The following is a copy of a message I sent today to
the ICANN Board of Directors and the ICANN At-Large Study Committee. More information
is at: http://hasbrouck.org/icann.
==================================================
Contents:
1. Request for action by members of the ICANN Board of Directors
2. How the draft "aero" agreement differs from SITA's original proposal
3.
The ".aero" application and ICANN principles
4. The importance of ".aero" as a
precedent
==================================================
1. REQUEST FOR
ACTION BY MEMBERS OF THE ICANN BOARD OF DIRECTORS
I am writing to you as members
of the ICANN Board of Directors (and the ICANN At-Large Study Committee) concerning
the latest sections of the draft sponsorship agreement for the ".aero" global top-level
domain (gTLD) posted 9 November 2001 to the ICANN web site.
I believe that the
terms of the most recently posted sections of the draft
agreement, the ".aero
Charter" (Attachment 1)
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-
att1-
09nov01.htm> and the "Description of the Sponsored TLD Community"
(Attachment
5) <ttp://www.icann.org/tlds/agreements/aero/sponsorship-agmt-
att5-09nov01.htm>:
(1) Are inconsistent in important respects with the proposal on the basis
of
which the .aero agreement was supposed to be negotiated, and with the
general
terms of the "TLD Sponsorship Agreement"; Are inconsistent with
principles of
transparency, public participation, and content neutrality
in the administration
of the Internet namespace;
(2) Fail to represent the diversity of the sponsored
gTLD community and
its stakeholders, including failing to allow for registration
by many
members of the originally-defined community or to provide for at- large
participation in the governance or administration of the .aero domain;
(3)
Are contrary to the interests of public safety in aviation and air
transportation;
(4) Are especially significant as precedents, and would set inappropriate
precedents,
for other sector- specific gTLD's; and for all these reasons
(5) Should not be
approved by ICANN, and certainly should not be approved
without full consideration
by the Board of Directors.
Under the procedure established by ICANN Resolutions
01.83-01.86
http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83, ICANN's
President is authorized to sign the .aero sponsorship agreement unless a
member
of the ICANN Board of Directors requests otherwise within seven
days of the completion
of posting of the draft agreement. Affirmative
action by you is required
to prevent the signing and implementation of the
draft agreement.
Some sections
of the draft .aero sponsorship agreement have not yet been
posted as of this writing
(15 November 2001), so the seven-day comment and
objection period has not yet
begun. However, since the portions of the
agreement already posted are clearly
contrary to ICANN principles and the
public interest, I urge you to record your
request that the draft .aero
agreement not be signed, without delay. Once that
request has been
recorded, the Board of Directors can schedule consideration
of the .aero
agreement for full consideration at a future board meeting.
2.
HOW THE DRAFT ".AERO" AGREEMENT DIFFERS FROM SITA'S ORIGINAL PROPOSAL
The .aero
gTLD was proposed by the "Societe Internationale de
Telecommunications Aeronautiques"
(SITA) as "a Top Level Domain for the
entire Air Transport Community (ATC)...)
the definition of ATC is: 'All
companies and organizations for which the main
activity is related to Air
Transport.'" <http://www.icann.org/tlds/air1/18Oct-
Description%20of%20TLD%20Policies.htm>
The inclusiveness of this proposal
for a domain for all stakeholders in
the air transport community was a significant
factor in ICANN's selection
of this proposal, from among many others, for negotiation
towards a
sponsorship agreement.
The draft .aero sponsorship agreement continues
to refer to the "Air
Transport Community", but defines it very differently: "The
.aero TLD is
restricted to people, entities and government agencies which: (1)
provide
for and support the efficient, safe, and secure transport of people and
cargo by air; and (2) facilitate or perform the necessary transactions to
transport
people and cargo by air."
<http://www.icann.org/tlds/agreements/aero/sponsorship-
agmt-att1-
09nov01.htm> <http://www.icann.org/tlds/agreements/aero/sponsorship-
agmt-
att5-09nov01.htm>
There are three material changes from the proposal
to the draft agreement:
(1) The proposal included all those whose activities are
"related to" air
transport, while the draft agreement would include only those
who "provide
for and support" or "facilitate or perform... transactions to support"
air
transport." That would exclude those whose relationship to air transport
is
as users or purchasers rather than as providers of air transport
services. These
excluded members of the community and stakeholders in the
domain include airline
passengers, air cargo shippers, and their
organizations. The draft agreement
also excludese those whose activities
are "related to" air transport, but who
are neither providers nor users of
services. These air transport community members
and stakeholders include
air transport consumer, safety, and security advocates
and advocacy
organizations, and organizations and individuals impacted by the
air
transport industry through airport noise, environmental damage, security
measures,
etc. (affected homeowners, neighborhood organizations, civil
liberties organizations,
etc.).
(2) The draft agreement would limit the .aero domain to those who
"support...
transport... by air", implicitly excluding those who oppose
air transport or,
perhaps more importantly, those whose criticisms of
others in the air transport
community might be considered by SITA or
others in the community to constitute
opposition to air transport. Under
the draft agreement, eligibility for registration
and participation in
administration of the .aero domain depends on whether the
registrant's
opinions constitute "support" or "opposition" to a particular point
of
view. This will require SITA to implement content-based procedures for
inquiries into, and determinations of, prospective registrant's opinions.
This
would be administratively complex, costly, and fraught with potential
for abuse.
There is no evidence that SITA has the least competence to
make such determinations,
or to represent the full diversity of the air
transport community and its stakeholders
in doing so. (SITA may claim
that it has no intention to actually impose
such conditions for .aero
registration. That may be true, but if so, the sponsorship
agreement
should not grant SITA authority to do so, as the draft does.)
SITA has
given no public explanation as to why the.aero domain should be open
to
the industry's boosters but closed to its critics.
(3) Perhaps most dangerously,
the requirement for "support" of air
transport as a condition of continued eligibility
for .aero registration
could serve as a powerful deterrent to whistle- blowing
or the raising of
criticisms from within the air transport industry, out of fear
that those
criticisms could be used as grounds for an allegation of lack of
"support",
and thus for revocation of a .aero registration. Many safety
and security hazards
to air transport have become known, and been
addressed, only as a result of whistle-blowing
from within the industry.
That should be encouraged and protected, not discouraged.
SITA itself said
in its proposal, "This industry needs a TLD that it can manage
to the same
safety and security standards that prevail in the legacy world today."
<http://www.icann.org/tlds/air1/18Oct-
Description%20of%20TLD%20Policies.htm>
Those legacy industry standards
include explicit protections for whistle-blowers,
standards for
transparency (especially with respect to safety concerns) and
encouragement
of criticism and debate -- none of which are included in the
draft .aero agreement.
It's ironic that the draft .aero agreement, with
its potential disincentives
for whistle-blowing on safety and security,
was posted to the ICANN Web site
less than a week before an ICANN Board of
Directors meeting devoted primarily
to safety and security. Moreover, for
ICANN to enter into an agreement creating
a disincentive -- fear of
disqualification from eligibility for .aero registration
-- to whistle-
blowing and public airing of safety and security concerns by members
of
the air transport community would give substantial cause for the
Department
of Commerce of the USA to exercise it's oversight authority
over ICANN, and to
intervene in the public interest. This, I assume, is
an outcome ICANN, SITA,
and most stakeholders (including myself) would
much prefer to avoid.
3. THE
".AERO" APPLICATION AND ICANN PRINCIPLES
ICANN general terms for all gTLD Sponsorship
Agreements include the
following: "3.1. Obligation to Maintain Representative
Characteristics
Justifying Original Selection of Sponsor. During the Term of
this
Agreement, Sponsor (a) agrees to ensure it remains at least as
representative
of the Sponsored TLD Community as it was at the time of its
selection, and (b)
shall be responsible for developing policies for, and
providing for the operation
of, the Sponsored TLD in the interest of the
Sponsored TLD Community." <http://www.icann.org/tlds/
agreements/sponsored/sponsorship-agmt-16oct01.htm> As described above, the
draft
.aero sponsorship agreement with SITA clearly fails to meet this
requirement.
SITA has failed to represent the diversity of the community
as it was represented
in the SITA proposal for .aero, excluding
significant segments of the community
(particularly users and purchasers
of air transport services, and those critical
of air transport). SITA has
proposed no policies whatsoever, in the draft agreement,
providing any
mechanism for accountability to those stakeholders. Indeed,
SITA's
conduct in negotiating a draft agreement excluding large and significant
segments
of the community calls into serious question its ability or
commitment to administering
the .aero gTLD in their interests. At a
minimum, since the draft agreement
makes clear that SITA is no longer as
representative of the air transport community
as it claims to be in its
initial proposal and at the time of its selection,
ICANN should requires
SITA to resubmit its application for .aero for de novo ,
clean-slate
consideration on the basis of a narrower and more accurate description
of
how inclusive a community SITA really is capable and committed to
represent.
SITA's failure to fulfill its responsibility to represent the community of
stakeholders
in the .aero gTLD, and its failure to ensure that it
exercises its delegated
authority in the interest of the community, is an
almost inevitable outcome of
ICANN's failure to include mandatory
provisions for transparency and at- large
participation in the exercise of
delegated authority. On this issue, I recommend
to your attention my
testimony and comments to the ICANN At- Large Study Commitee,
with
particular reference to the example of SITA and .aero, available at
<
http://hasbrouck.org/icann/alsc.html>. The Delegation of Authority
for
.aero (Attachment 2 of the sponsorship agreement) has not yet been posted
for
public comment, but I urge you not to approve it unless it is
conditioned on
transparency and at-large participation.
4. THE IMPORTANCE OF ".AERO" AS A PRECEDENT
The defects in the .aero draft agreement, and the closed procedure by
which
was negotiated, are significant not just for themselves but because,
as SITA itself
correctly states, "This is the first time any specific
industry grouping would
be allowed to adopt its own TLD." There are likely
to be many more gTLD's for
specific economic sectors, and the ".aero"
application warrants particular care
because it is setting precedents. The
handling of .aero is the test case for you
as the ICANN Board of Directors
as to how ICANN will deal with the balancing of
corporate boosters and
critics, at-large stakeholders, and public interests in
the establishment
of new domains for specific economic sectors that are already
largely
dominated by corporate interests. This precedent-setting importance makes
it
particularly inappropriate for the .aero sponsorship agreement to be
signed without
full opportunity for public and at-large input and full
consideration by the
ICANN Board of Directors.
Accordingly, I urge that -- in addition to recording
your request to
ICANN's President that the draft .aero agreement not be signed
-- you
schedule a public hearing and full consideration of the .aero agreement
for a future ICANN Board of Directors meeting.
Sincerely,
Edward Hasbrouck
Passenger air travel and travel e-commerce consumer advocate, author, and
FAQ-maintainer
Member-at-large of the Air Transport Community and the ".aero" gTLD
constituency