U-Turn Against .XXX Said to Violate Law, ICANN Rules
ICANN’s 2007 rejection of ICM Registry’s application for a .xxx top-level domain was “secretive, shifting, unpredictable, unfair, discriminatory, and in bad faith,” lawyers for the registry said Thursday in a 522-page filing with the International Center for Dispute Resolution. The complaint, the first under ICANN’s independent review process, alleges that the Internet body broke California and international laws along with its own bylaws and articles of incorporation when it bowed to pressure from the U.S. and other governments and reversed a 2005 board decision approving the controversial sponsored TLD (sTLD). ICANN said its decision was “more than amply supported by the facts.”
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ICM started its independent review request in June. The “full memorial on the merits” it filed Thursday responds to ICANN’s reply to the arbitration request. ICANN has until March to respond this time, and arbitrators could decide the case this spring, ICM President Stuart Lawley told us.
The route to .xxx’s final rejection was long and tortuous. It ended in March 2007 when ICANN directors -- citing the registry’s failure to meet sponsored community criteria and the specter of ICANN involvement in content regulation -- rejected the application (WID April 2/07 p1). A central issue in the arbitration is whether the 2005 vote approved the sTLD. ICANN said it was simply a decision to proceed to the “next step.” ICM claimed the resolution “reflected the Board’s unconditional decision that ICM’s application satisfied the RFP evaluation criteria, including the sponsorship criteria.”
ICANN touts its openness and accountability and “expects to be an international model of independent governance, subject only to the checks and balances” of its bylaws and articles of incorporation, the document said. But despite the “lofty rhetoric,” its process for choosing new sponsored TLDs in 2004 -- and in particular the handling of ICM’s application -- lacked openness and was grossly unfair, it said. “ICANN showed itself all too willing to abandon its foundational principles when faced with improper political pressure.”
The U.S. government’s role in quashing .xxx remains a sore point for the registry. A 2005 Freedom of Information Act request by ICM revealed a “clear shift” in the Department of Commerce position on the sTLD over several months, Lawley said in a witness statement filed with the arbitration document. The NTIA, which supported .xxx at first, became increasingly concerned about objections from the Christian right, he said.
“I believe that the position of the U.S. Government -- belatedly against the establishment of an .XXX sTLD communicated to ICANN, informally and through official letters, influenced ICANN” not to approve the registry agreement, Lawley said. Other governments, working through ICANN’s Governmental Advisory Committee, also balked, citing vague public-policy concerns they hadn’t raised during the long approval procedure, the registry said.
ICANN construed the community-sponsorship requirements of the RFP “broadly for some, and narrowly for others,” former NTIA official and ICM counsel Beckwith Burr said in a witness statement. Until the U.S. changed its mind and pressured ICANN to reconsider its approval of .xxx, ICANN was more interested in opening the domain-name space to “powerful players than it was to enforcing strict sponsorship criteria,” she said.
It would have been arbitrary to reject ICM’s application in 2005 based on rigid application of sponsorship criteria while accepting applications with similar or weaker credentials, Burr said. For ICANN to accept .xxx and then apply tougher criteria because of political pressure “can only be viewed as egregiously arbitrary and discriminatory,” she said.
ICANN worked with ICM is good faith to solve the “apparent problems,” but “everyone understood that the ICANN Board continued to have serious concerns” about the sponsorship aspect of the application, ICANN’s arbitration filing said. The “next step” directors voted on in 2005 was to see whether their concerns could be handled through the proposed registry agreement -- not confirmation of .xxx approval, it said.
Another contentious question is whether the arbitration proceeding is binding on the parties. ICANN argued that it’s entitled to a “deferential review standard” in the IRP. As long as board decisions are made openly and in good faith, it said, “there is a strong presumption “ they're appropriate. But ICM disputed “ICANN’s gross misrepresentation of the process as some sort of summary procedure, resulting in a non-binding advisory opinion, to be followed by ICANN in its sole discretion.”
The case will ultimately test whether ICANN’s experiment in self-government can work or the organization “in fact represents the worst of both worlds,” ICM said. It said that would be a private company wielding governmental powers, supposedly independent but “secretly acting at the direction of governments, and without any accountability.”