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What ICANN’s chair said about .xxx at the time

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

On Friday, there was a very interesting decision made by an independent panel of eminent retired judges with respect to an application five years ago for a “.xxx” Internet extension that would be used purely for online pornography.

The dot-xxx application was rejected by ICANN in 2007 following a long, complex and tortuous process. The man behind it, Stuart Lawley, vowed to fight on and was the first person to use ICANN’s Independent Review Process to get the decision revisited. It took two years and $3.5m but he finally got it [pdf] – and it was all in his favour.

I’ve spent today interviewing Stuart, as well as ICANN’s current CEO Rod Beckstrom, and I also sent out questions to a variety of other people who were involved in the process. I’ve written a lengthy story for The Register that hopefully it will publish in full tomorrow, but if it doesn’t, I’ll stick whatever it leaves out here on my blog.

Anyway, all that apart, one of the most interesting things that I recalled from the whole dot-xxx saga was the statements from Board members in 2007 that voted against the rest of the Board in rejecting dot-xxx. In fact I was sat in the audience at my first ICANN meeting as a staffer and at the request of the chair and CEO, I immediately grabbed the transcript from the session and posted it on the ICANN blog with hyperlinks so that no one could argue that ICANN was trying to hide anything.

Most famously Susan Crawford was highly critical. This stood out because she was combative and publicly critical of many of ICANN’s flaws. But I recall that another Board member – Peter Dengate Thrush – was also highly critical.

As it happens, Peter is now chairman of ICANN and will be leading the Board discussions about what it should do with the independent panel report. I remember him being very lawyerly in his public statement (well, he is a barrister) but until I dug out what he actually said, I have forgotten how sharp he was.

You can view the whole Board transcript online, and below I’ll paste Peter’s part. What is striking is that Peter rejects the reasons given in the Board resolution for not allowing dot-xxx, and even goes so far as to say that they presented a “particularly thin argument”. And, three years later, it seems that two of three eminent judges agree with him.

So it will be interesting to see if Peter’s view remains the same and so what the ICANN Board will do with the panel’s declaration. You never know, we could see “.xxx” in the root before the end of 2010.

Peter Dengate Thrush’s comments below (and here):

PETER DENGATE THRUSH: I think it’s probably better to say something now than at the time we vote. I think it’s probably easier so I’ll just say just a few things now and just vote when the voting comes.

I’m going to vote against this resolution and, in fact, I sought to move a motion in favor of adopting this applicant.

I’ve been concerned about three aspects of this application. One, the sponsorship community and the nature of that community; the enforceability of the contract; and the nature and applicability of GAC advice.

On the first, the issue of the sponsored community, I concluded that there is on the evidence a sufficiently identifiable, distinct community which the TLD could serve. It’s the adult content providers wanting to differentiate themselves by voluntary adoption of this labeling system.

It’s not affected in my view by the fact that that’s a self-selecting community or anything about the nature of self-selection, nor as a subset of that issue, is it affected by the permanence or impermanence of that community. People may choose to be a part of it for a period and then leave. None of that affects the ability to identify members of the community at any time that’s required. Nor am I affected by the withdrawal of some of the supporters of this application in recent months.

And I think it’s a particularly thin argument that’s been advanced that all of the rules for the application and operation of this community are not yet finalized. I think that’s the nature of this process and they have to be given an opportunity to create their rules and to manage the system.

I was specifically concerned about active opposition from members of the adult content provider community who might have been members of that group. That’s the first time in any of these sTLD applications we’ve had active opposition. And we have no metrics, either in our RFP or in any other kind of precedent, to establish what level of opposition by members of the potential community might have caused us concern.

In the end, I’ve concluded that the level of remuneration demonstrated by the surviving community, the number of preregistrations and their provenance is sufficient. I do not think that dissent by incumbents in a market objecting to the entrance — the entry of a new player should be given much weight.

I think the resolution that I’m voting against today is particularly weak on this issue: On why the board thinks this community is not sufficiently identified. No fact or real rationale are provided in the resolution, and I think given the considerable importance that the board has placed on this in correspondence with the applicant and the cost and effort that the applicant has gone to to answer the board’s concerns demonstrating the existence of a sponsored community, that this silence is disrespectful to the applicant and does a disservice to the community.

The contract. I’ve also been very concerned, as other board members have, about the scale of the obligations accepted by the applicant. I think to a certain extent, some of those have been forced on them by the process. But for whatever reason, I’m, in the end, satisfied that the compliance rules raise no new issues in kind from previous contracts.

And I say that if ICANN is going to raise this kind of objection, then it better think seriously about getting out of the business of introducing new TLDs.

It’s the same issue in relation to all of the others and we either come to terms with what it means to be granting TLD contracts and the consequences that flow or we stop.

I do not think that this contract would make ICANN a content regulator. I would, like others, be very concerned if I thought that was a possibility. And I come then to the GAC advice.

I think issues were raised by the GAC as to matters of public policy concern to that committee, and I just want to record mine — and I think the rest of the board’s — great appreciation of the value of GAC advice, and the respect required to be accorded to that. Given that it’s the collective expression of will of governments here to support the ICANN mission in providing their specialist public policy advice. I think these particular concerns, however, were not well — were not at all quantified or prioritized, but nevertheless, the applicant responded, in my view, sufficiently in relation to the concerns raised, proposing suitable mechanisms to deal with the matters raised by the GAC.

I have to also record how unhappy I and other members of the board are with the sTLD process. This applicant’s been put to significant expense and suffered considerable delays for reasons largely outside its control. It’s also had to suffer, as we’ve had, lots of mistaken assertions about adult content, much of which raises issues well outside the relatively narrow scope of the RFP and the issue which the applicant had to meet.

So in that regard, I welcome the developing work in the GNSO to install a regular, repeatable, hopefully contentiousless process for the introduction of new TLDs. So for those reasons, I vote against this resolution, and would prefer to have been voting in favor of an applicant — of the application to adopt it.

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(3) comments

[...] For more reading see: icann.org/en/irp/icm-v-icann/irp-panel-declaration-19feb10-en.pdf [decision] blog.icann.org/2010/02/landmark-step-in-icanns-use-of-accountability-mechanisms/ icmregistry.com/ kierenmccarthy.com/2010/02/23/what-icanns-chair-said-about-xxx-at-the-time/ [...]

Andrew Bennett
5 years ago ·

Looks like you better start writing the sequel to your sex .com book Kieren: ‘.xxx One extenstion, One Tribunal, Five years and the Brutal Battle for the best new gTLD’

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