Comments of the Noncommercial Users Constituency (NCUC)

[Milton L Mueller <mueller@xxxxxxx>]

Comments of the Noncommercial Stakeholders

The Noncommercial Users Constituency represent nearly 200 nonprofit 
organizations, public interest advocacy groups, educators, researchers, 
philanthropic organizations and individuals.

NCUC believe that ICANN has a very simple choice to make in its handling of the 
.xxx domain.  The board can accept the fact that ICANN made serious mistakes in 
its handling of the matter and then make a good faith effort to rectify those 
mistakes - or it can refuse to do so. That is all there is to this decision. 
The complicated "process options" offered by the general counsel are 
distractions. Either ICANN accepts the determination of the independent review 
panel and creates the .xxx domain, or it doesn't. Those are the only "options" 
of relevance to the community.

Noncommercial users believe that the board should accept the decision of its 
independent review panel and prepare to add .xxx to the root. Anything less 
will raise serious doubts about ICANN's accountability mechanisms and will 
undermine the legitimacy of the corporation and its processes. The contract 
offered to ICM Registry should be based on the same template as that offered to 
.mobi, .jobs and other contemporaneous applicants for sponsored TLDs.

Noncommercial stakeholders are deeply interested in the outcome of the .xxx 
application for two reasons.

1)      As supporters of improved accountability for ICANN, we would be deeply 
concerned by a Board decision that ignored ICANN's own Independent Review 
process. The IRP is one of ICANN's few external accountability mechanisms. The 
.xxx case was the first test of that process. A group of distinguished and 
neutral panelists reviewed the record of this case in extensive detail, and 
decided against ICANN. A Board decision that ignores or circumvents the IRP 
decision would seriously undermine ICANN's credibility and raise fundamental 
questions about its accountability mechanisms.  We also feel that refusal to 
comply with the IRP will encourage dispute settlement through litigation in 
national courts, which is not in the interests of ICANN or its global community.

2)      ICANN's decision has important implications for Internet freedom of 
expression.  While a .xxx domain is undeniably controversial, ICANN must guard 
against becoming a tool of those who wish to discourage or censor certain kinds 
of legal content. A TLD string should not be rejected simply because some 
people or some governments object to the types of content that might be 
associated with it. ICANN's mandate to coordinate top level domain names cannot 
and should not become a mechanism for content regulation or censorship.
To conclude, we ask the Board to look past the noise that will surely be 
generated by any public discussion that touches on pornography. This public 
comment period should not be a poll assessing the popularity of the .xxx 
domain. The board must focus exclusively on compliance with its own appeals 
process and strive to maintain ICANN's integrity.