NTIA Orchestrated U.S. Conservatives, Foreign Govt. Foes of .XXX, Registry Alleges

The seeds of battle were planted June 1, 2005, when the ICANN board decided ICM’s .xxx application met eligibility requirements for an sTLD. After completing negotiations on the registry agreement, the board set final approval for Aug. 16, 2005.

But approval was derailed just before that by an e-mail campaign backed by U.S. activist groups like the Family Research Council, Concerned Women for America, the American Family Assn., and Enough is Enough, the suit will allege. Documents released by DoC show the agency, which originally sought talking points to counter .xxx critics, was beginning to worry.

In a June 16 e-mail, DoC Exec. Secy. Fred Schwinn tells agency staffers, “Who really matters in this mess is [Focus on the Family founder] Jim Dobson. What he says on his radio program in the morning will determine how ugly this really gets -- if he jumps on the bandwagon, our mail server may crash.” Schwinn suggests “someone from the White House” call Dobson ASAP “and explain the situation, including that the White House doesn’t support the porn industry in any way, shape, or form, including giving them their own domain.”

Citing receipt of some 6,000 anti-.xxx messages, then- NTIA Dir. Michael Gallagher Aug. 11, 2005, urged the ICANN board to delay approval of the sTLD. Next day, the chmn. of ICANN’s Governmental Advisory Committee (GAC) also requested more time to address govt. concerns about .xxx.

On Aug. 16, GAC Chmn. Sharil Tarmizi wrote Gallagher to ask how far the U.S. wanted to take the .xxx issue and what NTIA would do if ICANN acted on the proposal before the next board meeting (in Vancouver). “You can well imagine that there are those on the Board not very happy with this,” Tarmizi wrote: “I need to know what the acceptable course of action might be so that we can do some strategizing.” After much to and fro, ICANN finally rejected the agreement May 10 (WID May 12 p2).

In Oct., ICM sought all .xxx-related records from March 1, 2005, to date. On Dec. 2, ICM FOIA'd DoC for information related to interim NTIA Dir. John Kneuer’s trip to the Nov. 30-Dec. 4 ICANN meeting in Vancouver. NTIA gave up 1,600- plus pages, 120 redacted and 98 blank, the suit will allege. Edited portions bore handwritten notes claiming exemption under an FOIA provision exempting inter- and intra-agency memos or letters not available by law to a party other than an agency in litigation with the subject agency.

To get the edited materials, ICM made an administrative appeal with the DoC. The agency has not ruled on it. The State Dept. produced no documents at all, the registry said. The suit seeks to force the agencies to release information redacted from original documents.

Exemption Claim Challenged

The appeal fights a DoC claim that redacted materials are exempt from disclosure with several arguments, centering on an assertion that the exemption cited covers only records relating to creation of govt. policy or decisions. DoC did not say what agency decision the redacted records hold and no known govt. decision fits the bill, ICM says.

One paper even says “DoC does not exercise oversight in the traditional context of regulation and plays no role in the internal governance or day-to-day operations of the organization [ICANN].” But another expresses a conflicting view that DoC “maintains the ultimate control of the Internet Assigned Numbers Authority [which places TLDs into the authoritative root]. This gives the U.S. the ability to implement any decision made by the international community regarding the Internet. For example, if the international community decides to develop an .XXX domain [sic] for adult material, it will not go on the Top Level Domain registry if the U.S. does not wish for that to happen.”

Records obtained so far suggest Commerce “immediately focussed on political reactions” to ICANN’s announcement that it provisionally approved .xxx -- “not on any regulator activity and it confirmed that while in the agency’s view it lacked any official decisional role in approving new domain names, it nevertheless decided to intervene in the ICANN process,” the suit will say. Documents indicate the U.S. consulted with foreign govts. to “solicit foreign intervention to achieve Commerce’s domestic political goals.”

DoC must clarify the U.S. role in ICANN process before claiming the exemption, since official actions clearly raise questions about how much control the U.S. has over a domain name system it says is managed by a private body, ICM will say. ICM says some edited materials have gone to members of Congress and a non-governmental organization, effectively waiving application of the non-disclosure privilege.

2-Pronged Attack

ICM also will challenge ICANN directly over its vote on .xxx, we're told. Its reconsideration request is based on claims that: (1) Board members rejected the registry pact based on inaccurate information on various govt. positions on .xxx. (2) The vote was based on the “erroneous premise” that it would create or increase the possibility that ICANN might have to enforce every porn law in the world, including some that might require porn sites to use the domain.

ICM will say board members rejecting the agreement did not know the U.S. govt.’s inappropriate involvement in the process or missed its significance. It will claim that, contrary to board direction, ICANN’s pres. and gen. counsel neither engaged in contract negotiations with ICM nor made recommendations on changes to respond to board and GAC concerns. The reconsideration request will be filed today (Fri.).