News, views and what I choose to dos




Watch out: .xxx is coming to an Internet near you soon

Category : Domain names, Internet governance · by Feb 23rd, 2010

So I think there is a real chance that the Internet extension .xxx will appear on the Internet some time this year.

Of course, you really can never know since overseeing body ICANN is a complex beast, but following the first use of the organization’s Independent Review Process (IRP) and the resulting panel declaration [pdf], I don’t actually see that many obstacles in the path of .xxx: all the arguments have been had and pretty much rejected by a very distinguished set of judges. And of course the current chairman of ICANN was emphatically of the view that dot-xxx should have been approved at the time it was officially rejected back in 2007.

My personal feeling is that dot-xxx is a good idea. It gives a place for pornography to reside online – and allows for pornography-specific rules to be created; it allows for companies and even countries to block access to it if they decide it is against their laws or policies; and it makes it possible that pornography could be pulled out of other top-level domains, so you don’t have it scattered all over the Internet.

As someone who has a little bit of knowledge about the adult industry and the Internet through researching my Sex.com book (although I would not put myself forward as an expert), I would say this is but an inevitable next step for pornography on the Internet. The history of sexually explicit media shows the same pattern over and over again.

Anyway, that’s an aside. I have written a lengthy story for The Register on this issue that includes the views of ICANN’s current CEO, Rod Beckstrom; ICM Registry’s (company behind .xxx) chairman Stuart Lawley; ex-ICANN chairman Vint Cerf; and Internet governance expert Wolfgang Kleinwachter.

You can read the three-part story on El Reg and I have posted it below for those too lazy to click a link.



Plan for top-level pornography domain gets reprieve

ICANN to reconsider .xxx denial

A plan to create a specific area of the Internet for pornography has been given a reprieve by a distinguished panel of judges.

The panelists – who included a former International Court of Justice judge – told Internet overseeing body ICANN in a majority decision [pdf] that it was wrong to reject an application for the top-level domain dot-xxx three years ago.

That decision made by ICANN’s Board in March 2007 was “not consistent with the application of neutral, objective, and fair documented policy,” the panel concluded. It also decided in favor of the company behind the dot-xxx application, ICM Registry, in three of the remaining four issues under dispute and ordered ICANN to pick up fees and expenses totaling $475,000.

As a result of the panel’s declaration, the ICANN Board will now reconsider the dot-xxx application and decision at its meeting in Nairobi next month, opening the way for dot-xxx’s possible inclusion into the Internet’s “root.”

However, the ICANN Board is not obliged to adopt the panel’s findings, and an initial response by its management made it clear that the organization is keeping its options open. CEO Rod Beckstrom, blogging about the decision, pointed out that the panel decision was not unanimous and that there had been significant community opposition to the application.

That post drew immediate criticism from some in the Internet community who felt ICANN was attempting to backtrack from the panel decision, something Beckstrom subsequently refuted. “I was not involved in the history of this issue so I have no vested interest. I was trying to highlight the possible things that can happen now. In too many cases, people act like everything was an easy decision.”

Beckstrom pointed out that it is the Board that will ultimately decide what to do and that his job as CEO is to ensure ICANN’s staff do the best job possible in providing the Board with the objective advice and information it needs.

In that respect, ICANN’s chairman, Peter Dengate Thrush, is now in an interesting position. As chair, he will direct Board discussions over the panel’s report, but prior to his chairmanship he was one of five Board members that voted against the decision to reject dot-xxx, making a strong public statement against the vote and noting the “particularly thin argument” that the Board made in rejecting dot-xxx. It was this same argument that was also rejected by the independent review panel.

ICM Registry chairman Stuart Lawley hailed the declaration as a victory not just for the company but also “the ICANN model of private sector management of the Domain Name System.” And remarkably, considering it lost the dispute, ICANN’s Beckstrom also recognized that the case was successful “from an outside perspective,” telling us that it had put back an issue in front of the ICANN Board that it previously had no intention of revisiting.

The man who headed the Board at the time of the vote, former ICANN chairman Vint Cerf, told us that he was disappointed with the result since he agreed with the dissenting opinion and reasoning of one of the three panelists. Nonetheless, he welcomed the process itself. “I think the fact of the IRP (Independent Review Process) is important to ICANN processes so regardless of the outcome, it strengthens ICANN because it is a process that allows response to complaints.”

What was decided

Two main issues with respect to the dot-xxx application were decided in favour of ICM Registry.

First, the panel decided that the ICANN Board had been wrong to reopen the question of whether there was a suitable “sponsoring community” for dot-xxx after it had already agreed that the company had passed this step and approved a decision to enter into contractual negotiations.

In so doing, the panel rejected the recollections of ICANN’s former chair, vice-chair, and president as “not adequately refuting” the various public statements made about the process for new top-level domains and the dot-xxx application.

And secondly, the panel decided that the final vote to reject the application was “not consistent with the application of neutral, objective and fair documented policy” – i.e. the application was treated differently to other applications such as those for dot-mobi, dot-jobs and dot-travel.

The panel also found “grounds for questioning the neutral and objective performance of the Board” and said that the four reasons the Board gave for rejecting the dot-xxx application were “not fully coherent”.

The current Board members, the majority of which were not on the Board at the time of the vote will need to decide whether it agrees with the panel findings and then what the implications of that are.

ICM’s Lawley is quite clear about what he expects. “I don’t want this to become a huge debate all about ICANN’s bylaws or another cycle of publishing contracts for public review. We have been through five iterations of the contract; it is on the table and we will be expecting ICANN to execute on that contract. It is a question of ‘is ICANN going to do the right thing or not?’”

Why the review is just as important as the decision

Regardless of the decision, the review process itself has been recognized as a crucial step in ongoing efforts to embed an open and multi-stakeholder decision-making body at the heart of the Internet’s domain name system. Under the ICANN model, all those affected by changes in the Internet’s infrastructure – whether governments, business, or individual Internet users – are entitled to an equal say in its evolution. It is especially ironic then that it is the Board’s decision to deny dot-xxx that has been subject to review and rejected.

It was initial approval of the dot-xxx application in 2005 that sparked vigorous opposition from governments, particularly the US government, which had been the focus of a determined campaign by right-wing Christian groups. This proved particularly difficult for ICANN’s management and Board since at the time, governments were debating the organization’s very existence at the World Summit on the Information Society (WSIS).

The review panel’s declaration makes specific mention of an apparent “volte face” in ICANN’s approach to dot-xxx as soon as it received a letter from the US government recommending that the top-level domain not be introduced. This was followed by letters from a number of other countries attacking dot-xxx and led to furious diplomacy on the part of ICANN’s then-president and CEO Paul Twomey, who was put in the impossible position of trying to placate governments while at the same time arguing that ICANN needed to remain independent of government influence.

In the view of acknowledged expert on Internet governance, Professor for International Communication Policy and Regulation at the University of Aarhus, Wolfgang Kleinwächter, the dot-xxx decision came down to these high-level politics. “In my eyes the ICANN Board was afraid to risk a confrontation with the GAC (Governmental Advisory Committee) and in particular the US government.”

Kleinwächter points out that the decision was made while ICANN was still beholden to the US government under their Joint Project Agreement (JPA) – an agreement that was replaced with a more autonomous Affirmation of Commitments (AoC) this November. “I would be interested to see how such a process would work under the AoC framework,” Kleinwächter notes.

Ultimately, ICANN survived the WSIS process and set about fixing holes in its constitution, not least of which was a perceived gap in the organization’s accountability and transparency. One of the key elements of that accountability was the Independent Review Process (IRP), created in December 2002 but unused until ICM Registry filed its complaint in 2007.

As such, the successful conclusion of the first IRP complaint represents the first time that an ICANN Board decision has been reviewed by external experts.

The process wasn’t fast, or cheap, with ICM’s Lawley telling us initial estimates were a factor of nine out. It ended up costing the company $3.5 million and took two years to complete. ICANN’s costs, separate from the $475,000 costs, are expected to top $2 million.

The fact that it was the first use of the IRP process also led to the unusual situation that three of the five issues under discussion were about the process itself.

Ultimately, the panel reached several crucial conclusions: that its declaration should not be considered binding on the ICANN Board, but that the review process itself would not be “deferential” to decisions by the ICANN Board.

The result is that the ICANN Board is free to make whatever subsequent decisions it wants but that it can expect panel reports to be blunt and free-thinking in their assessment.

The panel sidestepped the issue of whether ICANN should be subject to international law (instead of just Californian law) but did decide that the organization should not be entitled to use solely the “business judgment rule” – which would have put a far higher burden of proof on the applicant before a decision can be made in their favor. Instead, ICANN was held to a “good faith” standard.

The result of the whole process is a clear demonstration of accountability at the top level of the Internet. It is now the unenviable task of ICANN’s current Board to determine how to respond to strong criticism of a previous decision, especially since the organization is due to open up applications to many more top-level domains in the next year – something that former chairman Cerf thinks will provoke similar issues to the dot-xxx application.

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