FC: ICANN replies to Politech post about House bill and .kids

From: Declan McCullagh (declanat_private)
Date: Fri Jul 06 2001 - 08:38:04 PDT

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    [Perhaps I have done ICANN a disservice by suggesting that it is "becoming 
    just another regulated federal agency." 
    (http://www.politechbot.com/p-02216.html) Certainly this bill is not law, 
    but it is useful to see how two respected members of their parties view 
    ICANN, and what the trend in Congress is. Congress started by investigating 
    ICANN's composition, then moved to intimidating ICANN into abandoning plans 
    to levy fees on domains, and now legislators are telling ICANN what domains 
    must appear. Until now, no bill has been proposed to force ICANN to approve 
    new domains, and obviously even Congress doesn't treat private firms like 
    government agencies that can be ordered about. See below for a note from 
    Joe Sims on behalf of ICANN. --Declan]
    
    *********
    
    Subject: Re: FC: U.S. House bill would force ICANN to approve .kids domain
    To: declanat_private
    From: "Joe Sims" <jsimsat_private>
    Date: Tue, 3 Jul 2001 09:55:25 -0400
    
    Declan, I'm surprised that a Washington expert like you would fall into the
    (usually non-US) trap of thinking that two members of Congress equate to
    the US Government.  I have no idea what the sponsors of this legislation
    actually have in mind, or whether they think it could possibly be effective
    if passed, but whatever their personal views, assuming that they represent
    a majority of the Congress or (an even greater leap of logic) the views of
    the Bush Administration seems quite a leap.  If and when this legislation
    is ever seriously considered, and people actually have to state official
    views on it, will be time enough to wonder about whether and how it could
    be effective if it recieved majority support in the House, and there was
    companion legislation in the Senate, and a conference committee came up
    with a compromise that got majority support in both houses, and the
    President signed the legislation.  As this little summary points out, that
    is a very long and windy road indeed.  In the meantime, this bill should be
    considered what it is -- one of hundreds of bills introduced in every
    Congress for any number of reasons which may or may not ever go beyond
    where it is right now.  If this is what you view as "government
    regulation," I can live with it.  You are welcome to post this if you like.
    
    Joe Sims
    Jones Day Reavis & Pogue
    51 Louisiana Avenue NW
    Washington, D.C. 20001
    Direct Phone:  1.202.879.3863
    Direct Fax:  1.202.626.1747
    Mobile Phone:  1.703.629.3963
    
    *********
    
    Date: Mon, 02 Jul 2001 21:48:26 -0700
    To: declanat_private, politechat_private
    From: Lizard <lizardat_private>
    Subject: Re: FC: U.S. House bill would force ICANN to approve .kids
       domain
    
    Oo oo!
    
    I want to register
    
    "sexwith.kids"
    "ihate.kids"
    and
    "donthaveany.kids"
    
    *********
    
    Date: Fri, 6 Jul 2001 03:37:03 -0700
    To: Declan McCullagh <declanat_private>
    From: Aaron <aaronsat_private>
    Subject: Re: FC: U.S. House bill would force ICANN to approve .kids
      domain
    
    Declan,
    
    I have a couple of thoughts about this.
    
    1) Can't the U.S. Government just set up a .kids.us subdomain of the .us 
    top-level domain without involving ICANN? I'm presuming -- tell me if I'm 
    wrong! -- that any government has full control of subdomains of its own TLD.
    
    2) If the U.S. gov't or ICANN itself try to impose a TLD that many people 
    find objectionable, can't operators of Name Servers nullify it by refusing 
    in large numbers to implement it?
    
      - Aaron
    
    P.S. This is NOT a confidential communication. Feel free to quote it 
    wherever you wish, if you have any reason to do so.
    
    *********
    
    From: "Thomas Leavitt" <thomasleavittat_private>
    To: declanat_private
    Subject: Re: FC: U.S. House bill would force ICANN to approve .kids domain
    Date: Mon, 02 Jul 2001 22:30:34 -0700
    
    Who owns the root servers?
    
    What if ICANN ignores this? What if the owners of the root servers ignore 
    this - can the U.S. government compell them to load this into their copy of 
    the master zone?
    
    ... what if ICANN relocates the root servers to Canada, or Luxemborg...
    
    ... what happens if New.Net decides to take it upon themselves to create a 
    .kids zone? does that relieve ICANN of the responsibility? etc.
    
    Thomas
    
    *********
    
    http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.2417:
    
        Dot Kids Domain Name Act of 2001 (Introduced in the House)
    
        HR 2417 IH
    
                                    107th CONGRESS
    
                                     1st Session
    
                                      H. R. 2417
    
        To facilitate the creation of a new global top-level Internet domain
        that will be a haven for material that will promote positive
        experiences of children and families using the Internet, to provide a
        safe online environment for children, and to help prevent children
        from being exposed to harmful material on the Internet, and for other
        purposes.
    
                           IN THE HOUSE OF REPRESENTATIVES
    
                                    June 28, 2001
    
        Mr. SHIMKUS (for himself and Mr. MARKEY) introduced the following
        bill; which was referred to the Committee on Energy and Commerce
          _________________________________________________________________
    
                                        A BILL
    
        To facilitate the creation of a new global top-level Internet domain
        that will be a haven for material that will promote positive
        experiences of children and families using the Internet, to provide a
        safe online environment for children, and to help prevent children
        from being exposed to harmful material on the Internet, and for other
        purposes.
    
        Be it enacted by the Senate and House of Representatives of the United
            States of America in Congress assembled,
    
       SECTION 1. SHORT TITLE.
    
        This Act may be cited as the `Dot Kids Domain Name Act of 2001'.
    
       SEC. 2. ESTABLISHMENT OF KIDS-FRIENDLY TOP-LEVEL DOMAIN NAME.
    
        (a) NTIA ACTION- Within 30 days after the date of the enactment of
            this Act, the Secretary of Commerce, acting through the National
            Telecommunications and Information Administration, shall--
    
        (1) pursuant to the authority under section II.B. of the Memorandum of
            Understanding Between the U.S. Department of Commerce and the
            Internet Corporation for Assigned Names and Numbers, entered into
            on November 25, 1998, regarding oversight of the policy for
            determining the circumstances under which new top-level Internet
            domains are added to the root system, jointly with ICANN, develop
            a plan in accordance with section 3 of this Act for ICANN to
            establish the new domain in accordance with the requirements under
            subsection (b) of this section;
    
        (2) upon completion of the development of such plan, make the plan
            publicly available; and
    
        (3) enter into any memorandums of understanding, agreements, and
            contracts with ICANN, and any amendments to existing such
            memorandums, agreements, and contracts, as may be necessary to
            provide for ICANN to carry out such plan.
    
        (b) REQUIREMENTS FOR NEW DOMAIN- The new domain shall be subject to
            the following requirements:
    
        (1) TOP-LEVEL, INTERNATIONAL DOMAIN- The new domain shall be
            established as a top-level, International domain having a domain
            name appropriate for its purpose.
    
        (2) GREEN LIGHT APPROACH- The new domain shall be available for
            voluntary use as a location only of material that is considered
            suitable for minors and shall not be available for use as a
            location of any material that is harmful to minors.
    
        (3) OPERATOR OF DOMAIN- The entity selected pursuant to section 3 to
            establish, operate, and maintain the new domain shall--
    
        (A) establish, operate, and maintain the domain in accordance with the
            requirements under this subsection; and
    
        (B) provide for the creation of an independent board, with diverse
            membership, which shall be responsible for--
    
        (i) establishing written criteria for accepting registrants for the
            new domain and for any limitations applicable to the new domain,
            which shall include a requirement that any registrant agree to use
            the new domain in accordance with paragraph (2); and
    
        (ii) ensuring that subscription rates or fees for obtaining a new
            domain name are as minimal as possible.
    
        (4) CONSULTATION- In carrying out the establishment, operation, and
            maintenance of the new domain, family organizations and
            international organizations concerned with the operations of the
            Internet shall be coordinated with and consulted.
    
        (5) PERIODIC AUDITS- Periodic audits shall be conducted to ensure
            compliance with requirements, registration criteria, and
            limitations applicable to the new domain.
    
        (6) REVIEW OF EXCLUSION- A registrant to the new domain shall have the
            opportunity for an impartial hearing regarding any material
            excluded from the domain. Such a hearing shall provide the basic
            elements of due process, including adequate notice, a right to
            representation, an opportunity to present evidence and witnesses,
            an opportunity to examine and refute evidence, an opportunity to
            cross-examine witnesses, and a right to a decision on the merits.
    
        (7) OTHER- Any other requirements that may be established under the
            plan developed pursuant to subsection (a).
    
       SEC. 3. SELECTION PROCESS FOR OPERATOR OF NEW DOMAIN.
    
        (a) APPLICATION PROCESS- A plan in accordance with this section shall
            establish a process for soliciting applications for establishment
            of the new domain, which process shall--
    
        (1) commence and complete not later than 60 days after the expiration
            of the 30-day period referred to in section 2(a);
    
        (2) provide adequate notice to prospective applicants (including any
            applicant that previously filed an application with ICANN for
            similar purposes that was rejected) of--
    
        (A) the opportunity to submit such an application; and
    
        (B) the criteria for selection under subsection (b)(1);
    
        (3) involve a fee for filing an application that does not exceed the
            minimum amount reasonably estimated as necessary to recover any
            expenses of
    
        ICANN relating to the process for establishing the new domain; and
    
        (4) provide for reimbursement to applicants of any amounts collected
            in filing fees that exceed the actual amount of expenses of ICANN
            relating to the process for establishing the new domain.
    
        (b) SELECTION PROCESS- A plan in accordance with this section shall
            establish a process for selection, from applications submitted
            pursuant to the process under subsection (a), of an application
            for the establishment of the new domain in accordance with the
            requirements under section 2(b). Such selection process shall
            comply with the following requirements:
    
        (1) CRITERIA- The selection shall be made pursuant to written,
            objective criteria designed to ensure--
    
        (A) that the new domain is established, operated, and maintained in
            accordance with the requirements under section 2(b); and
    
        (B) that the entity selected to establish, operate, and maintain the
            domain is the applicant most capable and qualified to do so.
    
        (2) INITIAL REVIEW- Not more than 60 days after the conclusion of the
            application period pursuant to subsection (a)(1), ICANN shall--
    
        (A) review and apply the selection criteria established under
            paragraph (1) to each application submitted; and
    
        (B) based upon such criteria, select an application and award to the
            applicant a contract for establishment, operation, and maintenance
            of the new domain, unless ICANN determines that no applicant could
            minimally provide for establishment, operation, and maintenance of
            the new domain in accordance with the requirements under section
            2(b).
    
        (3) SECOND APPLICATION PERIOD- If no applicant is selected pursuant to
            paragraph (2), not later than 30 days after the expiration of the
            60-day period under paragraph (2), ICANN shall commence another
            application and selection process that complies with the
            requirements under subsection (a) and this subsection.
    
        (4) REPORT- If the second application and selection process pursuant
            to paragraph (3) does not result in the award of a contract for
            establishment, operation, and maintenance of the new domain, not
            later than 30 days after the conclusion of such second 60-day
            period under paragraph (2), ICANN shall inform the Secretary of
            Commerce in writing of such failure to award a contract and submit
            to the Secretary a report describing the application and selection
            process and setting forth the reasons for such failure to award a
            contract.
    
        (c) FULL OPERATION- A plan in accordance with this section shall
            provide for ICANN to take all actions necessary to facilitate the
            full operation of the new domain within 6 months after the award
            of the contract for establishment, operation, and maintenance of
            the domain.
    
        (d) PRIORITY FOR ESTABLISHMENT OF DOMAIN-
    
        (1) ICAAN- A plan in accordance with this section shall provide that
            ICANN may not establish any top-level generic or country code
            Internet domain that has not already been approved by ICANN on or
            before the date of the enactment of this Act until after the new
            domain provided for under such plan has been established.
    
        (2) DEPARTMENT OF COMMERCE- The Secretary of Commerce may not approve,
            through the National Telecommunications Information Administration
            or otherwise, the establishment of any top-level generic or
            country code Internet domain that has not already been approved by
            ICANN on or before the date of the enactment of this Act until
            after the new domain has been established pursuant to a plan in
            accordance with this section.
    
        (e) CONTINUATION OF DEPARTMENT OF COMMERCE OVERSIGHT AND APPROVAL
            AUTHORITY- During any period that ICANN has any authority for the
            establishment of top-level generic or county code Internet domains
            and for selection of registry services for such domains, the
            Secretary of Commerce--
    
        (1) shall carry out oversight and approval of such functions for the
            Federal Government;
    
        (2) shall make every reasonable effort to retain the authority
            reserved to the Department of Commerce under the Memorandum of
            Understanding referred to in section 2(a)(1) of this Act and any
            amendments to such Memorandum; and
    
        (3) shall diligently exercise such authority.
    
        (f) ANNUAL OVERSIGHT- A plan in accordance with this section shall
            provide that ICANN shall, on an annual basis, review the actions
            of the entity selected to establish, operate, and maintain the new
            domain to ensure that such entity is complying with the
            requirements of section 2(b).
    
       SEC. 4. LIABILITY PROTECTIONS.
    
        (a) TREATMENT OF PUBLISHER OR SPEAKER- No person or entity that
            operates or maintains the new domain shall be treated as the
            publisher or speaker of any
    
        information provided by another registrant for the domain.
    
        (b) CIVIL LIABILITY- No person or entity that operates or maintains
            the new domain shall be held liable because of--
    
        (1) any action voluntarily taken in good faith to restrict access
            through the new domain to, or availability through the new domain
            of, material that such person or entity considers to be harmful to
            minors, obscene, lewd, lascivious, filthy, excessively violent,
            harassing, or otherwise objectionable, whether or not such
            material is constitutionally protected, except that any action
            taken to exclude specific material from the new domain shall be
            subject to the provisions of section 2(b)(6); or
    
        (2) any action taken to enable or make available to registrants to the
            new domain or others the technical means to restrict access by
            minors to material described in paragraph (1).
    
       SEC. 5. EDUCATION AND OVERSIGHT.
    
        (a) EDUCATION- The Secretary of Commerce, acting through the National
            Telecommunications and Information Administration, shall carry out
            a program to publicize the availability of the new domain and to
            educate the parents of minors regarding the process for utilizing
            the domain in combination and coordination with hardware and
            software technologies that provide for filtering or blocking of
            unsuitable content. The program under this subsection shall be
            commenced not later than 30 days after the date that the new
            domain first becomes operational and accessible by the public.
    
        (b) OVERSIGHT- The Secretary of Commerce, acting through the National
            Telecommunications and Information Administration, and the entity
            selected to operate and maintain the new domain shall--
    
        (1) consult with the Attorney General regarding appropriate procedures
            and actions to prevent minors and families who use the new domain
            from being targeted by adults and other children for predatory
            behavior, exploitation, or illegal actions; and
    
        (2) establish such procedures and take such actions as may be
            necessary to prevent such targeting.
    
        The consultations, procedures, and actions required under this
            subsection shall be commenced not later than 30 days after the
            date that the new domain first becomes operational and accessible
            by the public.
    
       SEC. 6. DEFINITIONS.
    
        For purposes of this Act:
    
        (1) ICANN- The term `ICANN' means the Internet Corporation for
            Assigned Names and Numbers.
    
        (2) MATERIAL THAT IS HARMFUL TO MINORS- The term `material that is
            harmful to minors' means any communication, picture, image,
            graphic image file, article, recording, writing, or other matter
            of any kind that is obscene or that--
    
        (A) the average person, applying contemporary community standards,
            would find, taking the material as a whole and with respect to
            minors, is designed to appeal to, or is designed to pander to, the
            prurient interest;
    
        (B) depicts, describes, or represents, in a manner patently offensive
            with respect to minors, an actual or simulated sexual act or
            sexual contact, an actual or simulated normal or perverted sexual
            act, or a lewd exhibition of the genitals or post-pubescent female
            breast; and
    
        (C) taken as a whole, lacks serious literary, artistic, political, or
            scientific value for minors.
    
        (3) MINOR- The term `minor' means any person under 17 years of age.
    
        (4) NEW DOMAIN- The term `new domain' means the Internet domain
            established pursuant to this Act.
    
    *********
    
    
    
    
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