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Board discussion over .xxx

The following discussion took place between ICANN Board members with regard to the .xxx domain in a public meeting in Lisbon, Portugal on Friday 30 March 2007:

Note: Although transcript output is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.

Explanation: The Board voted on a resolution that rejected the .xxx application, so a vote "yes" meant saying "no" to the application. This is an edited excerpt of the full meeting transcript, broken down according to each Board member and produced in an effort to provide easy access to the substantive discussion. For the full transcript click here.

Broken down according to director:

Vote:


>>VINT CERF: I'm sure that board members would like to have some discussion about this.
I can tell the general public that there has been enormous debate on this particular topic. Much input from many different sources.

And the board is not of one mind in this particular proposal.

I'd like to entertain some discussion about this particular proposal. And one way to do that, I think, would be to offer board members an opportunity to say a little bit about their view on this particular proposal. You might speak either for or against or simply make observations before we come to a vote.

Susan, let me call on you first.

>>SUSAN CRAWFORD: Mr. Chairman, I cannot vote in favor of this resolution. I'll have more to say when we vote. But in this discussion period, I wanted to note for my colleagues that I've looked back at the RFP and the proposed contract. In the request for proposals, we set forth a definition of the sponsored TLD community which said the proposed sTLD must address the needs and interests of a clearly defined community which can benefit from the establishment of a TLD operating in a policy formulation environment in which the community would participate.

And we asked applicants to demonstrate that the community is precisely defined so it can readily be determined which persons or entities make up that community, and also to state that the community was comprised of persons that have needs and interests in common, but which are differentiated from those of the general global Internet community.

We also asked applicants to provide evidence of support for their application from their sponsoring organization.
It seems to me that the applicant here has identified a sponsored community for dot XXX as a self-identified group of adult webmasters who wish to work together to implement industry best practices in a specific and easily identifiable marketplace. They propose to provide a forum for interaction and policy development. And they assert that these are needs that are not being met elsewhere, the needs of creating and enforcing industry best practices.

They have submitted letters of support to us from members of the adult entertainment community that they assert include supporters from many countries and major providers of adult entertainment. They have also told us that since the first of June of 2006, more than 76,000 strings from at least 1,000 unique registrants have been prereserved in triple X, with instructions from ICM that only qualified applicants should request such preregistrations.

ICM has told us that these prereservations have come from prospective registrants in triple X who are operating bona fide adult sites in other TLDs whose existing sites are providing adult entertainment or services to the adult entertainment industry, and whose existing site was registered prior to May 2006, the date the board rejected a proposed triple X contract.

I've also looked back at the GAC communique conveyed to us in Wellington, and I have compared it to the revised agreement, appendix S. And I do think the GAC's concerns have been adequately addressed.

This has been a very difficult topic for us as a board. We've had extensive discussion, reasonable board members can differ about these issues. But I wanted to make clear in this discussion period what my views are of the criteria here.

Thank you.

>>VINT CERF: Thank you very much, Susan.

Are there any other comments from other board members?
Roberto.


>>ROBERTO GAETANO: Thank you.

I would like to say two things that, in my opinion, make this debate very special.

One thing is the expectation of the community or of a large part of the community or groups and so on.

But, first of all, I would like to make clear that what I'm saying is not something that is -- has determined or will determine my vote. It's a consideration on why this issue is complex.

From what we have heard from the debate in the last months or years, there is at least one large group of people that think that the introduction of the dot XXX will multiple the amount of pornography, whatever the politically --

>>VINT CERF: Adult entertainment material.

>>ROBERTO GAETANO: -- adult entertainment material on the Net.

And, in my opinion, this is not going to happen.

Another large part of the community thinks that if we approve dot XXX, all that material that we said will magically move into dot XXX, and, therefore, children will be protected, because it will be easy to filter.

Also that, in my opinion, is not going to happen.

But, in fact, the irony of this is that besides the people who have followed more closely the debate, the ICANN community, the outside world, the press, the media, are really focusing on those two aspects. So if we approve them, if you approve the dot XXX, within a short period, the people will see that this is not going to happen. Obviously, you know, we can make a bet here. But guess who is going to be blamed.

On the other hand, if we reject the dot XXX, the same two communities will say, Ah, for instance, for the material, whatever, that the correct thing is, we still have that material, and it's not confined into dot XXX, because ICANN has rejected the creation of the TLD.

So I think that as a member of the ICANN community, as a director of this board, I think that whatever the final resolution is going to be, one thing we need to do -- and we need to make a clear statement to the media and to the outside world -- that we'll make it clear that it was being discussed here and what is going to be approved or rejected is the introduction of a TLD that is not going to, in any case, change substantially the situation.

The second consideration that I want to make is related to the idea that we have about the sponsored community.

We have -- we thought -- when, in Tunis, I think, that we started this process of the sponsored TLD, we thought that it was going to be easy to identify a community, to identify groups that would need a TLD in order to promote their business or their activities or whatever is keeping that group together, and therefore there's going to be a drive, a push to move in time -- because, of course, who has an established business is not going to relinquish their virtual identity with domain names that they already have and that are referenced in the Web -- but that there's going to be this process by which all the people who recognize themselves in that community will eventually have a presence in that Web, and the newcomers that don't have, therefore, legacy Web sites will easily go into that community.

For certain TLDs, this -- we see this happening.

I have a problem with this one in the sense that if I were a webmaster of a Web site with adult content, I would honestly be reluctant to have my site in the dot XXX, because that can be easily labeled, it can be easily identified, and it will have all the moral consequences that you have when you are declaring things open in the community instead of hiding behind.
So when ideally -- when I think that ideally this would be a good solution in an ideal world, because you qualify yourself and you are in that particular area, I think that this is not -- obviously not going to happen for a number of reasons. So, therefore, here we have debated very much how much was the support of the community. Do we have 50%, 70%, 30%? Were the meetings attended with standing room only or were there empty seats? All this in my judgment has little influence, I have to say.

The real problem that I have is that I'm wondering whether here we are trying to discuss the color of the uniform of an army that wants to act in disguise. Thank you.

>>VINT CERF: Thank you, Roberto. Vittorio, you had a note, and also Goldstein after that. Vittorio.


>>VITTORIO BERTOLA: Thank you. Well, I want to make it clear for the record that the At-Large Advisory Committee does not have a position on this. If you were here at the public forum, you might have heard from some members of our community that are strongly in favor, and there's a good number of them. There's also people in our community that are strongly against. And if I had to say, I think I've seen more or less the same divisions that I've seen in the general discussions. So of course the At-Large tends to reflect the division of opinions in the global community. And perhaps the thing that I would note as food for thought is that I've seen an interesting division by cultures. So I've seen that almost all the supporters of the creation of this domain come from the North American culture, from the U.S., or from countries that have a similar culture, and I've seen mostly the people from outside that culture being opposed, and when this is a factor into the vote --!

I mean, and I don't know whether this will be repeated, for example, in the vote of the board, but I think it interestingly showed that these kind of proposals would have the need to, I mean, take more into account than what happens outside of the United States.

>>VINT CERF: Thank you. Steve Goldstein.


>>STEVE GOLDSTEIN: Thank you, Mr. Chairman. As my colleagues on the board will certainly know, it was by no means an easy decision for me to decide on my vote. And I was perhaps one of the -- the last people to make a final decision, but my decision turned on one point and one point only, and that was the last point in our board's resolution, the proposed resolution, that under the revised agreement, there can be credible scenarios that lead to circumstances in which we -- ICANN -- would be forced to assume ongoing management and oversight role regarding the content, and that is inconsistent with ICANN's technical mandate.
I believe that we have to guard very carefully against ICANN ever becoming a regulator in that sense, and it's for that reason, and that reason alone, that I would cast my vote against the proposed agreement. Thank you.

>>VINT CERF: I have two other comments now. One from Demi Getschko, and one from Francisco. Demi?


>>DEMI GETSCHKO: Thank you, Steve. I have consistent problems with the definition of the sponsorship of this proposal. To separate this community from the general adult content community, the proposal uses an adjective "responsible." Then it seems that the "responsible" adult content will be defined by participating in this TLD. Then if you are a webmaster outside of this top-level domain, maybe you would be labeled as irresponsible. Then this is a very difficult way to set up as a criterion to make the right definition of the community. On the other hand, if we have to check for compliance on this kind of situation, we would be exactly in the middle of the fire of deciding about content, and it is not the mission of ICANN to be involved in content. I want to express my two views of problems identified in this proposal. Mainly because of the bad -- or the weak definition of the limits of the community and the fact that it puts us in the middle of something we don't!
want to be. Thank you.

>>VINT CERF: Thank you, Demi. Francisco, and then Raimundo.

>>FRANCISCO DA SILVA: Thank you, Vint. According to the bylaws of ICANN, I'm here as a liaison in representation of the technical liaison group and this year in the rotation ETSI is my constituency. Therefore, if I am here for an organization which has a technical mandate, which is ICANN and it is the reason why ETSI participates in the technical liaison group, I could not -- if I had to vote, I could not support it because of a thing that the decision would lead to an area that is outside the technicality and the technical issues and could become more -- could be -- enter in the regulation of content, and, therefore, I would not cope with my responsibilities towards my representation.

>>VINT CERF: Thank you very much, Francisco. Raimundo.

>>RAIMUNDO BECA: Thank you, Vint. Of course like for the rest of my colleagues, this is not a decision -- an easy decision for me. Mainly because when I see a community that is on the borders, it has been from the very beginning so split about this, then you are -- it's difficult to find a way to get a consensus, and obviously this is not a comfortable position for anybody. This is, in fact, the fourth time in this board that I am called to vote on this application.

In the three precedent occasions, opportunities, I voted against the adoption of the approval of this application, and in this fourth time, I will not modify my position.

In the three precedent opportunities, the reason why -- the rationale of my vote has always been the same. My appraisal has always been and continues to be that this application doesn't meet the support -- doesn't meet the request for proposal, mainly on the supporting community.

In particular, in September 15th, 2005, the board by 11 votes against zero voted in dissent of not adopting in that moment an agreement that was proposed, and the main reason why this -- and it's written in the resolution of that opportunity, the main reason is that the -- it should be guaranteed that there was really a commitment of the -- of the supporting community to the principles of the -- of the principle claimed by the applicant. And those principles were mainly that the -- this was a responsible adult entertainment industry that was supporting this application.

In May 10, 2006, by a vote which was more split than the one before, 9 against 5, the board didn't approve again the agreement that was proposed -- that was proposed in that opportunity. In my statement in that opportunity, I indicated that the reason why I was not voting in favor was that because the request made on September -- on September 15 was not met, which means that the -- there was no guarantee that there was a supporting organization -- supporting community that was committed in the sense of developing a responsible adult entertainment provision of services and goods.

In this fourth opportunity, my appraisal is that we are even farther than in May 10, 2006, than we were in that opportunity. Why -- this is my appraisal. Because in this opportunity, the community, the support organization, is defined as a self-identified one. And an organization which is self-identified is not committed -- is committed only for what they will decide in the moment. So they are committed to a book of rules, but the problem is that the book of rules is not written yet, and we don't know what is that, and that, in my opinion, means that we have no guarantee that there is really a commitment with the principle of a claim to develop a responsible adult entertainment industry. Thank you.

>>VINT CERF: Thank you very much, Raimundo. Are there any other comments from board members?
I'd like to just make a couple of observations. The record will show that at one point I voted in favor of proceeding to negotiate a contract. Part of the reason for that was to try to understand more deeply exactly how this proposal would be implemented, and seeing the contractual terms, it seemed to me, would put much more meat on the bones of the initial proposal.
I had been concerned about the definition of "responsible," as Raimundo was as well, and it seemed to me that part of that definition was behavioral and that it wasn't clear what behavior patterns one would anticipate of this community because they wouldn't be defined until the IFFOR structure was put in place and that rules would be adopted. So there's uncertainty in my mind about what behavioral patterns to expect.

There was a substantial disagreement within the adult content community to this proposal. One can argue over what does "substantial" mean, but here, setting aside a great deal of disagreement with the proposal from many parts of the community, my concern here is that over time, the two years that we've considered this, there has been a growing disagreement within the adult content community as to the advisability of this proposal.

As I looked at the contract -- and we did so several times in several different versions -- the mechanisms for assuring the behavior of the registrants in this top-level domain seemed, to me, uncertain. And I was persuaded, for example, that there were very credible scenarios in which the operation of IFFOR and ICM might still lead to ICANN being propelled into responding to complaints that some content on some of the registered dot xxx sites didn't somehow meet the expectations of the general public this would propel ICANN and its staff into making decisions or having to examine content to decide whether or not it met the IFFOR. criteria. One could say, "Well, can't you just hand this off to IFFOR or to other entities constructed within the dot xxx framework?" And frankly, we've found that in other cases, our staff has still wound up having to respond to issues arising.
I would also point out that the GAC raised public policy concerns about this particular top-level domain. It's not the first time that the GAC has raised public policy concerns and I would remind everyone that this is their purpose. The Governmental Advisory Committee was created to alert the ICANN board and the community to issues of public policy character.
I recall that when we were working on dot info, there were issues associated with the registration of place names or geographical names, and the GAC provided us with guidance as to which names ought to be held in reserve and we followed that advice.

Some of you may not know that if we receive public policy advice from the GAC and we choose not to accept it and act on it, that we need to, in fact, explain to the GAC why we would not do that. This would be true, in this case, as well if we were to reject or ignore the advice of the GAC with regard to this proposal. We would be required under the bylaws to explain why that was the case.

I'd also like to remind people that in the processing of the dot travel top-level domain, we did not proceed to take action on that proposal because the -- a significant -- significant members of the general travel community objected and did not consider themselves to be part of the sponsoring community, and we did not take action until that problem was resolved and, in fact, the dissenting member ultimately joined.

So there is precedent for many of the negative actions that this particular resolution endorses.

So my vote is colored in substantial measure, not only by these matters but by the comments of my fellow board members. I'd like to also draw attention to the fact that while they do not vote on matters, that the liaisons have as much input into decision-making as the board members do with regard to discussion of various positions and issues arising, and I think that's a very important part of our whole process.

Let me ask if there are any other comments from any other board members. Vanda.

>>VANDA SCARTEZINI: Okay. I'd like to state also that I start considering the proposal a positive alternative, but going deeply into this proposal with the consideration committee, I became to change my mind and now I finally decide against that based especially with the last item of our resolution that ICANN would be forced to assume oversight intent content, which is totally against our bylaws. Thank you.

>>VINT CERF: Thank you, Vanda. Are there any other comments? Rita?

>>RITA RODIN: Thank you, Vint. I'm not going to repeat what other board members have said. This was a very difficult decision for us. Particularly for me. I wasn't present at a lot of the earlier discussions that the board had about triple X, so I looked back on a lot of materials and I've spoken to a bunch of people in the community and when I listened to the instructions of our general counsel that my obligation as a board member is to take a look at this application, this applicant, to look at the sponsorship criteria and the content that has been proposed, when I do that myself, I believe that I am compelled to vote no for this application.

As others have said, I don't believe that this is an appropriate sponsored community. I think it's inappropriate to allow an applicant in any sTLD to simply define out what could potentially be any people that are not in favor of a TLD, and particularly in this case where you define those that aren't in favor of this TLD that are part of the adult webmaster community as irresponsible.

I do think that this, as others have said, will be enforcement headache for -- an enforcement headache for ICANN. It's going to force the board and the community to rule on the appropriateness of content and other controls that may be implemented by this TLD. As others have said, I think that's way beyond the technical oversight role of ICANN's mandate.

And I just wanted to mention that I almost feel as though if there were an exclusive TLD in silo for adult content on the Internet, I might actually vote in favor, but since it's not -- right? -- there's porn all over the Internet and since there isn't a mechanism with this TLD to have it all exclusively within one string to actually effect some of the purposes of the TLD -- that is, to be responsible with respect to the distribution of pornography, to prevent child pornography on the Internet -- I think that this is too early a concept and, again, I will vote against.

I just want to make one final statement that the board has had very rigorous discussion on this, as everyone has said. It's been an extremely difficult decision, and I want to assure the community that this is not the result of some secret sort of behind-the-scenes government action or any other inadvertent pressure, but, indeed, a very robust and soul-searching debate among my fellow board members. Thank you.

>>VINT CERF: Thank you, Rita. Other comments?
I gather we're ready -- oh, I'm sorry, Peter.

>>PETER DENGATE THRUSH: I think it's probably better to say something now than at the time we vote. I think it's probably easier so I'll just say just a few things now and just vote when the voting comes.

I'm going to vote against this resolution and, in fact, I sought to move a motion in favor of adopting this applicant.

I've been concerned about three aspects of this application. One, the sponsorship community and the nature of that community; the enforceability of the contract; and the nature and applicability of GAC advice.

On the first, the issue of the sponsored community, I concluded that there is on the evidence a sufficiently identifiable, distinct community which the TLD could serve. It's the adult content providers wanting to differentiate themselves by voluntary adoption of this labeling system.

It's not affected in my view by the fact that that's a self-selecting community or anything about the nature of self-selection, nor as a subset of that issue, is it affected by the permanence or impermanence of that community. People may choose to be a part of it for a period and then leave. None of that affects the ability to identify members of the community at any time that's required. Nor am I affected by the withdrawal of some of the supporters of this application in recent months.

And I think it's a particularly thin argument that's been advanced that all of the rules for the application and operation of this community are not yet finalized. I think that's the nature of this process and they have to be given an opportunity to create their rules and to manage the system.

I was specifically concerned about active opposition from members of the adult content provider community who might have been members of that group. That's the first time in any of these sTLD applications we've had active opposition. And we have no metrics, either in our RFP or in any other kind of precedent, to establish what level of opposition by members of the potential community might have caused us concern.

In the end, I've concluded that the level of remuneration demonstrated by the surviving community, the number of preregistrations and their provenance is sufficient. I do not think that dissent by incumbents in a market objecting to the entrance -- the entry of a new player should be given much weight.

I think the resolution that I'm voting against today is particularly weak on this issue: On why the board thinks this community is not sufficiently identified. No fact or real rationale are provided in the resolution, and I think given the considerable importance that the board has placed on this in correspondence with the applicant and the cost and effort that the applicant has gone to to answer the board's concerns demonstrating the existence of a sponsored community, that this silence is disrespectful to the applicant and does a disservice to the community.

The contract. I've also been very concerned, as other board members have, about the scale of the obligations accepted by the applicant. I think to a certain extent, some of those have been forced on them by the process. But for whatever reason, I'm, in the end, satisfied that the compliance rules raise no new issues in kind from previous contracts.
And I say that if ICANN is going to raise this kind of objection, then it better think seriously about getting out of the business of introducing new TLDs.

It's the same issue in relation to all of the others and we either come to terms with what it means to be granting TLD contracts and the consequences that flow or we stop.

I do not think that this contract would make ICANN a content regulator. I would, like others, be very concerned if I thought that was a possibility. And I come then to the GAC advice.

I think issues were raised by the GAC as to matters of public policy concern to that committee, and I just want to record mine -- and I think the rest of the board's -- great appreciation of the value of GAC advice, and the respect required to be accorded to that. Given that it's the collective expression of will of governments here to support the ICANN mission in providing their specialist public policy advice. I think these particular concerns, however, were not well -- were not at all quantified or prioritized, but nevertheless, the applicant responded, in my view, sufficiently in relation to the concerns raised, proposing suitable mechanisms to deal with the matters raised by the GAC.

I have to also record how unhappy I and other members of the board are with the sTLD process. This applicant's been put to significant expense and suffered considerable delays for reasons largely outside its control. It's also had to suffer, as we've had, lots of mistaken assertions about adult content, much of which raises issues well outside the relatively narrow scope of the RFP and the issue which the applicant had to meet.

So in that regard, I welcome the developing work in the GNSO to install a regular, repeatable, hopefully contentiousless process for the introduction of new TLDs. So for those reasons, I vote against this resolution, and would prefer to have been voting in favor of an applicant -- of the application to adopt it.

>>VINT CERF: Thank you very much, Peter. Njeri?

>>NJERI RIONGE: I will not repeat what everybody else has said, because this has been a very, very challenging and very extensive debate at the board level. However, in addition to the reasons stated in the resolution, I vote no and for the following reasons:

That the ICM proposal does not take into account the global cultural issues and concerns that relate to the immediate introduction of this TLD onto the Internet; that the ICM proposal will not protect the relevant or interested community from the adult entertainment Web sites by a significant percentage; that the ICM proposal focuses on content management which is not in ICANN's technical mandate.

The ICM proposal conflicts with our recently consistent rebuttal with ITU during WSIS which is still a very fresh issue in our minds and in the minds of the community and we need to be consistent with the core mandate of ICANN.

>>VINT CERF: Thank you, Njeri. Are there any other comments?


VOTE




I think it's time for us to proceed to a vote. I'm going to make this a roll call vote. Board members who wish to make any further statements in the course of casting their vote are free to do so. But you're not compelled to do so. So I'm going to start at this end of the table and work my way all the way around, calling on myself first.

Let me also remind you that if you vote yes on this proposal, you are rejecting the dot xxx proposal. If you vote no, you're voting against rejecting the dot xxx proposal. And I struggled very hard last night trying to figure out: Whom how am I going to say this without getting my shoe LACES tied together, so again, if you vote yes, you are voting to reject the dot xxx proposal. If you vote no, you are voting not to reject it. It does not mean that you accept it; it just means you didn't reject it. Okay.

So Vint Cerf votes yes, I am rejecting the dot xxx proposal. And I call on Roberto to cast his vote.

>>ROBERTO GAETANO: I vote in favor of the motion, which I understand is rejecting the dot xxx proposal.

>>VINT CERF: Thank you, Roberto. Goldstein.

>>STEVE GOLDSTEIN: I vote yes.

>>VINT CERF: Susan.

>>SUSAN CRAWFORD: I must dissent from this resolution, which is not only weak but unprincipled. I'm troubled by the path the board has followed on this issue since I joined the board in December of 2005. I'd like to make two points.
First, ICANN only creates problems for itself when it acts in an ad hoc fashion in response to political pressures. Second, ICANN should take itself seriously, as a private governanced institution with a limited mandate and should resist efforts by governments to veto what it does.

I'd like to talk about the role of the board.

This decision whether to admit a particular non-confusing legal string into the root is put before the ICANN board because, first, we purport to speak on behalf of the global Internet community. And second, the U.S. Department of Commerce defers to the judgments of that community when deciding what to tell its contractor to add to the authoritative root zone file.

As a board, we cannot speak as elected representatives of the global Internet community because we have not allowed elections for board members. This application does not present any difficult technical questions, and even if it did, we do not, as a group, claim to have special technical expertise.

So this is not a technical stability and security question.
It seems to me that the only plausible basis on which the board can answer the question in the negative -- so could say a group of people may not operate and use a lawful string of letters as a top-level domain -- is to say that the people affected by this decision have a broadly-shared agreement that the admission of this string to the root would amount to unjustifiable wrongdoing.
Otherwise, in the absence of technical considerations, the board has no basis for rejecting this application.
Let me explain.
The most fundamental value of the global Internet community is that people who propose to use the Internet protocols and infrastructures for otherwise lawful purposes, without threatening the operational stability or security of the Internet, should be presumed to be entitled to do so. In a nutshell, everything not prohibited is permitted.

This understanding, this value, has led directly to the striking success of the Internet around the world.

ICANN's role in gTLD policy development is to seek to assess and articulate the broadly-shared values of the Internet community. We have very limited authority. And we can only speak on behalf of that community. I am personally not aware that any global consensus against the creation of a triple X domain exists.

In the absence of such a prohibition, and given our mandate to create TLD competition, we have no authority to block the addition of this TLD to the root. It is very clear that we do not have a global shared set of values about content on-line, save for the global norm against child pornography. But the global Internet community clearly does share the core value that no centralized authority should set itself up as the arbiter of what people may do together on line, absent a demonstration that most of those affected by the proposed activity agree that it should be banned.

I'd like to speak about the process of this application.

More than three years ago, before I joined the board, ICANN began a process for new sponsored top-level domains. As I've said on many occasions, I think the idea of sponsorship is an empty one. All generic TLDs should be considered sponsored, in that they should be able to create policies for themselves that are not dictated by ICANN. The only exceptions to this freedom for every TLD should be, of course, the very few global consensus policies that are created through the ICANN forum. This freedom is shared by the country code TLDs.

Notwithstanding my personal views on the vacuity of the sponsorship idea, the fact is that ICANN evaluated the strength of the sponsorship of triple X, the relationship between the applicant and the community behind the TLD, and, in my personal view, concluded that this criteria had been met as of June 2005. ICANN then went on to negotiate specific contractual terms with the applicant.

Since then, real and AstroTurf comments -- that's an Americanism meaning filed comments claiming to be grass-roots opposition that have actually been generated by organized campaigns -- have come into ICANN that reflect opposition to this application.
I do not find these recent comments sufficient to warrant revisiting the question of the sponsorship strength of this TLD, which I personally believe to be closed.

No applicant for any sponsored TLD could ever demonstrate unanimous, cheering approval for its application. We have no metric against which to measure this opposition. We have no idea how significant it is. We should not be in the business of judging the level of market or community support for a new TLD before the fact. We will only get in the way of useful innovation if we take the view that every new TLD must prove itself to us before it can be added to the root.

It seems to me that what is meant by sponsorship -- a notion that I hope we abandon in the next round -- is to show that there is enough interest in a particular TLD that it will be viable. We also have the idea that registrants should participate in and be bound by the creation of policies for a particular string. Both of these requirements have been met by this applicant. There is clearly enough interest, including more than 70,000 preregistrations from a thousand or more unique registrants who are members of the adult industry, and the applicant has undertaken to us that it will require adherence to its self-regulatory policies by all of its registrants.

To the extent some of my colleagues on the board believe that ICANN should be in the business of deciding whether a particular TLD makes a valuable contribution to the namespace, I differ with them. I do not think ICANN is capable of making such a determination. Indeed, this argument is very much like those made by the pre-divestiture AT&T in America, when it claimed that no foreign attachments to its network -- like answering machines -- should be allowed. In part, because AT&T asserted at the time that there was no public demand for them.

The rise of the Internet was arguably made possible by allowing many foreign attachments to the Internet called modems. We established a process for sTLDs some time ago. We have taken this applicant through this process. We now appear to be changing the process. We should not act in this fashion.

I would like to spend a couple of moments talking about the politics of this situation. Many of my fellow board members are undoubtedly uncomfortable with the subject of adult entertainment material. Discomfort with this application may have been sparked anew by first the letter from individual GAC members Janis Karklins and Sharil Tarmizi, to which Ambassador Karklins has told us the GAC exceeded as a whole by its silence, and, second, the letter from the Australian government.

But the entire point of ICANN'S creation was to avoid the operation of chokepoint content control over the domain name system by individual or collective governments. The idea was that the U.S. would serve as a good steward for other governmental concerns by staying in the background and overseeing ICANN's activities, but not engaging in content-related control.
Australia's letter and concerns expressed in the past by Brazil and other countries about triple X are explicitly content based and, thus, inappropriate in my view.

If after creation of a triple X TLD certain governments of the world want to ensure that their citizens do not see triple X content, it is within their prerogative as sovereigns to instruct Internet access providers physically located within their territory to block such content. Also, if certain governments want to ensure that all adult content providers with a physical presence in their country register exclusively within triple X, that is their prerogative as well.

I note as a side point that such a requirement in the U.S. would violate the first amendment to our Constitution.

But this content-related censorship should not be ICANN's concern and ICANN should not allow itself to be used as a private lever for government chokepoint content control.

>>VINT CERF: Susan --

>>SUSAN CRAWFORD: I am almost done.

>>VINT CERF: No, no, no. I was asking you to slow down. The scribes are not able to keep up with you. I think you want this to be on the record.

>>SUSAN CRAWFORD: I do, and I will give it to them also in typed form.

ICANN should not allow itself to be used as a private lever for government chokepoint content control by making up reasons to avoid the creation of such a TLD in the first place.

To the extent there are public policy concerns with this TLD, they can be dealt with through local laws.

Registration in or visitation of domains in this TLD is purely voluntary. If ICANN were to base its decisions on the views of the Australian or U.S. or Brazilian government, ICANN would have compromised away its very reason for existence as a private non-governmental governance institution.

So in conclusion, I continue to be dissatisfied with elements of the proposed triple X contract, including but not limited to the rapid take-down provision of Appendix S, which is manifestly designed to placate trademark owners and ignores the many of the due process concerns that have been expressed about the existing UDRP.

I am confident that if I had a staff or enough time, I could find many things to carp about in this draft contract. I'm equally certain if I complained about these terms, my concerns would be used to justify derailing this application for political reasons.

I plan, therefore, as my colleague Peter Dengate Thrush has said, to turn my attention to the new gTLD process that was promised for January 2007, a promise that has not been kept, in hopes that we will some day have a standard contract and objective process that can help ICANN avoid engaging in unjustifiable ad hoc actions.

We should be examining generic TLD applicants on the basis of their technical and financial strength. We should avoid dealing with content concerns to the maximum extent possible. We should be opening up new TLDs. I hope we will find a way to achieve such a sound process in short order. Thank you.
[ applause ]

>>VINT CERF: Since we are in a voting phase, Susan, you also need to cast your vote.

>>SUSAN CRAWFORD: I began my statement, Mr. Chairman, by casting my vote.

>>VINT CERF: Which was no? Okay, thank you.

Njeri Rionge how, do you vote?
>>NJERI RIONGE: I vote yes.

>>VINT CERF: Raimundo?


>>RAIMUNDO BECA: As an elected member of the board, under no pressure of no government of the world, under no pressure of any association, but knowing my responsibilities as a member of the board, I vote -- I vote in favor of this resolution. And I will make no comment -- additional comment from what I made before.

>>VINT CERF: Thank you, Raimundo.
Peter?

>>PETER DENGATE THRUSH: No.

>>VINT CERF: Rita?


>>RITA RODIN: I vote yes.

>>VINT CERF: Vanda?


>>VANDA SCARTEZINI: I vote yes, but I would like to state there is no pressure. I'm not under pressure of my government or any government.

>>VINT CERF: Dave Wodelet?

>>DAVE WODELET: Yes. I would like to say first, Vint, that we've already had a lot of discussion on this subject and I certainly see no need to repeat some of my colleagues, so I will limit my comments and be brief to just a couple of things.
This decision certainly has been a difficult one resulting in protracted discussions both within and outside of the board. This decision is a decision that has deserved a lot of thought and deliberation, learning input from a lot of disparate or different groups.

This decision has clearly been emotionally charged and has certainly a lot of emotional baggage. And as a result, I believe some objectivity has suffered during the process.

While I believe that the content of TLDs sponsored or not is not in the scope of ICANN, I also believe that we have to and must evaluate this application on its technical merits alone.

In doing so, I believe the conditions and objections the board had with the previous application have now been met and resolved. So as such, I must vote no and I cannot support this resolution.

>>VINT CERF: Thank you, David. Joichi?

>>JOICHI ITO: I vote no against the resolution, and I would like to comment briefly. I think Peter, Susan and David have articulated most of the points. I would also like to point out that the discussions and arguments about how we would end up by default becoming entangled in the content aspect of this is not sufficient reason for me to vote in favor of this resolution. It is a reason to look at again, as Susan says, the whole process of gTLDs but maybe even at a higher level the raison d'etre and the existence of ICANN and how it should progress.

I don't think this particular vote, particularly in the context of a process that has been followed, and, to me, the fact they have met the technical requirements of the RFP is not the appropriate place to determine whether ICANN should or shouldn't be involved in content. It shouldn't. But that's not where I would be placing this issue.

I think that this -- what this should alert us to is that we have a much higher, bigger problem that we need to be discussing, and I hope that conversation doesn't end here.

And so I think different board members have taken different approaches to how to deal with this issue that's been thrown in our laps. But for me in particular, I think that consistency of the process and to me, as David says, the technical merits of the RFP are very important. And it is also very important for me personally to be very clear that the arguments that are being made about the content and the political issues have no bearing on my -- on the vote that I am casting.

>>VINT CERF: Demi Getschko?

>>DEMI GETSCHKO: I vote in favor of the resolution, and I would like to say that I am a Brazilian citizen. I am an elected board member from the CC community. I don't make any considerations about the reasons the people on the board voted yes or no. I have to declare very strongly that I am voting on my own decision without any kind of pressure, and it seems to me it would be outrageous to try to say that maybe we have voting in some elections because of some kind of pressures. Thank you.

>>VINT CERF: Thank you, Demi. Ramaraj?

>>RAJASEKHAR RAMARAJ: I don't want to repeat what the others have said, so all I would like to say is with all that I have seen, heard and reviewed, I feel that it is appropriate that the board should actually approve the agreement with the ICM Registry and, hence, I vote no.

>>VINT CERF: Alex?

>>ALEJANDRO PISANTY: Thank you, Vint. I will vote in favor of the resolution that says no. I vote yes to no.
I have to distance myself energetically, and I see that other board members have already done so from the characterization made by Ms. Susan Crawford. Rhetoric aside, the picture she paints is plainly wrong. I do not consider that the board has been swayed by political pressure of any kind. It has acted to the best of its knowledge and capacity within a very vigorous discussion within the board and within the community.

Within the strict limits set by ICANN's mandate and for these TLD, within the procedural and substantial rules set by the board's resolution and the RFP itself. ICANN has acted carefully and strictly within the rules.
Further, I have never seen a discussion colored by such implications as discomfort with adult content in this board or any issues related thereto.

The ICANN board has taken into account what one of the things that Ms. Crawford mentions, that there is no universal set of values regarding adult content other than those related to child pornography and the resolution voted is based precisely on that view, not on any view of the content itself. And I repeat, it's based on the view that there is no universal set of values agreed explicitly regarding this.

The fiduciary duty of care that we're obliged to as board members has taken those who vote in favor of the resolution to find that the proposed contract cannot scalably or credibly fulfill the measures required by the RFP. A global TLD needs to scale to a global application, to a global community, to a global response of foreseeable, predictable response from the global community and not work only in one country, as I find Ms. Crawford's statement to be much more concentrated into the realities of one jurisdiction.

The resolution is not based on the judgment of the community support for the application other than noting that this community support has been divided and not consistent a long time.

It is not based on considerations that would interfere with freedom of speech or any other human rights and values adopted generally and specifically by ICANN.

The proposed contract fails to extricate ICANN from contents and conduct-related issues. In fact, it does the opposite. To the best of our understanding, this cannot be remedied, and that in our global, international multistakeholder environment, is what counts.

>>VINT CERF: Thank you, Alex. Paul Twomey, how do you vote?

>>PAUL TWOMEY: Chairman, I abstain.

>>VINT CERF: Thank you, Paul. My count says that there are eight votes yes, which means that the proposal is rejected. There are five votes no, and one abstention.

It's nine. I'm sorry, there are nine yeses. Nine, five and one abstention. So the proposal is effectively rejected, and it is my understanding that as a consequence of this vote, we will not accept any further proposals on this particular TLD in this particular cycle of sponsored TLD consideration.

Well, thank you very much for all of the comments that have been made. I'm glad that we can put the matter to rest for a while, anyway.

I agree with Susan, that we desperately need to have a new TLD process and we've had some very fruitful discussions during the course of this week which I hope will lead us closer to agreeing on that.

I would like to move on now to the next item of discussion, specifically having to do with registrar accreditation..

By kieren.mccarthy at 2007-03-30 14:23 | | | | login or register to post comments