Sponsorship Level, Content Regulation Fears Kill .XXX

Board Chmn. Vinton Cerf originally favored negotiating a registry agreement with ICM, in part to see how the .xxx sponsored top-level domain (sTLD) proposal would be put in place, he said. But he was concerned that the community .xxx would serve wouldn’t be defined clearly until the International Foundation for Online Responsibility (IFFOR), the registry’s policy arm, was up and running and policies adopted. Substantial opposition from the adult content community grew during the 2 years .xxx was being debated, Cerf said.

The vote finally rejects ICM’s application, Cerf said. No further proposals for .xxx will be considered in this particular cycle of TLDs, he said.

ICM was “extremely disappointed” by the action, Lawley said. The move is “not supportable for any of the reasons articulated by the board, ignores the rules ICANN itself adopted for the request for proposals, and makes a mockery of ICANN’s bylaws’ prohibition of unjustifiable discriminatory treatment,” he said: “Not least to protect the integrity of the ICANN process, ICM Registry will pursue this matter energetically.” Asked whether that means a suit, Lawley told us: “For sure.”

ICM cited political pressure on ICANN’s handling of .xxx in a May Freedom of Information Act (FOIA) appeal (WID May 19/06 p4). The suit alleges the Commerce (DoC) and State Depts. wrongfully withheld information on their roles in ICANN’s deliberation -- and rejection at the time -- of the .xxx application, tracing that rejection to the U.S. agencies’ fealty to right-wing religious groups and fear of international opposition.

The U.S. Dist. Court, D.C., ruled Thurs. that both agencies failed to justify withholding documents reflecting the govt. role, ordering them to release the material or explain why they didn’t, ICM Registry said. The court discounted the agencies’ arguments for withholding or redacting key documents, ICM said, saying “[d]escription of mere opinion relating to ICANN’s consideration of .xxx -- absent, for example, corresponding assertions that such opinions concern DoC’s role in ICANN process and contribute to an ongoing dialog or debate regarding that role -- do not enjoy deliberative process privilege.”

“Recent events remind us that intergovernmental email exchanges can be more illuminating of agency actions than official explanations,” Lawley said.

Mechanisms for ensuring that .xxx domain registrants behaved according to the rules seemed uncertain, Cerf said, leading him to worry that ICANN could be “propelled” into responding to complaints about content that didn’t meet public expectations and determining if IFFOR had met its responsibilities. Board member Rita Rodin, U.S., opposed .xxx because the name space wouldn’t provide an exclusive silo for adult content or solve the problems of keeping children safe online, she said. It’s “too early a concept,” she said. A real commitment by the interested community is needed to support an sTLD, said Raimundo Beca, but ICM is even farther away from that now than when the debate began.

But board member Peter Dengate Thrush, New Zealand, said a sufficiently identifiable community exists and has shown strong enough backing to warrant approval of .xxx. The fact that the sponsored community would be self-selected -- adult entertainment businesses wanting to locate in .xxx and embracing its policies -- doesn’t detract from the community’s identity, he said. The fact that IFFOR hasn’t finalized its policies is also a “thin argument,” he said; once launched, TLDs take time to get rules in place.

Dengate Thrush acknowledged opposition by members of the adult content industry who might otherwise have sought .xxx domains, but said backing by other community members -- some 76,000 of whom have “prereserved” .xxx names -- is enough to support approval of the sTLD. The board resolution is “particularly weak” on why directors think support is lacking, he said.

Cerf and others cited Governmental Advisory Committee (GAC) opposition as factor in rejecting .xxx. In line with its mandate, the GAC raised public policy issues, which deserve respect, Dengate Thrush said, though he argued that ICM addressed them. But member Njeri Rionge of Kenya said the proposal failed to account for global issues raised by introduction of an adult-content domain.

Board member Susan Crawford, U.S. dissented from the “weak and unprincipled” resolution, saying ICANN only makes trouble for itself when it reacts in ad hoc fashion to political pressure. Many board members are undoubtedly uncomfortable with adult content, she said. There’s nothing wrong with getting advice from the GAC, but ICANN has tried to avoid govt. “choke-point” control over online content. Because opposition by Australia, Brazil and other countries is “explicitly content-based,” it isn’t applicable, Crawford said. Govts. are free to require blocking or channelling of adult content in .xxx, she said. All the board can do is reject the application on technical grounds, Crawford said. “Astro-Turf” comments -- couched in grass-roots terms but part of a lobbying campaign -- that have peppered the board since it concluded the sponsorship criteria had been met in June 2005 don’t warrant rejection, she said.

Wrangling over whether ICANN will be snarled in content control means it need revisit the consistency of its TLD creation process and the technical merits of the request for proposals, as well as its own raison d'etre, said Joichci Ito. Content and political issues didn’t bear on his vote, he said.

Dir. Alejandro Pisanty, Chile, called Crawford’s picture “plainly wrong,” saying the board wasn’t swayed by political pressure. ICANN, he said, has “acted carefully and strictly within the rules” on .xxx, taking into account the lack of universal values on adult content. The proposed ICM registry agreement failed to extricate ICANN from content management issues, he said, and that’s what counts.

Potential Fallout?

Twomey was asked later if rejecting .xxx might have a chilling effect on applicants seeking TLDs with imagined or real implications for content. The Generic Names Supporting Organization is weighing responses to such controversies, he said. He warned against drawing conclusions on future rules from the “No” vote, saying they're only now being defined and won’t be finalized before year-end.

Cerf would never consider another proposal for .xxx, he said: “Not over my dead body.” He stressed that there are no plans now for new TLDs. By the time a similar situation arises, there will be a mechanism in place for resolving disputes, he said: “We all now know we need such a process.”

The decision “makes it clear that ICANN regulates content and engages in social engineering,” former ICANN at- large director Karl Auerbach said. By limiting the entry of new vendors, among other actions, ICANN is engaging in restraint of trade in the “only viable domain name marketplace,” he said. Any suit “probably” would have “very different grounds” from antitrust, ICM chief Lawley told us.

Some board members seemed to think that .xxx would put ICANN in the content business, said Internet lawyer Bret Fausett. Taken to its logical conclusion, he said, the board vote is “a rejection of the entire ’sponsorship’ concept.” A .xxx TLD would “put ICANN in the adult content enforcement business in the same way that .travel, .museum and .cat TLDs put ICANN in the business of deciding who is travel agent, what is a museum, and who is Catalan,” he said. The idea of sponsored TLDs has never been a good one, conceived as it was by trademark and business interests to protect their online brands, Fausett said: “I only wish they had abandoned the idea in 2003 rather than at this late date.”

Other Board Actions

“The meeting was one of ICANN’s busiest and most issue- intensive,” Cerf said. Key actions included: (1) A focus improving registrar accreditation agreements given trouble domain-name owners have had during RegisterFly’s crash. (2) Formalizing relations with 3 new country-code top-level domains -- Libya, Russia and Cote d'Ivoire. (3) Forming a new group to develop recommendations in the Generic Names Supporting Organizations Whois task force report. -- Dugie Standeford

ICANN Meeting Notebook…

Outsourcing the Internet rootzone oversight function, now overseen by the U.S. Dept. of Commerce, was discussed Fri. as a possible step by the ICANN board. The proposal was in the final draft of the ICANN President’s Strategy Report. “The task of the Department of Commerce is in fact a kind of auditing function which could be given by an external organization contracted by ICANN,” ICANN Chmn. Vint Cerf said. The advantage would be to distance root zone oversight from administration, he said. Decisions would be made openly, Cerf said, adding that more discussion is needed. “If it will happen is not clear,” he said. Cerf said he also would prefer not to have the signing key for the DNSSEC handed over to one administration. He said there were operational reasons to think of alternatives, such as an interim solution of having a special table to look up the zone keys for ccTLDs. -- ME ----

N. American Internet users stand alone in lacking direct representation at ICANN via Regional At-Large Organizations (RALOs). ICANN Pres. Paul Twomey last week signed RALO pacts for Africa and Europe. The Latin American RALO already is in place, and Asia’s MoU is to be signed in Oct. RALOs must be populated by Internet user organizations from their regions before ICANN will acknowledge them. They vote for 2 members on the At-Large Advisory Committee, on policy development.