----- Original Message -----
From: Dave C.
To:
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Sent: Friday, February 02, 2007 7:01 PM
Subject: Canada's Government is Also Against .xxx, per
http://forum.icann.org/lists/xxx-icm-agreement/
COMMENT OF THE GOVERNMENT OF CANADA
The Government of Canada thanks ICANN for providing an opportunity to comment on the revised proposed agreement with ICM providing for designation of a .XXX sTLD registry. Canada continues to participate in the ICANN Government Advisory Committee?s discussion of the creation of this new sTLD. However, Canada is concerned with the direction the ICANN process appears to be taking and the possible implication of that direction for the future of the organization and of the Internet itself. The following comments are intended to draw our concerns to the attention of the broader Internet community.
In 2006, in our response to the United States Department of Commerce Notice of Inquiry (NOI), Canada made the following point: ?? it is essential to underscore and to reiterate the narrow technical nature of ICANN?s mandate, as a body responsible for the administration of Internet names and Internet Protocol (IP) addresses. We recognize that these technical issues occasionally give rise to policy considerations. This has led to confusion about ICANN's role and sometimes distracted the organization from its core mandate. Canada is of the view that, going forward, ICANN and its stakeholders should be scrupulous in taking a very narrow view of ICANN's policy functions, ensuring that any policy issues considered arise directly from and/or are inextricably linked to the organization?s core technical functions. Any other policy issues should be referred to other more appropriate bodies.? Our response went on to say: ?In considering the policy-making aspect of ICANN?s role, it is of fundamental importance to make a distinction between broad Internet-related public policy issues such as spam, fraud, child pornography, etc., which are clearly outside ICANN?s mandate, and the more focused policy issues directly related to the technical functioning of the Internet, which are within its mandate.?
We have reviewed the content of the revised proposed agreement with ICM and other materials provided by the company and we are concerned that many terms of the agreement appear to require, permit or encourage ICANN to venture far beyond its core technical functions.[i] Specifically, the proposed agreement appears to give ICANN the right to monitor the fulfilment of ICM?s obligations and policy implementation in areas beyond what might reasonably be considered a technically-focused mandate. Some examples:
· ICANN is given an opportunity to review and negotiate policies[ii] proposed by the Registry Operator or the International Foundation for Online Responsibility (IFFOR), many having nothing to do with ICANN?s technical mandate (e.g., promoting child safety and preventing child pornography[iii])
· ICANN is also called upon to approve/disapprove of ICM?s choice of a monitoring agency[iv]
· ICANN (and the GAC) will be called upon to identify names of ?cultural and/or religious significance?[v] as well as ?names of territories, distinct economies, and other geographic and geopolitical names?[vi] to be reserved from use in the .xxx domain.
If ICANN accepts these and other similar conditions in the proposed agreement, it is moving in a very significant way toward taking on an ongoing policy-making and oversight role governing Internet content. There is little doubt that significant public policy issues arise in taking decisions on new gTLDs. The GAC is now in the process of developing ?Principles and Guidelines on Public Policy Issues Regarding the Implementation of New gTLDs? to provide guidance to ICANN on a range of those issues. The Government of Canada considers it inappropriate for ICANN to take on an ongoing role such as the one outlined in the revised proposed agreement with ICM.
Internet content is subject to generally applicable laws in countries where it is available. There have been various instances where national governments have successfully imposed limits on the domestic distribution over the Internet of content found to be in breach of domestic laws. Such content control is controversial in many states and poses many technical and legal challenges. Canada remains of the view that it is not and should not be ICANN?s mandate to set policy related to content or intended to censor, control or interfere with content on the Internet by way of its contracts with TLD operators.
In its discussion of various Internet related policy issues, the GAC and its members have frequently expressed concern about ICANN assuming policy functions which may infringe upon the policy responsibilities of sovereign states. The regulation of Internet content raises precisely this concern. Engaging ICANN in setting policy and supervisory functions related to content is a slippery slope. Once undertaken, the role will surely grow case by case.
ICANN was not conceived to be the global Internet content regulator. It has had some difficulty establishing legitimacy and full acceptance in carrying out its primary function related to managing the domain name system. ICANN?s becoming engaged in content regulation through its contracts with TLDs risks undermining its legitimacy and purpose at a time when these need to be reinforced and strengthened.
The Government of Canada therefore recommends that ICANN should not take upon itself these inappropriate functions. Instead, ICANN should look to alternative measures more appropriate to ICANN?s technical mandate. For example, ICANN could oblige the TLD to require registered sites to apply and maintain current control rating systems that enable filtering by end users who may wish to do so. Other technical solutions are now becoming available that could be required to provide governments or individuals the means to prevent access to sites deemed to be illegal or offensive. Such approaches would empower governments and individual Internet users to determine appropriate content policy as they see fit, without involving ICANN in determining such policy.
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[i] The Government of Canada has not conducted a legal review of the proposed agreement. Comments regarding the proposed agreement are made without prejudice to the intent or effect of the agreement.
The following notes refer to page numbers in the ICANN revised proposed agreement with ICM providing for designation of a .XXX sTLD registry:
[ii] see ?Delegation of Authority,? point 4, page 88.
[iii] see ?Registry Operator?s Commitments,? page 86.
[iv] see ?Engagement and Fostering of Monitoring Agencies,? page 87.
[v] see ?Names with Cultural and/or Religious Significance,? page 73.
[vi] see Geographic and Geopolitical Names,? page 57.
