Re: ICANN approves .XXX red-light district for the Internet

[Eric Brunner-Williams <brunner () nic-naa net>]

Two comments from two commenters:

> I can't seem to find anyone that would benefit from this, with the exception
> of Stuart and ICM's shareholders.


>                         ... I expect the board and staff really
> really would not want to have to answer questions under oath like "who
> did you talk to at the US Department of Commerce about the .XXX
> application and what did you say?" and "why did you vote against .XXX
> when they followed the same rules as the TLDs you voted for?"

The first assumes that a beneficiary should exist that is distinct 
from the applicant-sponsor.

In the case of .aero, SITA itself ceased to exist in the form it 
existed at the time of application. At that time it was a non-profit 
cooperative "open to anyone operating aircraft for the transport of 
passengers, mail or cargo and to other organisations whose primary 
business is in the air transport industry", having 728 members in 
2003, 581 of which were airlines. It is now an IT shop.

The beneficiaries of the existence of .aero may be limited to Afilias 
and the entity known by the initials "SITA", independent of how 
competent the mission of .aero is executed.

In the case of .travel, a 2004 round sTLD applicant ICANN approved, a 
post-delegation reorganization took place resulting in significant 
bulk sales of no observable connection to the travel industry. This 
situation has not drawn formal attention from ICANN for contractual 
compliance reasons.

In the case of .jobs, also a 2004 round sTLD applicant ICANN approved, 
a similar situation has drawn formal attention from ICANN for 
contractual compliance reasons.

In sum, the absence of beneficiaries other than the applicant or its 
successor in interest, and the registry services platform operator, 
for sponsored registries approved in the 2000 and 2004 new gTLD rounds 
is not an exceptional condition. Neither is it a universal condition, 
as .cat, .coop, .museum, clearly serve the beneficiaries claimed in 
their respective applications, and are non-profits operating in the 
public interest.

The second assumes the principle liability that exists is specific to 
a single application.

While possible, this fails to place a controversy in its complete 
context, and assumes an implied pattern of conduct by an agency of 
government at a point in time reflects a continuous primary issue of 
that agency. The Bush-Cheney Administration's lack of commitment to 
accountability and transparency is a matter of record, or gaps in the 
record, to make the obvious pun. Yet accountability and transparency 
have been required to implement in the transition from a MoU to a 
subsequent relationship between a private corporation and the 
Department of Commerce. The current Administration's public comments 
began with Deputy Assistant Secretary Anna Gomez' observation that 
there is "no statutory authority", and continues to Secretary Larry 
Strickland's observation at Silicon Flatirons that accountability and 
transparency must be acted upon by June of this year.[1]

The liability, only in theory, untested as yet, whether the specific 
liability cited above, or a general liability, may include whether 
ICANN is exercising delegated rule making and is therefore subject to 
the Administrative Procedures Act of 1946, as are other 501(c)(3)s to 
which an agency of government has delegated rule making.

Well, that's enough for a Sunday morning sermon on the beneficiaries 
of sTLDs, whether pew safe or not, and the cloud of liabilities that 
surround a corporation that manages a contract originally between the 
Department of Defense and SRI International.

Eric

[1] 
http://www.ntia.doc.gov/presentations/2011/siliconflatirons_02142011.html