EU Charges Political Interference Caused No Vote on .XXX
ICANN’s decision to reject the proposal for red-light top-level domain (TLD) .xxx was a “clear case of political interference” by the U.S. govt. in Internet governance, the spokesman for EU Information Society & Media Comr. Viviane Reding told the news media Thurs. Directors voted 9-5 Wed. to jettison the application by ICM Registry for .xxx, based, ICANN said, on issues involving the criteria for the sponsored TLD and the terms of the registry agreement floated by ICM. The board action underscored the need to make ICANN independent from the Commerce Dept., the Commission spokesman said.
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ICANN Pres. Paul Twomey called the Commission comments “ill-founded and surprising.” The latest govt. statement on on .xxx came from the U.K., which said it would expect ICANN to enforce compliance with pornography laws if ICM failed to keep its promise to do so, Twomey said in a news briefing Thurs.
The board received “at least 200,000 communications” via e-mail, especially from U.S. family and religious groups, Twomey said. The application also encountered opposition from several key adult entertainment organizations, including Larry Flynt of Hustler, he said. Some believed .xxx would become a mechanism for censorship.
The 9-5 vote showed a “patchwork” of opinions among directors on .xxx, Twomey said. Three main issues were raised at Wed.’s board meeting, he said. Some members were concerned that the application didn’t pass ICANN’s sponsorship test for a sponsored TLD such as .xxx because of the lack of enthusiasm from parts of the adult entertainment community. Others worried that ICM’s proposed contract provisions didn’t encapsulate the commitments it had made in a presentation to the board last year. Finally, Twomey said, some directors wondered how commitments ICM undertook in its registry agreement would be enforced -- and whether they're in fact enforceable. These include the obligation to follow all relevant national laws, a requirement that could pose a problem given the diversity of, say, pornography laws around the world. This was “not an easy decision,” Twomey said.
ICM was disappointed by the vote and even unhappier that ICANN notified the press before the registry, Pres. Stuart Lawley said. “We will wait to see the actual text of the board resolution before making any decisions about next steps,” he said. Following the precedent set in connection with the revised VeriSign registry agreement, ICM hopes individual directors -- particularly those who changed their position on .xxx -- “will give the community some insight into why they voted the way they did.”
The decision sparked criticism from ICANN observers. The board voted nearly a year ago to authorize ICANN staff to finalize negotiations on the registry agreement, said Internet lawyer John Berryhill. During that time, ICM complied with every request to modify the proposal and every staff suggestion, agreed to every request for extensions of time for the “review” sought by various constituents of the ICANN community, and responded to every community concern, he said. The registry now seems to be “cast in the role of Charlie Brown, relying on Lucy’s perpetual promises that she won’t snatch away the football at the last moment.”
The situation is no different from the way ICANN treated an application for a .iii TLD in the first round of approvals -- “opaque criteria, inconsistently applied, with last-minute changes in the rules,” said U. Miami Law School Prof. Michael Froomkin. However, he added, the “strangest part of this story may be that ICANN ever thought .xxx deserved consideration ahead of its more-worthy competitors.”
Australia, on the other hand, welcomed the board decision. It opposed the creation of a “domain that could have acted as a haven for illegal and offensive content,” said Helen Coonan, minister for communications, information technology & the arts. The decision “is a reassurance that this body, responsible for overseeing the administration of domains at a global level, has robust decision-making processes that take account of stakeholders’ input,” she said. Others also applauded the no vote. It “proves the power of regular folks when they raise their voices against the power-brokers who think they can run the universe without opposition,” said Jan La Rue, Concerned Women for America chief counsel.
Last year, a letter-writing campaign by conservative groups produced nearly 6,000 messages to NTIA voicing concern about the effects of a .xxx on families and children (WID Aug 17/05 p1). NTIA’s subsequent request that ICANN allow additional time in its approval process to address concerns was seen as proof of continuing U.S. govt. dominance over ICANN, sparking Internet governance questions (WID Aug 23/05 p1).
As part of its application, ICM Registry committed to creating a non-profit entity to set registry policy and best practices. The International Foundation for Online Responsibility (IFFOR) “stood to do a lot of good,” said attorney Kathryn Kleiman. It would have supported child advocacy and free speech groups with funds generated by .xxx domain-name registrations, and crafted policy by bringing those groups together with the adult entertainment industry, she said. IFFOR, the first foundation of its kind among the TLDs, would have created an interesting online community, Kleiman said. “I think we've lost an opportunity here.”