ICANN's Ex-Ombudsman Urges Designating .gay a Community gTLD, in Critical Report
A report from now-former ICANN Ombudsman Chris LaHatte criticizing ICANN's process for deciding whether to designate the .gay generic top-level domain as a community gTLD could influence the debate over the procedures for the organization’s gTLD program even if it doesn’t change this outcome, domain names industry stakeholders told us. The ICANN board should reject findings by two separate Economist Intelligence Unit (EIU) panels that dotgay’s applications to designate .gay as a community gTLD didn’t meet a strict interpretation of ICANN’s definition of a community, LaHatte said in the report. LaHatte submitted the report to ICANN before his departure and published it on his personal blog. ICANN hadn’t released LaHatte’s report by our deadline. Dotgay has been seeking community status for .gay even as three other registries have maintained their applications for the gTLD -- Top Level Design, Minds + Machines and Rightside. A community designation automatically would award .gay to dotgay, while the gTLD would be auctioned if it remained in contention.
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“This is the time to recognize that even if the EIU evaluation” didn’t say dotgay’s application didn’t meet the panels’ strict rubric for Community Priority Evaluations (CPE), “the community is real, does need protection and should be supported,” LaHatte said. ICANN contracts with EIU to evaluate all CPEs submitted by domain names registry applicants seeking to have a gTLD designated as a community gTLD. ICANN’s Board Governance Committee (BGC) rejected dotgay’s appeals of both EIU evaluations but said the registry could seek a review by the ICANN ombudsman, leading to LaHatte’s report. He noted that his report “will be to some extent controversial,” because it’s “unusual for the ombudsman to intervene at this stage between a BGC recommendation” and a pending final decision by the ICANN board.
“I am very concerned about the apparent inevitability that the applicant will not be able to progress as the community applicant for this string, which would otherwise result in the other applicants being able to pay the highest price at an auction, which is almost certainly beyond the reach of the applicant, which is a community-based organization with limited resources,” LaHatte said. ICANN "recognizes the important role of the Ombudsman as an accountability mechanism," a spokesman said in a statement. "The Board will consider the Ombudsman’s recommendation(s) with respect" to dotgay's application.
Dotgay applications scored less than the 14-point minimum on a 16-point scale largely because the EIU panels said .gay didn’t demonstrate applicability to the entirety of the community that dotgay described in its applications. Dotgay identified .gay’s community as including all people who self-identify as gay, lesbian, bisexual, transgender, queer, intersex, ally and “many other terminology -- in a variety of languages -- that has been used at various points to refer most simply to those individuals who do not participate in mainstream cultural practices pertaining to gender identity, expression and adult consensual sexual relationships.”
“It’s about time that someone spoke up about how our application has been treated,” said dotgay Vice President-Marketing Jamie Baxter in an interview. The EIU panels’ evaluations are only a recommendation but ICANN has generally accepted those evaluations “without any additional thought involved,” he said. “That’s why this sort of disruption is so important right now.” ICANN created the CPEs process to designate a gTLD linked to a community as a way of protecting them for a community’s interests rather than allow the gTLD to “be thrown into a bidding war in which the community isn’t going to be able to compete with investors,” Baxter said, noting Nu Dot Co’s recent $135 million winning bid for the .web gTLD (see 1608010008). “If .gay doesn’t become a community gTLD, there’s a tremendous danger” that the community won’t be able to have an influence over the use of .gay domain names, he said. “This is a very unique [gTLD] string and it requires very cautious movement."
LaHatte’s .gay report is “an interesting swan song” since the ICANN board decided not to renew LaHatte’s contract amid the Cross Community Working Group on Enhancing ICANN Accountability’s work on a second set of changes to ICANN’s accountability mechanisms, which includes an examination of how the ombudsman’s role should change after the Internet Assigned Numbers Authority transition, said internet lawyer Greg Shatan of McCarter & English. “Dropping this bomb on ICANN on the way out the door might draw more attention to the issues” that dotgay has raised about the CPE process, said Shatan. The ICANN board would be expected to consider an ombudsman’s report on a CPE application after accepting the BGC’s findings because the ombudsman doesn’t have jurisdiction until that point, Baxter said. “I would hope that ICANN would look very carefully at [LaHatte’s] comments, though I’m not entirely confident they will.” It’s “an uphill battle at this point to change how things go,” Shatan said. “I’d expect the board to acknowledge these concerns but perhaps argue that they’re not completely applicable and move on.”
The .gay controversy “is an issue not unlike” ICANN’s controversial assignment of the .africa gTLD, over which ICANN is currently facing a lawsuit in U.S. District Court in Los Angeles (see 1603070062, 1603280050 and 1604140056), said Internet governance scholar and consultant John Laprise. “This comes at an awkward time as the IANA transition is steadily advancing” and “is also squarely at the center” of ICANN’s accountability revamp. The .gay controversy also highlights “widespread” homophobia outside of the U.S. and Europe, Laprise said. “When we talk about the global Internet community that constitutes ICANN, it’s important to remember that most of them probably don’t approve of homosexuality at the very least.”
LaHatte “in a sense is shining a light on a number of bigger issues with the gTLD program, some of which relate to the CPE process and some of which relate to how ICANN defines what a community is,” Shatan said. “He’s pointing out some rather deep flaws in the community application process, which I think is instructive for how that process is handled in the future.” The .gay controversy “shows that the [New gTLD Subsequent Procedures Policy Development Process (PDP) Working Group] needs to take a hard look at the community application process,” he said. “The greatest influence that [LaHatte’s] report will have may more likely be on future applications than on dotgay’s application.”