Legal Research

Is .XXX back from the dead?

By scott

Could .XXX be coming to an internet domain near you soon? That will certainly be the hope of the ICM Registry following a ruling by the ICANN Independent Review Panel. In the Panel’s first ruling since the process was introduced six years ago the panel ruling 2-1 that ICANN should revisit its decision to refuse ICM’s application for a .XXX domain. The panel found ICANN”s handling of the .XXX application was in violation of ICANN’s Bylaws and Articles of Incorporation, as well as international and California law.

Attempts to introduce a .XXX domain have been going on since 2000 when ICANN first opened up applications for a proof of concept plan to add new generic Top Level Domains (gTLDs). Falling at the first hurdle then, it was back in 2004 as one of 10 applicants as a sponsored Top Level Domain (sTLD). At this time ICM seemed to have some level of support both from those within the industry and those within the US government.

ICANN gave preliminary approval to the domain on 1 June 2005, and then entered into commercial and technical negotiations with ICM. ICANN found itself under intense political pressure to turn down the domain. The US Government, which was initially in favour of the domain changed its position following a number of US family and child protection groups attacking the proposal, and several conservative groups campaigning against the domain due to concerns that it would legitimise pornography. Several other governments also expressed some concern over the domain. The power of the US in this matter was highlighted by the fact that even had ICANN approved the domain, their decision could still have been blocked by the US Commerce Department.

This lead ICANN to delay making a final decision twice. Then in January 2007 ICANN decided to revisit the issue, asking to additional changes to be added to the proposed agreement with ICM and then re-examining the sponsorship criteria in particular whether ICM could still demonstrate that the community the domain was supposed to support, actually supported its creation.

In March 2007 in what looked like the final nail in the coffin of .XXX, the ICANN board once again rejected the establishment of a .xxx top level domain (sTLD). The vote was 9-5 with a single abstention, that of CEO Paul Twomey. ICANN’s official position was that “there are credible scenarios that lead to circumstances in which ICANN would be forced to assume an ongoing management and oversight role regarding Internet content, which is inconsistent with its technical mandate”.

Paul Twomey said the decision was not political. “The heart of the decision today was not driven by a political consideration.” Not many people outside of ICANN ? even those like me who were against the creation of the domain [For the record my objection had nothing to do with the concept of an xxx domain , and was more to do with the process for granting domains and the question of whether additional gTLDs and sTLDs of any kind were actually needed. My article ‘ Do we really need more gTLDs?’ Electronic Business Law (2005) 7 EBL 6, 11 explains my thinking at the time.] - were convinced with the arguments put forward for rejecting ICM’s application.

Some inside ICANN also agreed things didn’t feel right. Professor Susan Crawford, stated “I found the resolution adopted by the Board (rejecting xxx) both weak and unprincipled. I am troubled by the path the Board has followed on this issue since I joined the Board in December of 2005. I would like to make two points. First, ICANN only creates problems for itself when it acts in an ad hoc fashion in response to political pressures. Second, ICANN should take itself seriously as a private governance institution with a limited mandate and should resist efforts by governments to veto what it does”

She added: “We should be examining generic TLD applicants on the basis of their technical and financial strength, and we should avoid dealing with ?content? concerns to the maximum extent possible.”

Fast forward three years and the review panel seems to agree that ICANN made mistakes in this case. The key finding was that ICANN’s decision to reconsider the sponsorship criteria, once it had already found them to have been met did not follow its own documented policy. The Panel accepted that as ICANN was bound by a ‘duty to take account’ of views of governments and whilst recognising the government pressure on ICANN was very influential it found it unclear if this pressure was decisive in ICANN reaching its decision pointing out that had ICANN simply yielded to such pressure it could have disposed of ICM’s application earlier.

The panel also found grounds for questioning the neutral and objective performance of the board in that it seems that the ICM registry was held to a standard not imposed on any other sTLD or gTLD applicant - in short one relating to policing content.

ICANN did secure one important victory and that was a ruling that the Independent Review Process, and therefore the panel’s decision is advisory and non-binding, meaning that it does not legally have to do anything about the ICM application. Interestingly the one dissenting opinion totally backed ICANN’s actions and claimed the “majority opinion will undermine the governance of the internet community by permitting any disgruntled person, organization or governmental entity to second guess the administration of one of the world?s most important technological resources.”

What will happen next? Watch this space.

Full post as published by Information Overload on February 24, 2010 (boomark / email).