From Christian -- Re: [gnso-ff-pdp-may08] Meta: Strawman - Process vs. Policy

["Mike O'Connor" <mike@xxxxxxxxxx>]

the list and Christian's email address aren't getting along at the 
moment.  so i'm acting as intermediary for him while we get it 
figured out.  Christian's post follows...
m


> Date: Fri, 1 Aug 2008 16:34:23 -0400
> From: "Christian Curtis" <wilderbeast@xxxxxxxxx>
> To: gnso-ff-pdp-may08@xxxxxxxxx
> Subject: Re: [gnso-ff-pdp-may08] Meta: Strawman - Process vs. Policy
> Cc: "Mike O'Connor" <mike@xxxxxxxxxx>
> X-Antivirus: AVG for E-mail 8.0.138 [270.5.10/1585]
>
>     I wanted to comment on the discussion we had at the end of the 
> call, and I believe that this is the proper thread.  I'll leave the 
> straw man alone for now, but I'd like to comment on the NCUC's 
> broader concerns.
>     Democratic governments have certain safe-guards in place to 
> prevent those entrusted with power from running rough-shod over 
> personal freedoms we consider important.  One of these protections 
> is the electoral process itself, which ensures that those who 
> create the policies of the state and those who wield its power are 
> ultimately accountable to the citizenry at large.  Other 
> protections include separation of powers, access to courts, and the 
> constitutional enshrinement of certain fundamental liberties.
>     Professor Setlzer commented that she gets very nervous when 
> private entities start to act like governments.  Both I and the 
> NCUC, share this concern.  Private entities like registries, 
> registrars and ICANN are not encumbered by the same 
> liberty-preserving safeguards as governments.  For example, the 
> U.S. constitution protects its citizens from certain invasive or 
> unjust conduct by the government.  It places little, if any, 
> similar restrictions on similar conduct by private parties.
>    Any discussion about combating illegal activity at ICANN 
> inherently raises these problems.  There is a distinct danger that 
> remedies at this level could transform private parties into a sort 
> of 'speech cop' charged with determining what content is 
> permissible and what is not.  As the debacle with Dynadot and 
> Wikileaks demonstrates, it may well be in the best interests of a 
> registrar to ignore the free speech interests of its customer in 
> the face of a powerful angry party.  Thrusting registrars, 
> registries or ICANN into this role creates the danger that they 
> could be pushed to implement more restrictive or arbitrary controls 
> than the government can.
>     Though I respect Mike's comments about compromise generally, I 
> do not believe that it is appropriate with regards to this 
> issue.  ICANN does not exist to balance the policies of protecting 
> civil liberties and combatting crime.  ICANN exists to coordinate 
> the Internet.  The sort of policies we are discussing when we get 
> into balancing free speech concerns against crime prevention belong 
> to democratic governments with their carefully balanced structures 
> and controls.
>     Respectfully, I must vigorously oppose any proposition that 
> ventures into this forbidden territory.
>      --Christian