Internet Commerce Association Opposes Approval of the Revised Proposed Agreement on .XXX and Urges Rejection with Finality
By E-Mail
February 5, 2007
Board of Directors
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601
Re: Revised Proposed Agreement on .XXX
Dear Members of the ICANN Board:
This comment letter is submitted by the Internet Commerce Association (ICA) in
regard to the ICANN notice of January 5, 2007, "ICANN Publishes Revised
Proposed Agreement on .XXX".
ICA is a not-for-profit trade association. Its membership is composed of
individuals and companies that own, buy, sell, resell, host and manage Internet
traffic emanating from search engines, domain names and Internet links. ICA's
mission is to promote the values and benefits of Internet traffic, including
the value of purchasing direct navigation traffic, to the press, advertisers,
and governmental authorities on a global basis. ICA works to promote and
protect Internet prosperity and entrepreneurship as well as fairness among
regulators and in the dispute resolution process, taxation, and treatment under
other relevant laws, regulations, and agreements in the U.S. and other nations.
ICA provides a unified voice for a membership with common interests and a
diverse collection of experience in the Internet traffic marketplace. The
website ownership community represented by ICA has risked large amounts of
capital in order to develop domain names as the first new form of property of
the virtual age. These professional registrants are also a significant source
of the fees that support registrars, registries, and ICANN itself. The ICA
supports the concept of private sector governance of the Domain Name System
(DNS) embodied in ICANN but also believes that ICANN must engage in limited
Internet governance, focused on its narrow technical responsibilities, and must
operate in a manner that is transparent and accountable to the broad Internet
community.
The ICA takes no position on the general question of whether it is appropriate
to authorize any specialized top level domain (TLD), including .XXX, with the
intent and expectation that it host explicit adult sexual content. However, we
would oppose any requirement that content of a particular nature, including
sexual content, be hosted and located solely at specifically designated TLD.
The DNS should not be utilized as a means of zoning the Internet for the
purpose of segregating content of any nature, as any fiat to that effect
inevitably involves registries in the classification and possible censorship of
content, and also requires ICANN to stray far from its narrow and proper
mission in order to enforce the operative provisions of registry agreements and
overarching ICANN policies.
For the reasons stated below, the ICA is firmly opposed to ICANN Board approval
of the Revised Proposed Agreement (RPA) on .XXX, and urges the Board to reject
it promptly and with finality.
Executive Summary
The ICA opposes approval of the Revised Proposed Agreement on .XXX because---
1. The RPA would inevitably involve ICANN, through its enforcement
authority and responsibility, in matters that lie far outside its narrow
technical mission and are the proper province of national government and
multinational law enforcement and consumer protection authorities.
2. The RPA would set a number of extremely undesirable precedents,
including--
* Establishing registry-specific content restrictions that will
authorize the registry operator to establish proprietary extralegal standards
and to review and prohibit otherwise legal content.
* Requiring registrants to involuntarily contribute, through a
designated "tax" built into their registry fee, to specified public interest
organizations based upon the nature of the content hosted at their domain name;
as well as support third party monitoring activities that presume that
registrants will not abide by their contractual obligations.
* Establishing a registry-specific forum, outside of ICANN's own
internal structure for receiving input from interested parties, for the
discussion and resolution of matters that are pervasive to most or all TLDs.
3. The sponsoring organization for .XXX appears to be presently controlled by
the registry proposing this new TLD - an entity standing to gain very
substantial revenues if the RPA is approved -- and there is no assurance that
this sponsor will ever achieve sufficient independence, much less adequate
participation from those parties who might utilize this new TLD. As a general
matter, the approval of any sponsored TLD (sTLD) should be contingent upon a
finding by ICANN that the sponsoring organization is a bona fide and
independent entity at the time the TLD proposal is submitted for its
consideration, and not merely a registry-controlled "shell" to be given
substance at some later date; and that the proposed contract governing the
relationship between the sponsor and registry operator be available to the
community and Board prior to any Board vote on a proposed TLD.
4. The process by which this RPA was negotiated and presented to the
broad ICANN community once again, unfortunately, provides evidence that ICANN
is in need of profound internal culture reform as regards transparency and
accountability. The very fact that ICANN staff and .XXX proponents were in
continuing discussions and negotiations following the Board's 9 to 5 vote
against the proposed .XXX agreement on May 10, 2006 was neither publicized by
ICANN nor known by the interested Internet community - the existence of these
ongoing proceedings was in fact opaque to and hidden from that community. At no
time during these negotiations did ICANN seek any input from the community as
regards the appropriateness of the significant precedents that the developing
agreement would set, a failure in regard to both transparency and
accountability. Additionally, the January 5th notice of the Revised Proposed
Agreement fails to contain a single word of explanation as to why ICANN staff
believe the provisions of the newly negotiated Appendix to the original
agreement sufficiently address the concerns of the community that resulted in
the Board's rejection of that agreement by a nearly 2 to 1 margin. Nor is there
a single word of recognition or discussion in the January 5th notice that the
proposed Appendix contains numerous provisions that establish new precedents
that could well migrate to other TLD registry agreements and would inevitably
involve ICANN in areas far outside the scope of its narrow technical mission if
it takes its contract enforcement responsibilities seriously. The ICA finds it
inexplicable that ICANN would operate in such an opaque and unaccountable
manner in regard to a registry proposal that had generated widespread criticism
and debate as well as input from an unusually broad and diverse range of
commentators both within and outside the general ICANN community. This failure
is particularly incomprehensible given that the decision as to whether ICANN
should be completely privatized at the conclusion of its current Memorandum of
Understanding (MOU) with the U.S. Department of Commerce (DOC) in 2009 is
contingent, first and foremost, on its achievement of greater transparency and
accountability in its operations. We would respectfully suggest that,
particularly during a period when ICANN is seeking to achieve full
privatization, it should adhere strictly to its narrow technical
responsibilities and should not be clandestinely negotiating revised agreements
for controversial TLDs that would inevitably require substantial expansion of
its staff (and substantial additional financial support from domain name
registrants) for contract oversight and enforcement responsibilities regarding
matters that fall far outside its intended mission and implicate powers and
duties that properly belong to national governments and multilateral
organizations.
General Discussion
ICANN Must Adhere To Its Narrow Technical Mission
During the debate leading up to the 2005 WSIS meeting regarding whether ICANN
should be absorbed into the International Telecommunications Union (ITU) or
another United Nations (UN)-affiliated entity, defenders of ICANN's private
sector model noted repeatedly that adherents of such action misunderstood the
limited and technical nature of the "Internet governance" functions assigned to
ICANN. Fortunately, their arguments that these circumscribed responsibilities
should not be politicized prevailed.
That limited assignment was again reiterated in recent ICANN testimony before
the U.S. Congress:
The limited and distinct mission of The Internet Corporation for Assigned Names
and
Numbers is clearly set out in Article I of ICANN's Bylaws. 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 as they relate
to these technical functions.(Emphasis added)[1]
In judging precedent-setting policy developments contained in proposed TLD
registry contracts, as well as evaluating the roles and duties that ICANN would
have to perform to credibly enforce the provisions of such proposals, ICA
evaluates whether they relate directly to the narrow technical functions
assigned to ICANN and its overarching responsibility to assure a stable and
secure DNS. Where a proposed agreement would unreasonably and inappropriately
expand ICANN's responsibilities into areas that are unrelated to its limited
and distinct technical mission we will oppose it for two primary reasons:
1. If ICANN is allowed to expand its scope of authority and supporting
bureaucracy at will, the costs of adding additional staff and implementing
procedures to enforce inappropriate registry duties will ultimately be passed
on to the registrant community as it is the source of all the DNS income that
flows upward to registrars, registries, and ultimately ICANN itself. A domain
name registration fee should only reflect costs reasonably related to the
maintenance of secure and accurate registry databases and ICANN's associated
oversight and enforcement responsibilities. Any charges beyond that will be
viewed as an unjustified tax on registrants to support functions that are not
reasonably related to ICANN's mission statement.
2. If ICANN is permitted to assume oversight responsibilities and
enforcement roles that are outside its narrow technical mission and thereby
engage in "Internet governance" activities that lie properly in national
governments and multinational organizations it will be in a considerably weaker
position to resist any future attempt to politicize DNS governance through its
placement within a multinational organization. That is, short term expansion of
ICANN activities into areas properly reserved to governments sets the stage for
the loss of ICANN's independence in the long run.
As the proposed Addendum to the .XXX proposal would require ICANN, through its
contract enforcement responsibilities, to become involved in areas that are far
removed from its "limited and distinct mission", and that are already being
addressed by national governments on an individual and collective basis, the
ICA must firmly oppose the proposed agreement as an unwarranted and
insupportable expansion of ICANN's authority.
Precedents Established Through Registry Agreements
The ICA believes that each proposed TLD registry agreement considered by ICANN
must be carefully scrutinized for language that establishes new precedents, as
it appears to be ICANN's tendency to incorporate such provisions in
subsequently considered agreements. For example, at its Sao Paulo meeting the
comments of several ICANN Directors indicated that they were voting for the
proposed .Biz, .Info, and .Org TLD agreements, despite their inclusion of
presumptive renewal and price increase provisions that had elicited "outrage"
from the community in the context of the .Com settlement, because it would be
unfair to deprive other TLD registry operators of such benefits. While we
certainly hope that ICANN does not feel that it is inextricably bound by bad
precedents in all future contract negotiations, we proceed on the assumption
that any new provision in a TLD registry agreement will likely find its way
into future contract negotiations for both existing and new TLDs.
It is inarguable that there are no technical distinctions between the three
sets of unique identifiers or the protocol port and parameter numbers
applicable to .XXX as opposed to any other current or proposed TLD. Therefore,
any differences between the RPA and existing TLD agreements must be based upon
the type of content - explicit adult sexual content -- intended to be hosted at
.XXX DNs. As similar content is broadly available at many other if not all TLDs
it is quite probable that the adoption of content-related precedents
established in a .XXX agreement will inevitably lead to calls for the addition
of similar provisions relating to such content as existing TLD agreements are
renegotiated and proposed agreements are evaluated. Going down that path will
inevitably involve TLD registries in content classification as they (and ICANN,
through its contract oversight and enforcement responsibilities) are called
upon to draw the line that divides DNs hosting content subject to such
additional provisions and those that are not.
The ICA believes that content classification and restriction regimes are not
reasonably and appropriately related to ICANN's narrow technical functions.
Therefore, contractual provisions that establish or set a precedent for such
regimes have no place in any TLD registry agreement. The DNS was not intended
to be and should not be allowed to become the basis for zoning the Internet so
as to segregate various types of content or establishing content-based
restrictions and responsibilities. While we fully recognize that there are very
legitimate concerns about the proliferation and distribution of explicit sexual
content on the Internet, particularly in regard to its availability to minors,
we do not believe that addressing these concerns lies within ICANN's mandate -
if ICANN differs on that judgment, it should propose uniform adult sexual
content-related provisions applicable to all TLDs for the community's
consideration and comment.
This subject of explicit sexual content is already being addressed by a
multitude of governments, both individually and on a collective basis, as well
as by numerous private and civil sector entities. This subject also raises a
host of free speech and law enforcement issues that have elicited differing
national standards and approaches and that lie far outside ICANN's narrow
technical mandate. ICANN should exercise extreme caution about involving
registries and itself in these content-based matters.
Aside from concerns about content-based provisions in registry agreements, the
ICA also believes that proposed contractual provisions must be carefully
scrutinized to determine if they reasonably and appropriately relate to ICANN's
narrow technical functions. The best means for making such a determination is
to ask whether a proposed contractual provision could be proposed by and
adopted for the DNS as a whole. The ICA's position is that a subject that lies
outside ICANN's mandate for the DNS system as a whole cannot be established as
a matter requiring ICANN's oversight and enforcement in a single TLD registry
agreement, and that ICANN lacks any authority to delegate to registry operators
the exercise of authority that could not be directly undertaken by ICANN
itself.
For example, the RPA at hand contains provisions for the imposition and
enforcement of "best practices obligations" relating to such subjects as misuse
of personal information, clear and accurate consumer disclosures, protection of
intellectual property rights, commercial spam, and transaction instrument
fraud. Were ICANN to initiate or entertain a Policy Development Process (PDP)
addressing any one of these issues we believe that the community would
immediately question how ICANN involvement is reasonably and appropriately
related to its narrow technical mission. ICANN should refrain from backdoor
registry contract expansion of its authority as it will inevitably lead to a
need for expanded staff and funding as well as conversion of the DNS system
from a technical management regime to a legal and public policy regime.
There is an additional reason for the exercise of restraint in contractual
negotiations for TLDs. Each of the subjects addressed by the proposed "best
practices obligations" is an important and serious issue. But each of them is
also an extremely complex issue that is already the subject of varying national
laws, multinational conventions, and private and civil sector remedial efforts.
For example, the subject of the protection of personally identifying
information generally and on the Internet specifically has been addressed
comprehensively within the European Union but remains the province of disparate
federal and state statutes within the United States, with the U.S. Congress
expected to debate and perhaps enact new data privacy law over the next two
years. To what legal regime would ICM Registry look when establishing its own
"best practices obligations" relating to alleged misuse of personal information
by registrants? By what right does any registry operator establish and enforce
standards that relate to a matter that bears no reasonable and appropriate
relationship to the operation of the DNS system and its own primary
responsibility to maintain a secure and accurate DN database? By what means, if
any, will registrants be assured that the personal information protection
regime established by ICM is consistent with the relevant laws of those nations
whose jurisdiction they are subject to? What administrative and procedural
protections will registrants receive in ICM's adoption and enforcement of that
regime? The answers to these questions and others are extremely important, as
the lucrative revenues that ICM will derive from operation of .XXX as well as
the controversial nature of the content it is intended to host will almost
surely result in ICM taking a lowest common denominator approach to
establishing standards as well as a severe enforcement posture to further its
own proprietary interests.
The ICA does not believe that the subjects to be addressed by ICM's "best
practices obligations", as well as those addressed by other provisions of the
RPA, fall within ICANN's "limited and distinct" technical mandate and
therefore have no place in a TLD agreement. If ICANN feels otherwise it should
establish a PDP for the general application of these provisions to all TLD
agreements, as the matters they address are pervasive to the Internet as a
whole and not solely to the proposed .XXX TLD. For example, we can think of no
reason why consumers of sexually explicit services obtained from a .XXX website
should be entitled to some higher or additional level of consumer protection
than is provided to consumers of a wide variety of other goods and services
obtained from websites hosted on other TLDs.
In the interim, ICANN should merely consider adoption of a requirement that all
TLD registries take steps to ensure that registrars and registrants are in
compliance with all applicable laws and regulations regarding illegal content
as well as abusive, deceptive, and fraudulent practices, and have procedures
in place to deal with known violations under applicable law. That simple
requirement would legitimately address all of these concerns without straying
from ICANN's limited and distinct mission or risking the setting of undesirable
precedents. Of course, such a reasonable course would not serve the purpose of
the proponent of this RPA, which appears to be the generation of a dense
smokescreen of questionable pledges and commitments in a last-ditch attempt to
reverse the prior rejection of the .XXX proposal by ICANN's Board and reap the
considerable financial rewards of a registry launch..
For registrants concerned about the wanton expansion of ICANN's authority and
the establishment for worrisome and damaging precedent, the absolute worst
course of action is to allow a single registry operator with a substantial
profit motive in retention of the registry contract to establish, without
procedural safeguards regarding adoption and enforcement and within the context
of a TLD meant to host controversial content, registrant obligations regarding
complex matters that are already subject to differing legal regimes. Yet that
is the course this RPA proposes to take and that ICANN has been asked to
approve. It should not do so.
Prohibition of Child Pornography and Related Practices and Associated Third
Party Monitoring
The ICA is firmly opposed to the possession and distribution of child
pornography and believes that those who engage in and encourage the sexual
exploitation of children, particularly for commercial gain, should be
prosecuted to the maximum degree under applicable law.
This scourge is best addressed by law enforcement agencies, which possess the
expertise to penetrate the online tactics employed by pedophiles to hide their
tracks and identities, as well as the authority to fully investigate this
pernicious and despicable form of child abuse. At the same time, this is an
area far removed from DNS management and one in which ICANN and TLD registries
lack expertise and authority. The prudent and appropriate course of action
would be for ICANN to ensure that TLD registries and other participants in the
DN system abide with applicable law and fully cooperate with lawful requests
related to police investigations, while sharing technical expertise with the
authorities to better help them apprehend perpetrators of this crime.
While ICM Registry has made the prohibition of child pornography a featured
aspect of its RPA, there is no reason to believe that there is a
registry-specific solution to this problem that is known to be pervasive to the
entire Internet. Indeed, as .XXX is designed to host legal adult sexual content
it may not be frequented to the same extent as other TLDs by pedophiles seeking
illegal child pornography.
ICM's pledge to "prohibit child pornography, including practices that appeal to
pedophiles" does raise some critical questions. The first is what definition of
child pornography will be utilized? While there can be no question that still
and video images of young children engaged in sexual acts with adults fall
squarely in this category, the outer dimensions of legality can vary by
national law. For one thing, child pornography is generally defined as an
illegal image of a minor, but the age range covered differs among nations.
For another, otherwise prohibited content can be legal in certain contexts; for
example, in the U.S. an image may pass muster if presented in a manner that
imbues it with serious literary, artistic, political or scientific value.[2]
Third, the type of materials considered to be child pornography can vary by
jurisdiction; for example, written depictions of real or imagined sex acts with
minors, including such literary works as Vladimir Nabokov's "Lolita", are
generally protected by the First Amendment in the U.S. but may be illegal in
other jurisdictions (indeed, Lolita was initially banned in Great Britain but
became a best seller upon release in the U.S.). We do not raise these questions
in defense of any or all such content but merely to illustrate the difficulties
of allowing a registry operator to prohibit DN registrants from engaging in
conduct defined by its own enforceable standard rather than the law of the
appropriate legal jurisdiction. The Statement made by ICM's Stuart Lawley in
his January 5, 2007 letter to ICANN Board Chairman Vint Cerf, that "ICM is
committed to prohibit child pornography, as that term is defined in
International law, and to enforce that prohibition." (Emphasis added.), sheds
little light on the subject, since the legally enforceable definition is very
much one that varies by nation.
Other issues arise in regard to ICM's enforcement pledge. ICM intends to
outsource this responsibility to a third party, subject to ICANN approval.
However, at least in the U.S., entities outside of the established law
enforcement community are extremely constrained in their ability to investigate
child pornography as their viewing or documentary storage of any illegal image
is in and of itself a separate criminal offense. Here is how a Justice
Department witness recently described the relevant provisions of the Adam Walsh
Child Protection and Safety Act of 2006:
...the new law provides that in child pornography prosecutions, the child
pornography must remain in the control of the government or the court. In
passing this law, and by enacting findings explaining that child pornography
constitutes prima facie contraband, and that each instance of viewing an image
of child pornography is a renewed violation of the victim's privacy and a
repetition of the victim's abuse, Congress has taken a great leap forward in
protecting the children depicted in these images.[3] (Emphasis added.)
That is, if the third party retained by ICM operated in regard to DNs subject
to U.S. jurisdiction its viewing of illegal images would constitute a separate
criminal act and any documentary retention of those images to a hard drive
would also constitute criminal possession. While U.S. law does provide
procedures by which providers of Internet access can report incident and
suspect information related to child pornography, it has been insufficient to
quell concerns about their own potential criminal liability. The head of a
leading U.S, organization fighting child exploitation recently testified:
Another obstacle to overcome is the reporting of child pornography found on
customers' accounts by electronic service providers ("ESP") to NCMEC. Though
apparently mandated by federal statute, 42 U.S.C. §13032, not all ESPs are
reporting and those that do report are not sending uniform types of
information, rendering some reports useless. Some ESPs take the position that
the statute is not a clear mandate and that it exposes them to possible
criminal prosecution for distributing child pornography themselves. (Emphasis
added.)[4]
While we are not familiar with the laws of other jurisdictions, it is clear
under U.S. law that the investigation and prosecution of those who possess and
distribute child pornography is a job best done by law enforcement and that the
proper course for a registry operator is to ensure that both it and the its
certified registrars have procedures in place to facilitate the reporting of
suspected illegal content to the police authorities. One additional factor
weighing against the employment of private sector monitors is that individuals
who engage in the active investigation of this form of illegal content must be
chosen after careful psychological screening and receive continuing counseling
to deal with the effects of frequent viewings of such disturbing and detestable
content as images and videos of children undergoing rape and torture.
We also question the proposed employment of third party entities to monitor
registry and registrant compliance with their pledges and obligations. ICM
contends that the RPA obligates it to "Engage independent associations,
acceptable to ICANN, to monitor and oversee compliance with its [ICM's]
obligation to prohibit child pornography and require labeling." In a separate
letter to ICANN, ICM states that it intends to outsource the monitoring of
"registrant compliance with the registry prohibition on child pornography". It
appears that this aspect of the proposal is premised on the depressing
presumption that no one involved with .XXX is to be trusted. We believe it
would be an unfortunate precedent to approve a registry agreement so infused
with mistrust that it requires independent third party monitoring of both
registry and registrant compliance. A fundamental basis of any contract
approved by ICANN is that the parties to and subject to it should be presumed
willing to abide by its provisions, particularly where they prohibit engagement
in criminal activities. We also question why such unprecedented third party
monitoring is required given ICM's assertion that the RPA provides ICANN with
substantially enhanced leverage over ICM throughout the agreement's term. We
believe this is a terrible precedent and that registrants should not be
presumed liable to breach their contractual obligations and thereby saddled
with the duty to fund third party monitors to watch over them.
Finally, difficult as it may be for any private entity to define child
pornography for Internet purposes and to effectively police against it, at
least there is some general consensus that images of young children engaged in
sexual acts with adults are illegal "child pornography". We know of no similar
consensus in regard to the bounds of the "practices that appeal to pedophiles"
which ICM has pledged to prohibit. This indistinct category could well
encompass a wide variety of legal content, including videos of child beauty
pageants and reproductions of the Victorian child nude studies of Lewis
Carroll. No TLD registry should be authorized to censor any content that is
legal under applicable law simply because it might have perverted appeal to
criminal deviants.
Industry Best Practices Provisions
Appendix S of the RPA obligates the registry operator and sponsor of .XXX to
"impose and enforce best practices obligations, including standards" to address
a wide range of issues, including the misuse of personal information, clear and
accurate consumer disclosures, the protection of intellectual property rights,
commercial spam, and credit card fraud.
As discussed above, the ICA does not believe that any of these matters relates
reasonably and appropriately to ICANN's limited and distinct technical
functions and that ICANN therefore has no authority to delegate authority over
these matters to any registry operator. We therefore oppose the approval of
this RPA or any other proposed registry agreement containing similar provisions.
Each of these matters for which ICANN proposes to authorize the registry
operator to promulgate enforceable standards raises serious consumer
protection issues, but none is unique to DNs hosting adult content and each of
them is a matter already subject to enforceable national laws and multilateral
conventions. DN registrants are already subject to enforcement of the relevant
laws of the jurisdictions in which they operate by law enforcement and consumer
protection agencies as well as financial services regulators, and are also
subject to civil suit. DN registrants may be further subject to the contractual
policies of their chosen registrar, which routinely delete DNs found to be used
for child pornography, spam, and other illicit purposes. There is no need for
any addition of registry-specific standards on such matters.
Of course, there are instances where ICANN, rather than individual registry
operators, can properly consider policy aspects of such issues. For example,
ICANN remains within the bounds of its limited authority when it reviews
illicit practices that may threaten the stability of the DNS through the
creation of "botnets" utilized to distribute spam, or when it considers the
views of its IP constituency on an issue such as "domain tasting" that is
facilitated by the five day grace period currently applicable to DN
registrations. In those instances the consideration of the matter arises in
relationship to ICANN's technical administration of the DNS, rather than as a
separate policy matter that intrudes on the jurisdiction of national
governments.
Creation of a New Forum for Adult Content Discussions
ICM Registry, in support of the RPA, has stated that IFFOR, the purported
sponsor, "will serve as a credible forum for representation and self-regulation
where all stakeholders are able to discuss and actively respond to concerns
about child pornography". (Emphasis added.) While ICM and IFFOR are both
entitled to establish or participate in any discussion forum they choose, we
have serious concerns about letting any single registry operator and related
sponsoring organization establish any purportedly representative forum with
regulatory suasion, whether compulsory or "voluntary". It is not at all clear
which "stakeholders" would be represented within this forum - just the
"responsible adult webmasters" that ICM envisions .XXX serving and other
purchasers of .XXX DNs (in which event registration of a .XXX domain would be a
prerequisite to forum admission) or the broad community with concerns about
child pornography?
In any event, the scourge of child pornography is pervasive across multiple
TLDs. As stated above, we believe this is a matter best addressed by law
enforcement agencies and that bears no reasonable and appropriate relationship
to ICANN's limited and distinct technical functions; and that ICANN's authority
in this area is limited to assuring that all participants in the DNS are in
compliance with applicable criminal laws. In any event, no forum on an issue
that is pervasive throughout the entire DNS should be held within an entity
other than ICANN, as only an ICANN-based forum can assure that it is addressed
in a uniform and consistent manner. ICM pledges that IFFOR will seek out and
support informed participation that reflects the community's functional,
geographic and cultural diversity and Internet stakeholders - this sounds
remarkably like a description of parties already participating in ICANN's
overall policy process, who would now be asked to engage in a separate
registry-specific forum. As conscientious participation in ICANN's internal
processes already imposes significant costs on interested parties, including
registrants, placing the additional burden on these parties to participate in
quasi-regulatory forums conducted by individual TLDs would be a most
undesirable precedent.
Mandatory Support for Child Safety Organizations
The first point listed on the ICM-prepared document "The .XXX Registry and
Children" is the pledge that:
ICM will donate $10 per year to fund IFFOR's policy development activities and
to provide financial support for the work of online safety organizations, child
pornography hotlines, and to sponsor the development of tools and technology to
promote child safety and child pornography.
Elsewhere, ICM's summary of the Appendix to the rejected agreement states that:
Registry operator will contribute $10 per domain name registration per year to
support IFFOR, guarantee its operational independence, and support programs
approved by the grants committee.
This pledge raises some serious questions and would establish several
undesirable precedents.
First, as explained above, we believe it would be a mistake to establish a
forum within any single registry to develop policies in regard to Internet-wide
issues. If such a forum falls within ICANN's narrow technical mandate it should
be established within ICANN so as to assure uniform policy across the DNS while
lessening the burden on members of the community wishing to participate.
Second, at least for now, ICM's pledge to allocate $10 per year to IFFOR is
little more than a pledge to take this money out of one of its pockets and
place it in another. A check of the current WHOIS information for the
International Foundation for Online Responsibility (www.iffor.org
<http://www.iffor.org/> ) shows that it is registered to none other than Stuart
Lawley, the President and CEO of ICM registry. While the IFFOR website features
a rather complicated and impressive organizational chart (which furthers the
impression that it is intended to be a mini-ICANN devoted to sexual content
issues, a new bureaucracy whose costs will be imposed on registrants) it lists
not a single member. The website also promises that its By Laws are "To Be
Released Shortly", an inexplicable absence given the time that the .XXX
application has been pending. The suspicion that IFFOR remains an empty shell
constructed and supported solely by the registry operator seeking approval of
the RPA is further buttressed by ICM's noting that the RPA obligates it to:
Ensure that IFFOR remains free and independent and free of inappropriate
influence by addressing, prior to launch, ICANN's concerns about the contract
between IFFOR and Registry Operator to ICANN.
Elsewhere, ICM notes that the Appendix obligates it to:
[P]rovide a draft contract between IFFOR and Registry Operator to ICANN, and to
negotiate in good faith prior to launch to address any reasonable concern that
the contract creates compliance issues and/or a risk that policy obligations
will not be fulfilled.
These statements appear to be a clear admission that seven months of secret
negotiations between ICM and ICANN staff have failed to ameliorate ICANN's
concerns about IFFOR's independence, that any Board approval of the RPA will be
followed by yet another round of negotiations regarding the contract between
IFFOR and ICM, and that the staff is asking the community and the Board to make
a renewed judgment on .XXX without critical information - namely, that
contract. The significant concerns regarding IFFOR's community support and
independent status and the glaring absence of the contract details raise the
question of why this suspect and still incomplete RPA has been resurrected for
Board review? We hope that ICANN learns a lesson from the .XXX saga and
establishes as policy the requirement, going forward, that future applications
for sponsored TLDs will not be entertained by the Board until the independent
status of and adequate third party support for the sponsoring organization is
validated and the detailed contract governing the relationship between the
sponsor and the registry operator has been provided.
Third, Stuart Lawley's January 5th letter to Vint Cerf indicates that ICM
intends to outsource the function of monitoring registrant compliance with the
prohibition on child pornography, and that the likely designee for this
function will be the Family Online Safety Institute (FOSI), the successor
organization to the Internet Content Rating Association (ICRA) . We have
elsewhere detailed our belief that active monitoring and enforcement efforts
against illegal content are best carried out by law enforcement agencies and
that we object to setting the precedent that registrants should be asked to
fund third party investigators on the presumption that they will not take their
contractual obligations seriously. While we are familiar with ICRA and believe
it is a serious and legitimate organization that has pursued beneficial
activities in the promulgation of voluntary website self-rating standards and
the provision of child online safety information and filtering technology to
parents, it appears to have no expertise or authority to actively monitor and
enforce a prohibition against illegal content. (While it does have a track
record with voluntary self-rating standards, it remains to be seen how
effectively it can monitor full compliance with the mandatory content rating
that will accompany .XXX registrations).
Finally, we object strenuously to establishing the precedent that DN
registrants can be required to provide financial support to any third party
organization as a component of their DN registry fee, regardless of how
laudable the organization's activities. Registrant fees should be properly
restricted solely to supporting the registry operator's costs of maintaining a
secure and accurate database. If .XXX registrants intending to engage in legal
activities can be required to fund hotlines, technology developments, and
educational efforts directed against illegal activities they neither promote
nor engage in, what logical argument can there be against requiring the same of
all other registrants who provide adult content at other TLDs? Similarly, if
the good cause of child online safety can be used to extract mandatory
financial support, what other promoters of good causes will petition ICANN to
mandate similar involuntary contributions to their efforts in future TLD
agreements? Will the websites of corporations that manufacture tobacco products
as well as websites that feature ads for those products be required to support
anti-smoking and cancer research organizations? How about automakers and auto
ads and global warming? Fast food restaurant chains and good nutrition and
anti-obesity campaigns? Video games and youth violence? The meat and fur
industries and animal rights? The list of potential supplicants is as long as
the organizations which pursue "good causes". Once ICANN establishes the
precedent that registrant fees can include mandatory contributions to
organizations who have claimed, however tenuously, that the registrant bears
some responsibility for the ill it seeks to cure it will have opened the
floodgates to being looked to as a funding source for them.
The ICA is more than willing to encourage our members to contribute to the good
works of FOSI and other organizations that address problems associated with the
Internet. But such contributions should be entirely voluntary and separate from
the fee that registrants pay to acquire a DN. The administration of the DNS
system does not confer upon ICANN any right to engage in or authorize
quasi-taxation activities that require registrants to fund activities that bear
no direct relationship to the technical costs of maintaining a particular TLD.
Culturally Significant Names
ICM has committed to provide a mechanism whereby the GAC as well as the
government of any country or distinct economy participating in the GAC may
reserve, without cost, any registration name claimed to match words of cultural
or religious significance.
While we can certainly understand that these entities would prefer that such
names not be associated with a TLD meant to host adult sexual content, they
might just as readily object at a word of cultural or religious significance
being utilized for a website engaged in other types of commercial activities,
as well as websites being utilized for the dissemination of political,
religious or cultural views with which they disagree. Up to now the name
reservation process associated with the launch of a new TLD has been limited to
trademark holders; for example, prior to .Mobi's launch last fall it conducted
a Premium Name Application Process for Trademark Holders that was administered
by the World Intellectual Property Organization (WIPO). The establishment of a
broad new category of potential DN names that can be reserved on an apparently
unrestricted basis sets a precedent that should not be established within the
context of negotiating a single TLD agreement. Granting such new rights to
names claimed to have cultural or religious significance could well affect the
conduct and outcome of future Uniform Dispute Resolution Process (UDRP)
arbitration proceedings. This concern seems particularly well justified given
that ICM has pledged to "publish a modified UDRP applicable to abusive
registrations of third party names". It seems axiomatic that any unilateral
modification of the UDRP by a TLD registry operator renders it non-uniform.
This is not acceptable to DN registrants, who rely upon the protections
conferred by the application of uniform criteria in DN disputes to protect
their legitimate economic interests.
It is ICM's position that any expansion of the name reservation process
associated with the launch of a new TLD should be thoroughly discussed within
ICANN and, if adopted, applied on a uniform going-forward basis. We also oppose
permitting the unilateral modification of UDRP standards by any registry
operator.
Absence Of Transparency and Accountability
In our October 31, 2006 comment letter to ICANN "Regarding Transparency and
Accountability Management Operating Principles", we noted the two paramount
reasons for ICANN to get the matter of transparency and accountability right:
1. First, there remains strong concern throughout the Internet community
that ICANN has been operating in an opaque and cavalier manner -- that it fails
to explain or even recognize the policy assumptions that underlie key
decisions; that it announces critical policy changes as fait accompli after
agreeing to them in private contract negotiations; that it makes primarily
cosmetic changes in response to strong and negative consensus feedback from the
affected Internet community; and that it lacks an adequate administrative
proposal and review process to permit meaningful community participation in
policy development.
2. Second, the new Joint Project Announcement ratified by ICANN and the
U.S. Department of Commerce (DOC) on September 29th identifies "greater
transparency, accountability, and openness in the consideration and adoption of
policies related to the technical coordination of the Internet DNS" as the
leading priority for which the DOC will assess progress in the continuing
transition of ICANN to the private sector. Similarly, the Affirmation of
Responsibilities approved by ICANN's Board on September 25th commits ICANN to
continuing improvements in transparency, accountability, and an improved policy
development process. While ICA commends these priorities and commitments, they
must move from the realm of mere rhetoric by being translated into genuine and
indisputable progress in the manner in which ICANN conducts its operations and
develops fundamental policy. We believe that substantial progress in these
areas must be the precondition for any future termination of the MOU between
ICANN and the DOC and completion of ICANN's transition to full privatization.
Unfortunately, in its handling of this revised .XXX proposal, ICANN has once
again operated in an opaque and unaccountable manner and has failed to provide
the Internet community with any meaningful rationale as to why it believes the
new components of the agreement's Appendix cure the proposal's prior
deficiencies that led to its rejection.
The current version of the .XXX proposal was unveiled by ICANN on March 19,
2004, and the initial comment period opened on April 30, 2004 (an earlier
iteration of .XXX was proposed in 2000 and subsequently rejected by ICANN). The
proposal generated great controversy, to say the least. Remarkably, it managed
to unite anti-pornography activists and most commercial purveyors of
pornography in opposition to its realization. The former opposed .XXX out of
concern that it would significantly expand the quantity of online explicit
adult content as well as legitimize its acceptability. The latter opposed .XXX
due to fears that it would inevitably lead to calls for all adult content to be
located at .XXX, converting the DNS into an Internet zoning and content control
regime. Additionally, the 2005 request of the DOC that ICANN provide additional
time for commentary, to which ICANN complied, led to charges that this
constituted evidence of inordinate U.S. control over ICANN, notwithstanding
similar requests from GAC members. Finally, a revised .XXX registry agreement
was posted on April 18, 2006. In a Special Meeting held on May 10, 2006 the
ICANN Board defeated a motion to approve the revised .XXX registry agreement by
a 9-5 vote.
There was no reason for the Internet community and other interested parties to
believe anything other than that the May 10th Board vote constituted final and
conclusive action on this matter. At the time of the vote the current .XXX
proposal had been pending for more than two years (and the overall concept for
six years), had generated substantial debate and comment, and had been
substantially revised in an attempt to satisfy some of the many criticisms
raised against it. Most Board members who explained their vote against the
agreement based their position upon profound skepticism that the proposal's
sponsor could ever effectively implement its various enforcement commitments.
There was no public directive from the Board to ICANN staff to reenter
negotiations with ICM Registry for the purpose of yet again revising the
proposal to again attempt to satisfy the objections of the dissenting majority
of the Board. Such authorization of entry into new negotiations was also never
made an agenda item at subsequent 2006 meetings of the Board.
Therefore, it was with great surprise that we and others learned, from a
January 4, 2007 notice "ICANN Announces Plans for Conclusion of sTLD
Application Process", that:
"The ICANN Board considered the agreement at its meeting on 10 May 2006 and
voted not to approve the agreement as proposed, but did not reject the
application. The applicant has continued to work to modify the agreement in
order to address public policy issues raised by the GAC. ICM and ICANN Staff
have been renegotiating a revised agreement in preparation for community review
and board consideration. ICANN will post that agreement upon completion of the
present round of discussions for public comment." (Emphasis added.)
The fine semantic distinction between rejection of the agreement, as opposed to
the application, was certainly not well understood by the community, which had
every reason to believe that ICANN had settled this matter with finality. This
wording of this explanation was also disingenuous in that ICANN's commitment to
post the revised agreement "upon completion of the present round of
discussions" (implying that they were yet ongoing) was posted on a date on
which those negotiations had clearly been concluded -- as the Revised Proposed
Agreement on .XXX was posted on the very next day -- January 5, 2007.
In short, following the ICANN Board's rejection of the .XXX Proposal on May 10,
2006 ICANN staff entered into yet another round of negotiations with ICM
Registry, from which a new proposal emerged last month. During that seven month
period of undisclosed negotiations the interested community had every reason to
believe that ICANN had taken final action on this matter. While we can
understand why ICANN wished to avoid the renewed firestorm of controversy that
would have been generated by conspicuous public notice that its staff had
entered into yet another negotiating round on .XXX preparatory to Board
consideration of a RPA, and while we certainly do not believe that the
community need be kept apprised on a real-time basis of the minute details of
ICANN's contract negotiation process, it seems apparent that ICANN meant this
process to be opaque and hidden, rather than transparent and publicly known.
That this apparently deliberate obfuscation occurred during the very period
when ICANN was committing to greater transparency and accountability in
negotiations for its own revised MOU with the DOC is extremely discouraging,
and substantially undercuts ICANN's credibility on the key precondition for its
ultimate full privatization.
In order to prevent a recurrence of such opaque conduct, we would urge that in
all future votes on proposed TLDs, where the outcome is rejection of the
proposed agreement, the ICANN Board should immediately entertain a motion to
declare that vote to be final and conclusive action or, in the alternative, to
authorize staff to reenter negotiations in an attempt to cure the proposal's
deficiencies. This simple procedural safeguard would provide clear notice to
the Internet community as to whether a matter has been settled once and for all
or has simply entered a new phase of negotiation.
The process by which .XXX has been resurrected for further consideration and
comment also fails to meet acceptable standards of transparency and
accountability in other ways. ICANN's January 5, 2007 publication of the
Revised Proposed Agreement fails to:
* Explain why ICANN staff believes that the negotiated Appendix to the
proposal rejected by the Board on May 10, 2006 adequately addresses the issues
that caused the Board to reject it.
* Discuss or provide a rationale for any of the unprecedented provisions
contained in it.
* Explain how the multiple new contract oversight and enforcement duties
to be assumed by ICANN fall within the bounds of ICANN's narrow technical
mission or are reasonably and appropriately related to that mission.
ICANN's failure to address these critical areas results in interested and
concerned members of the Internet community playing a guessing game as regards
ICANN's internal policy development process. Such failure is not only evidence
of a continued lack of operational transparency but also makes it far more
difficult for the community to knowledgably comment and thereby hold ICANN
accountable for its decision-making process. If ICANN staff believes it can
make a good argument that the results of their secret negotiating process make
the current .XXX proposal deserving of Board approval they should state it
openly for community evaluation and critique; assumedly, they have or will
prepare such background materials for the Board, and we see no confidentiality
concerns that would prevent their dissemination to the community. In the
absence of such explanatory materials many members of the community might well
fail to comprehend the full scope and implications of this RPA and the many
precedents it would establish.
The need for far greater dedication to transparency and accountability is
particularly important in any matter that has significant financial
implications for both the applicant and ICANN. ICM President Stewart Lawley has
been reported to speculate that, if approved, he expects at least 500,000 .XXX
DNs to be registered (he may well be correct, given the large number of
defensive registrations that will likely be made by trademark holders and
others). That level of registrations would generate a minimum of $25 million
annually for ICM, but quite possibly far more as it sells premium names (e.g.,
porn.xxx, or sex.xxx) to the highest bidder at auction. ICANN also stands to
reap substantial fiscal benefit, being assured of multiple fees, including a $1
annual Registry Level Transaction Fee per registered .XXX DN.[5]
Overall, given the lengthy prior consideration of the prior proposed .XXX
agreement in advance of the Board's May 2006 vote to reject it, and the hidden
nature of the subsequent renegotiation, we believe there should be a strong
presumption against approval of the RPA unless the Board can fully articulate
substantive reasons why the provisions of the Appendix are sufficient to
overcome its prior vote of disapproval. Such a presumption is justified not
only by the considerable time and effort already expended by ICANN and the
community in the consideration of this matter, but because the very integrity
of ICANN's decision-making process has been called into question by the remarks
of the President and CEO of the ICM Registry. In that same news article Mr.
Lawley was reported to state:
"This is not a referendum on 'Do we do .xxx or don't we?', that decision was
made back in June 2005. Are we doing .xxx is not up for discussion. It's 'What
are the terms of the contract?" (Emphasis added.)
Mr. Lawley's interpretation of events makes a mockery of ICANN's consensus
process and of the time and effort expended by numerous commentators with a
serious interest in this controversial matter. In fact, regardless of the
Board's ultimate decision, we would think it would wish to initiate its own
inquiry to determine whether any member of ICANN staff provided encouragement
for Mr. Lawley's apparent view that the ultimate adoption of some .XXX registry
contract has been a certainty since mid-2005. Surely, it cannot be the case
that ICANN's initial decision to enter into negotiations with the applicant for
a proposed sponsored TLD constitutes a guarantee that such negotiation will
inevitably result in the approval and signing of a final agreement. If that is
ICANN's negotiating posture it is volunteering to be at a disadvantage at every
bargaining table, and is also telling the community that it only has power to
influence the terms of such proposals but has no power to successfully oppose
their approval.
Finally, we must note that Mr. Lawley has also stated for the record as regards
the RPA that, "Everything in the contract was originally in the proposal as
submitted in March 2004 so nothing has changed."[6] (Emphasis added.) If,
indeed, "nothing has changed", and the new Appendix to the rejected agreement
of May 2006 is nothing more than a detailed recitation of its unaltered
substance, we must question on what basis this RPA has been resurrected for
Board consideration?
Conclusion
ICANN's Board previously found the proposed .XXX agreement to be so deficient
in merit that is was rejected by a nearly 2-1 vote. In our view the proposed
"cure" of the RPA under consideration is substantially worse than the original
proposal and deserves unanimous rejection. It would implicate ICANN in areas
far outside its technical mandate and would set s series of terrible precedents
that would disfigure the fundamental purpose of the DNS.
For all of the reasons stated in this letter, the ICA strongly opposes adoption
of the Revised Proposed Agreement for .XXX and urges the Board to promptly
reject it and to do so with finality.
The ICA appreciates your consideration of our comments in this matter.
Sincerely,
Philip S. Corwin
Partner, Butera & Andrews; Washington, DC
Counsel, Internet Commerce Association
Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
202-347-6875 (voice)/-6876 (fax)
"Luck is the residue of design." -- Branch Rickey
________________________________
[1] Testimony of Dr. Paul Twomey, President and CEO, ICANN, regarding "Internet
Governance and the Future of ICANN", before the Subcommittee on Trade. Tourism
and Economic Development of the U.S. Senate Committee on Commerce, Science and
Transportation, September 20, 2006.
[2] What Is Child Pornography?
Under federal law, child pornography is defined as a visual depiction of any
kind, including a drawing, cartoon, sculpture, or painting, photograph, film,
video, or computer-generated image or picture, whether made or produced by
electronic, mechanical, or other means, of sexually explicit conduct, where it
* depicts a minor engaging in sexually explicit conduct and is obscene, or
* depicts an image that is, or appears to be, of a minor engaging in
graphic bestiality, sadistic or masochistic abuse, or sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex, and such depiction lacks serious
literary, artistic, political, or scientific value.
Sexually explicit conduct includes various forms of sexual activity such as
intercourse, bestiality, masturbation, sadistic or masochistic abuse, and
lascivious exhibition of the genitals. It is illegal to possess, distribute, or
manufacture these images.
These illegal images can be presented in various forms including print media;
videotape; film; compact disc, read-only memory (CD-ROM); or digital versatile
technology (DVD) and can be transmitted through computer bulletin-board systems
(BBS), USENET Newsgroups, Internet Relay Chat, web-based groups, peer-to-peer
technology, and an array of constantly changing world wide web sites.
All states and the District of Columbia have laws concerning child pornography.
As a result a person who violates federal laws concerning these images may also
face additional state charges.
Who Is a Minor?
Federal statute defines "minor" as any person younger than 18.6 "While a
majority of states follow the federal statute, some state laws define 'minor'
or 'child' as a youth younger than 14, 16, or 17. Delaware law includes any
person 18 years of age and younger in its definition of a 'child.'"
Source: National Center for Missing and Exploited Children,
http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=2451
[3] Testimony of Alice S. Fisher, Assistant Attorney General, U.S. Department
of Justice before the Committee on Commerce, Science and Transportation, United
States Senate, Concerning "Online Child Pornography", September 19, 2006.
[4] Testimony of Ernie Allen, President and CEO, The National Center for
Missing and Exploited Children; hearing cited in footnote III.
[5] "Comeback for Internet Porn Domain", by Kevin Murphy, ComputerWire, January
8, 2007.
[6] Kierenmccarthy.co.uk, January 7, 2007.
Attachment:
ICA-XXXcommentltr020507-Final.doc |