable and 
appropriate content differ widely among the nations of the world, and any 
actions that result in the seizure or removal of particular domain names and IP 
addresses should occur pursuant to police powers exercised under national laws 
and related enforcement processes.
Internet zoning and censorship technology regimes erected under the banner of 
protecting children can readily morph into mechanisms for the general 
suppression of free speech and information. To establish the use of the DNS as 
a content zoning mechanism would represent a large potential reversal of the 
undermining of political censorship and the ready access to information that 
has been fostered by the Internet. Further, to require “pornographic”, “adult”, 
and “inappropriate” content to be directed through a specific port requires 
establishing an overarching content judge to decide what material fits within 
these categories. This mandate would be extremely dangerous, as it would 
inevitably lead to self-censorship by those legitimate and lawful generators of 
mature content far removed from pornography wishing to avoid Open Port 
classification and potential ISP blocking. Also, as the Internet is a global 
medium and the subjective judgment as to what content is deemed unacceptable 
varies widely by country and culture, the end result of the CCPC initiative 
could well be lowest common denominator, politicized decisions that do maximum 
damage to the free flow of content and information across borders.
Finally, once the precedent is set that one type of content can be 
port-segregated to facilitate its blocking, the path is open for totalitarian 
regimes and others to bring pressure upon ICANN to acquiesce to their 
suggestions for technological “solutions” for the blocking of content that they 
deem dangerous to themselves or offensive to their view of correct social 
policy. This is a path that ICANN should not go down.


We hope that ICANN will find our comments useful as it considers the proposed 
CCPC.  The ICA supports reasonable efforts to assist parents in assuring that 
their children are not exposed to inappropriate content transmitted across the 
Internet. And we are participating in the Registration Abuse Policy Task Force 
that is considering means to block abuse of the DNS for the transmission of 
dangerous and illegal content, including child pornography.  However, this 
misguided initiative should either be rejected outright or returned to its 
proponents with a request for far greater specificity and candor as regards 
their true aims and the content classification methods that would be required 
to achieve them, as well as a detailed explanation of how such social policy 
enforcement relates to ICANN’s narrow technical mission.

Thank you for your consideration of our views in this matter.


Philip S. Corwin

Counsel, Internet Commerce Association


 The article’s allegation regarding the religious affiliation of CP80.org’s 
founders and members is irrelevant to ICA’s position on this matter, which is 
based solely upon its overall lack of merit.

Philip S. Corwin
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

Attachment: ICA-CCPC Comment- FINAL-040509.doc
Description: ICA-CCPC Comment- FINAL-040509.doc

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