Comment of Edward Hasbrouck on .aero Agreement | 16 November 2001

Comment of Edward Hasbrouck on .aero Agreement 16 November 2001

The following comment, dated 16 November 2001, on the proposed .aero TLD Sponsorship Agreement was sent by Edward Hasbrouck to the ICANN Board of Directors.

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 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) <http://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

----------------
Edward Hasbrouck
<edward@hasbrouck.org>
<http://hasbrouck.org>

"The Practical Nomad Guide to the Online Travel Marketplace"
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"The Practical Nomad: How to Travel Around the World"
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