Internet Commerce Association Continues to Strongly Oppose This Revised Proposed Agreement

["Phil Corwin" <pcorwin@xxxxxxxxxxxxxxxxxx>]

BUTERA & ANDREWS

Attorneys at Law

1301 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-1701

202-347-6875

 

 

By E-Mail

 

 

 
March 2, 2007

 

Board of Directors

Internet Corporation for Assigned Names and Numbers (ICANN)

4676 Admiralty Way, Suite 330 
Marina del Rey, CA 90292-6601

 

Re: Revision to Proposed ICM (.XXX) Registry Agreement 

 

Dear Members of the ICANN Board:

 

This comment letter is submitted by the Internet Commerce Association
(ICA) in regard to the ICANN notice of February 16, 2007, "ICANN
Publishes Revision to Proposed ICM (.XXX) Registry Agreement for Public
Comment". The ICA strongly opposes Board approval of this proposal.

 

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 had previously submitted an extensive comment on this matter on
February 5, 2007 (available at
http://forum.icann.org/lists/xxx-icm-agreement/msg00614.html). In that
comment we strongly opposed approval of the Revised Proposed Agreement
(RPA) 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.

 

We have reviewed the preliminary minutes of the ICANN Board's extensive
discussion during its Special Meeting of February 12, 2007  and note
that a majority of the Board expressed serious concerns about whether
the proposed sponsored TLD had the support of a clearly defined
community. Given that the current .XXX proposal dates back to 2004 and
that the original was submitted in 2000, doubts about the validity of
the sponsoring community after seven years of consideration should alone
be sufficient to obligate the Board to reject this proposal. We also
note that those minutes report:

 

Vint Cerf noted that he had been notified by email that there was a
meeting of the adult online community that had recently taken place to
discuss the creation of the new .XXX domain, and that the meeting was
attended by ICM. John Jeffrey noted that he was informed that the
meeting had taken place approximately one week earlier, and that Stuart
Lawley of ICM had participated in a panel discussion. John also
indicated that he was informed that it was sparsely attended...

 

Our information is that the meeting noted by Board Chairman Cerf was in
fact heavily attended and that the overwhelming view expressed by those
in attendance was strong opposition to this proposal, indicating a
continued lack of support in the purported sponsoring community.

 

We have also reviewed the newly revised Appendix S of February 8, 2007
and see nothing in it to allay any of the substantive or procedural
concerns expressed in our comment letter of February 5th.

 

We would find it incomprehensible if the ICANN Board were to determine,
despite the clear and continuing lack of evidence, that the .XXX sTLD
enjoys the support of a clearly defined sponsoring community. If,
however, the Board should somehow determine that such community support
exists, we nevertheless urge the Board to reject this proposal because
it would involve ICANN in matters far beyond its narrow technical
mandate, set a number of highly undesirable precedents, and has been
resuscitated and kept on life support through a process that fails to
live up to ICANN's commitment to greater transparency and
accountability.

 

The ICA appreciates your consideration of our comments in this matter.
 
Sincerely,
 
Philip S. Corwin
Counsel, Internet Commerce Association

 

 

 

 

 

 

Philip S. Corwin 
Partner 
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