Last week, I received a highly unusual email claiming that an article on my personal website was libellous and insisting I take it down within a week.

Even more unusually, the article was from 2002 – yes nearly a decade ago – it is called “Domain scam merchants get legs sucked by toothless OFT” and it tells how the same man had had his knuckles rapped by the Office of Fair Trading (OFT) in the UK having been caught trying to sell domains for top-level domains that do not exist. Examples were dot-brit, dot-sex, dot-scot.

The OFT had failed to do anything until the two people at the heart of the story crossed the line in the United States by using 9/11 as a way of advertising “patriotic” dot-usa domains (which also do not exist). The Federal Trade Commission (FTC) was not at all amused and got a temporary restraining order against them, even putting out a news release on the matter. There were a series of other news releases as the FTC fought them, winning “as much as $300,000 for consumer redress”. Clearly selling non-existent domain names can be a profitable business done right.

The final judgement [pdf] in the case is what is interesting though. It is best summarized with this excerpt:

IT IS FURTHER ORDERED that in connection with the advertising, promotion, offering for sale, or sale of domain names, Defendants are hereby permanently restrained and enjoined from failing to disclose, clearly and conspicuously, any material limitation or condition on the usability or functionality of those domain names.

Of course it is theoretically possible for the dot-usa top-level domain to exist. There is nothing to stop you setting up a private network with whatever endings you wish. However, only the IANA database holds the Internet extensions that are readily available on what we all think of as “the Internet”. And so the FTC constrained them from the sale or advertising of any domain name that didn’t require a special workaround to get them to resolve in your browser.

The very big difference in 2012 is that these top-level domains – and many thousands like them – are just about to become a reality under the new gTLD program run by ICANN. In fact, in just over a week, the full list of extensions applied for is due to be announced, and industry insiders are expecting between 1,000 and 1,500.

Under these circumstances, suddenly the constraints under which the people in question have been held for a decade will be lifted – because these domains will be on a path to existing on the broader Internet. There is nothing to suggest that they intend to repeat their previous behaviour, but it is a strong indicator that some unscrupulous individuals will seek to use the inevitable consumer confusion to scam people.

Libel claims

As for the libel claims, unfortunately due to the uncertain libel rules that continue to exist in the UK (they are being reformed as we speak), and thanks to a UK government that continues to believe that putting pressure on ISPs is a possible solution to the various issues that the Internet continues to throw out, even though his claims appear baseless, he has had some success in having his name taken offline in connection with the story.

The Register pulled the original article after it was approached recently. It was a ten-year-old article receiving no hits and so the company seemingly decided that it was easier just to pull the article that argue about it. The person complaining claims the article was pulled because the article contained libellous material; there is no evidence of that assertion.

The OFT actually redacted their names on its press release from 2002. I asked them why. They responded: “We felt that continued publication of personal details was no longer necessary, particular in light of our obligations under the Data Protection Act.”

He also approached the hosting company (Heart Internet) for my personal site (not this one, my kierenmccarthy.me.uk site) and told them the article was libellous. He claimed that the assertion that theys had been investigated in 1997 and 1998 for another scam was simply not true. Here’s what the original article states:

…the same two brothers, at the same address, except this time under the name TBS Industries were investigated by the OFT in 1997 and 1998 for deceptive marketing.

Which is true – with one exception which the person complaining appears to claim is libellous. That the other party is in fact his father, not his brother. We fear that here, he may be absolutely right — Well, right in the fact that he is his father (and frankly, he’s likely to know better than we are); not that it is libellous to suggest otherwise.

Regardless of the fact that there is not a good reason to pull the article, Heart Internet – at the moment at least – is going the safe route until it has reviewed the situation and has removed public access to the article on my site.

Anyway, as a measure of good faith, we have offered them a right to reply to the original article – which you can find on this website here – which we hope he will take up.

In the meantime, we hope that the action shown by the OFT in the UK and the FTC in the US is sufficient to warn off potential domain name scammers as the ICANN process puts out hundreds of new Internet extensions in the next year. We fear, as many others do, that it may not.

Resources

• Final FTC judgment
• FTC caselist
• OFT press release (2002)
• Original Register article

I wrote an extensive review of the dot-jobs saga earlier this week on .Nxt called: The case study that could kill ICANN.

This afternoon, I saw the Stephane van Gelder had referenced it in a blog post: What ICANN is doing wrong.

I wrote a lengthy response to Stephane’s post, but for some reason it repeatedly could not get past his anti-spam mechanisms. Having spent a little bit of time writing a response, I figured I would post it here instead. It’s below:

————

I think you’re being a little unfair to me. It is relatively easy to follow the article, even though the process itself was a little convoluted.

But anyway, this is the real problem: a very large number of people now know exactly what has happened and how bad it is. But what will happen? How will anyone be held to account? Will anyone even admit publicly that this is an example of poor governance?

Even if you were to raise it as GNSO Chair at the next ICANN meeting, you would likely be shouted down or told it is not in the GNSO’s remit, or be put under enormous peer pressure to keep it out of the public sphere. You’d probably be offered a private briefing. Anything to prevent the taboo being broken.

The best anyone can expect is that some Board members will dig into the issue.

And in response they will be told by the staff that some of the criticisms are valid, but they are old news and have already been dealt with. We have already moved on.

Then they’ll be told that there are inaccuracies in the article (but won’t go into too much detail over what they are because they’ll be very minor). And let’s not forget this was written by Kieren McCarthy [insert some slur].

Some weak reason will be given for the delays and the redactions and there will be a promise to do a review, or point to an ongoing review, or some kind of related delay tactic.

And then it will be pointed out that this is really a minor issue and ICANN is dealing with so much at the moment that some things are bound to slip through the cracks…

If a Board member continues to push, they will find themselves under pressure by other Board members: why are you pushing this so hard? Their motives will be impugned and they will find themselves given the cold shoulder by staff. They will find themselves being briefed against on the Board and in the community (and there are a few Board members that can testify to this).

Basically, everything will be thrown at the issue in order to avoid hard questions being asked, and real explanations being extracted.

Once it has then become far too big an issue, the Board members will get their secret apologies and promises to improve and be made to feel as if they have done their job.

But at that stage, they certainly won’t want to embarrass the staff or ICANN: that would only aid the organization’s enemies, and it would only encourage people to do-down the organization. So no one will say anything publicly.

And then you’ll find that absolutely nothing changes.

And when no one follows up on the lack of change (because it was never written down or made public), the impact will be to reinforce the reality that there is no actual accountability.

Now, the staff are not *bad people* – I worked there for years and have a lot of respect for them and the job they do: they work hard, deal with a lot of stress in a complex situation and they keep a smiling public face despite it all.

However, over time the wrong culture has developed and it is *that* which is demonstrated time and again in this dot-jobs issue. When you add up all the small, wrong decisions being made for the wrong (self-serving) reasons, you are left with a pretty poorly functioning organization.

This is why the calls for improved transparency and accountability continue to cry out, again and again, year after year. You can’t *make* ICANN do anything. And those that have been there the longest know that.

So they continue to do what they think is best, and they develop a raft of defense mechanisms for when people tell them they have got it wrong.

Until ICANN is forced to admit it is wrong on occasion. Until someone is publicly disgraced to set as an example for what is not acceptable. And until ICANN recognizes that the longer it keeps screw-ups ‘in the family’, the more this damaging culture will be reinforced, nothing will change.

That change can only come with a new CEO. And whoever takes over in July will have to constantly focus on the culture issue if they are to impact it because it is so entrenched in key people. Will they have the time and energy to fight that battle when there is so much else going on? Probably not.

So how do you fix an institutional problem? It’s not that hard in reality.

First, you stop making excuses and acknowledge that there is a problem.

And then you hold a proper public review of yourself where the truth, warts an’ all, is allowed to come out.

That is what happens in properly functioning democracies – the unpleasant truths are pulled out in public. And things are always better off as a result.

I’m not holding my breath though.

UPDATE: The ICANN Board just published the minutes from its meeting on Tuesday and intriguingly it has formally “triggered” the GAC-Board consultation that is explained in greater depth below.

That means the Board is prepared to say it disagrees with the GAC on 17 March and then, presumably, will approve the Applicant Guidebook at its formal Board meeting the next day.

On Tuesday I wrote a piece about the damaged decision-making process at ICANN at the moment. Right at the top I wrote:

Adding concern to the general vagueness is the inclusion of precise wording that means something specific, although no one is quite sure what. It is this:

“This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.”

This wording is indecipherable to any but the greatest of insiders. And that fact, combined with the reality that this Board-GAC meeting is one of the most significant Internet governance meetings in the past five years, makes it all the more frustrating.

Somewhat inevitably, people have emailed me saying “but aren’t you an insider? So what does it actually mean?” So, as briefly and as an coherently as I can manage here is my explanation for what this means. I am more than happy for people to disagree or add perspective in comments below; in fact, I’d encourage it. But anyway, here goes…

Bylaw provision

Since 2002, ICANN has had to tread a very careful line with governments. In the ICANN’s system they are only an advisory group – they cannot set policies or dictate the agenda. It was purposefully designed like this from ICANN’s inception in 1999. But, for obvious reasons, governments are not too enamoured with the idea of playing second-fiddle to anyone.

This became a really big issue in 2002 (roughly) and 2003-2005 were marked by the UN-run World Summit on the Information Society (WSIS) where many of the world’s governments effectively tried to take over ICANN’s role. Ultimately they weren’t successful – but only because of other governments. In short, if the world’s governments get together and agree something, it is done. And there’s not much you can do about it.

ICANN’s Board did a very smart thing in 2002 and pulled in Paul Twomey – who was previously head of the Governmental Advisory Committee, or GAC, at ICANN – as CEO. The Board needed a government person in charge to get ICANN through the WSIS process in tact. And so Twomey stepped up and effectively saved ICANN from being dismantled by the UN (it’s much more complicated than that but this is a very quick overview).

So…

With that background out the way. Twomey realised that for ICANN to survive, the GAC had to be given more sway in the ICANN process, especially on highly sensitive subjects such as who gets to the run country-code top-level domains.

Various changes were made – some public, some pushed through without people noticing – which gave the GAC a more influential position in ICANN. So now, while the GAC is still “advisory” the Board is *obliged* to inform the GAC about any issues it thinks have a public policy element.

It is also *obliged* to listen to the GAC and its “advice”. And also *obliged* to inform the GAC if it doesn’t agree with its “advice”. There is also a mechanism in the bylaws for when the Board disagrees with GAC advice and plans to make a decision that goes against it. They agree to talk about it. The wording is pretty vague – you can see it in Article XI, 2.1j.

You would think this was pretty simple but what has happened is that the Board and GAC have been warily circling one another over how to structure this conversation and process because it will set a precedent for future disagreements.

Unfortunately the result so far – sparked by the controversial dot-xxx application – has been lots of posturing but no definitive decision on how to approach it.

Surreal

So we had a surreal discussion about what actually constituted “advice” from the GAC (that was in June last year). And then the GAC told the Board that it felt *everything it said* was advice. This was not accepted by the Board because some of the “advice” was ambiguous or just noting an issue – certainly not enough to have to force the Board to start a formal process if it didn’t agree with it. This whole process took months and months with no useful outcome yet.

And then the Board pondered whether its intended decision would actually break the advice. So it asked the GAC if it felt it did. And so on, back and forth, with each party trying to pressure the other to make the decision for it. Then we finally hit the point where the Board is going to go against GAC advice and so, under the bylaws, have to have a discussion about that with the GAC to see if there was any compromise that could be made.

And then we entered a whole other surreal conversation about that process. Did the Board have to have that discussion before it formally resolved on an issue? i.e. did it have to break GAC advice before having the conversation? That seems odd, so how does the Board signal to the GAC that it is *going* to break GAC advice?

Assuming that happens, how then do you structure the conversation between the Board and GAC? Is there an obligation on the Board to try to change things? Or can it just say “sorry, we don’t agree with you, see you later”? What exactly is that extra step intended to do? And does there need to be a formal recognition that that special discussion is going to happen?

Get on with it!

So, finally, what the hell does the sentence: “This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process” that was added to the (very limited) notes about the GAC-Board meeting actually mean?

It means that the GAC would appear to believe that the final discussion between Board and GAC before the Board does or does not break GAC advice need to be something formally acknowledged and scheduled (as opposed to just a part of an existing conversation).

It also states that the GAC will not consider the 28 Feb-1 Mar meeting in Brussels as being this formal discussion. The rumour is that many GAC members simply refused to turn up if ICANN tried to say this was the formal discussion, so ICANN backed down and added this to the announcement. And by adding it to the announcement, ICANN is also implicitly acknowledging that, yes, the final GAC-Board meeting does need to be formally acknowledged.

And what does *that* mean?

It means that if the Board and GAC don’t reach agreement in Brussels, the GAC still believes that it needs to be formally consulted again before the Board can make a final determination/resolution on the issues they are discussing i.e. the new gTLD program and dot-xxx.

So while many people were holding out hope that governments would feel under pressure to reach resolution in Brussels at this special meeting (because the Board would simply say ‘you’ve had your formal consultation, we disagree with you, we’re done’), it is now explicitly stated that is not the case.

And so the pressure is off governments, and as a result everyone expects the GAC will now *not* reach agreement with the Board, which means the conversation will move to San Francisco *and* the Board will *still* have to have another formal consultation with the GAC before it makes a decision.

So there you go. Anyone actually read this far? Well, you did ask.

I haven’t written for a while. There’s usually two reasons for that: either I have been horribly over-worked, or I need a break from the strange, incestuous and often bitter world of Internet policy and governance. In this case, unusually, it is both.

Here’s the big news from the world of Internet governance: some vague details of a meeting between the ICANN Board and governments, in the form of the Governmental Advisory Committee (GAC), have emerged. But adding concern to the general vagueness is the inclusion of precise wording that means something specific, although no one is quite sure what. It is this:

This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.

This wording is indecipherable to any but the greatest of insiders. And that fact, combined with the reality that this Board-GAC meeting is one of the most significant Internet governance meetings in the past five years, makes it all the more frustrating. Despite the global impact, and the open processes, and the much-vaunted bottom-up multi-stakeholder model, here is a very, very small group of people making crucial decisions about the future of the Internet and they are using arcane and indecipherable terminology in order to keep everyone else out.

[But if you *really* want to know what it means, read this post.]

This unprecedented GAC-Board meeting (and it is increasingly more GAC-Board than Board-GAC) was the result of a fudge devised in short order in an effort to overcome a short-term problem at the recent ICANN meeting in Cartagena. It is the latest in a long line of short-term fudges stretching back years, none of which ICANN has any reason to be proud of and which, I would argue, have created a very dangerous culture of bypass over resolution.

The fudge was intended to avoid a confrontation between the ICANN Board and governments over two key issues: the approval of rules to open up the top-level of the Internet’s naming systems; and approval of the controversial dot-xxx application, which openly seeks to provide space online exclusively for adult content.

Cramming

A new meeting just between the Board and GAC scheduled just two months later would discuss these issues with an eye to resolving them before the next ICANN meeting in San Francisco in March, one month after that. But why bother to cram an entirely new and unprecedented process into a tiny two-month window? Because everyone is acutely aware of the frustration that exists around the seemingly endless delays over both the gTLD programme and the dot-xxx application.

However, in trying to move forward quickly, and for the 100th time in ICANN’s tiny 10-year lifespan, both groups’ actions are now likely to delay things even longer and create even more tension and frustration. If an older, wiser institution were to tell ICANN anything, it would be this gem:

More haste, less speed.

Alternatively, it might be a little blunter and say “stop trying to be so bloody clever and get on with it”. The Board and staff think they are being clever, and the GAC thinks it’s being clever. The cleverness is so intoxicating that it’s all too easy to forget that the process has actually become quite idiotic.

The dot-xxx farce (yes, it has gone beyond “saga” and is now firmly in the “farce” camp) is a case in point. Neither the Board nor GAC really know what they are doing from one day to the next. There had to be a public comment period on the substance of course. And a comment period on the process steps that might be taken (which no one agreed with). And then discussions of the upshots of those comment periods. And then a discussion about what the Board was likely to do in response to those comment periods. And then a check whether that likely decision would break the GAC’s advice. And then a discussion about what to do if it did. And then the Board saying ‘we think we disagree with you, do you agree?’ And then a discussion saying ’so you agree we disagree with you. How do we find a way to agree to disagree’. And on and on and on. It would be funny if it wasn’t so appalling.

Of course if you are in the middle of it, this all seems a little frustrating, certainly, but logical and in the interests of the greater good. The larger reality however is quite different – a process has been created that when one looks back at it is so convoluted and erratic that it can never been used again. Rather than surveying the land and building a train line through the best topography, ICANN has instead hacked its way through the forest to the top of the hill and hacked its way back down again and now doesn’t have the foggiest idea where it started from. Or where it came from.

Gymnastics

ICANN can no longer adopt this haphazard, by-the-seat-of-its-pants approach. It is time it grew up. And that means *not* creating new processes out of thin air just because you don’t like where the currrent process is leading you. There is a reason why every significant decision-making body on the planet has procedures and rules that it sticks to even if they seem ridiculous at the time. It’s because they create something lasting, and something that doesn’t leave everyone, including its main actors, unsure about what it going to happen next and when resolution will be reached.

The new gTLD process has been so badly delayed by procedural gymnastics that the processes of other organisations are starting to look enticing by comparison. When you have no idea what is happening, and no control, and the process doesn’t even have the advantage of being fast, what exactly is the point of playing along?

These failed efforts at reaching decisions create a very much bigger problem though. Not only do they undermine confidence in the whole process but they create a culture where obfuscation, distrust, procedural games and misrepresentation of others becomes a norm that is then, perversely, defended.

We have a very damaged process of decision-making at the heart of the Internet governance, and a damaged community surrounding it that doesn’t quite know how things work and feel as though they have been sold a giant lie.

The feeling is that no matter what you do, or how much effort you put in, if either the Board or the GAC don’t like it, you are going precisely nowhere. And the procedural justifications that amount to little more than saying ‘not until I’m happy’ have been stacked so high that they are on the verge of toppling over.

Next steps

This is the reality: unless there is a change of heart or approach, ICANN will screw up yet another deadline and San Francisco will come and go and we will have more pointless comment periods and more tedious pow-wows.

When it is finally done all those involved will be so overcome with relief that they will delude themselves that they actually did a brilliant job given the toughness of the task. And so the hope that any lessons might be learnt will fade into a fog of ill-deserved mutual backslapping.

But the damage is there under the protective clothing of resolutions and communiques. I have spent the past six months creating a conference about new gTLDs that seeks to break free from this divisive and negative atmosphere and create a space for positive dialogue – the creation and sharing of knowledge and viewpoints.

I have been amazed and dismayed as frustration with ICANN occasionally gets thrown in .nxt’s direction. When the Board failed to approve the new gTLD program in Cartagena, a number of people started insisting – rather oddly if you think about it – that the .nxt conference also be put back. Not a chance, I said – the conference is designed to function entirely independently of ICANN’s (lack of) decisions. It is all about the business of new top-level domains, the changes coming, the new models, the new markets, the business environment that exists for new Internet extensions.

The reality is that 95 percent of the real gTLD market is going to remain entirely unaffected whether or not trademark lawyers get their rule changes, or governments don’t have to pay to object to applications. But the process has become so emotive that some have lost sight of the bigger picture. Every strike-out is a disaster; every home run is a victory for the noisy policy sports fans.

The same calls for .nxt to be postponed appeared again in the past few days when the news finally emerged that the GAC-Board meeting was likely to be a colossal waste of everyone’s time and possibly delay the new gTLD process even further. Someone even suggested that it be cancelled altogether – as if the whole future expansion of the Internet depended on a badly worded press release from ICANN (.nxt, incidentally, is still very much on and I have high hopes that it will remind everyone about the exciting opportunities that this name expansion creates).

This emotional response to ICANN’s work has been unusually high as long as I’ve known it but there comes a time when the community needs to ease off trying to force people to make decisions, take a couple of deep breaths and realise that there is always plenty else to do in the meantime.

If there had been more discussions in the past five years about where we were going, rather than fights over where we actually were, we may never have needed to have gone past version three of the Applicant Guidebook.

I’ve actually forgotten what the next one will be – version six?

A set of three documents filed in California Bankruptcy Court earlier this week reveal that the world’s most valuable domain name – Sex.com – has been sold for $13m, just one million dollars more than it was sold for back in January 2006.

The tale of Sex.com is a fascinating and complex one (I wrote a book about it), and never short of twists and turns. The most recent twist came earlier this year when the company that bought Sex.com from Gary Kremen in 2006 (for $12m plus $2m in stock and other options), Escom LLC, declared bankruptcy. Escom has been unable to make Sex.com sufficiently profitable and was overdue on interest and debt repayments.

This announcement was quickly followed by the news that Sex.com would be put up for public auction – the time, date and location and the need to be holding a cheque for $1 million to even be allowed in the room, were published. But then, one of the owners of Escom, Michael Mann, broke cover (Escom has always been purposefully cloaked in corporate law cloth) in order to prevent the auction going ahead.

After some more fighting, it was agreed in July that the Sex.com would be sold in a closed auction run by domain brokers Sedo.

That auction ended at the end of September but no news emerged, although Sedo did tell me that something had been agreed but they weren’t in a position to discuss it. Finally, a set of three documents provided to the Central District Court of California on Monday, put into the record on Tuesday and first noticed by Kevin Murphy/DomainIncite today outlined the sale of Sex.com by Escom to another strange corporation, Clover Holdings Ltd, based in Caribbean offshore tax haven St Vincent and Grenadines.

You can view all three documents here: 115 (details of the sale); 116 (legal request to speed up sale); and 117 (setting the date for a hearing on 27 October). I think I’ll attend the hearing.

Anyway, possibly the most interesting thing, apart from the peculiar behaviour of all parties yet again, is that the domain has gone up in price by only $1m in nearly five years.

• Does this mean that Gary Kremen got a great price back in 2006?
• Does it mean that the value of dot-coms, even Sex.com, is stabilising?
• Or does it mean that the buyers kept Escom down to the original price because they knew Escom had no real choice?

I’m not sure. I’ll give it some thought. My feeling is a bit of all of them, but mainly the last one.

Two very interesting things are happening today that may have an enormous impact on the Internet for many years to come.

First, the ICANN Board is meeting at a special two-day retreat in Trondheim, Norway, in an effort to finalise the rules for new Internet extensions. This process have been going on for more than five years – two years longer than was planned – and it appears that everyone is now tired of the back-and-forth and wants results. The hope is that the “Applicant Guidebook” will be formally approved at the ICANN meeting in Cartagena in December.

The second interesting thing is a letter [pdf] from the Governmental Advisory Committee (GAC) of ICANN to the Board giving very precise and useful comments about what it feels about some of the outstanding issues in the new rules. These letters are usually carefully timed and this is no exception – it appears the day before the Board retreat. It is also a fair assumption that the ICANN chairman and CEO and senior management already know much of what was in the letter and may have helped in its production.

So, here’s the big question: will the Board be able to make the decisions necessary for a fifth and final version of the Applicant Guidebook to be produced in time for the Cartagena meeting?

I’m an optimist, so I’m going to say Yes; I think they will be able to do it. Well, almost all of it, with the rest thrashed out in Cartagena. Here’s why and where I think the axe will come down.

Controversies

It is no mistake that the GAC letter covers every controversial aspect remaining, save one.

They are:

• Size of the program
• Economic impact of new extensions
• Vertical integration
• Trademark protection
• Geographic names
• ICANN’s efforts to make itself legally unaccountable
• Community TLDs and applications from developing countries

Size of the program

The previous two additions of new Internet extensions in 2000 and 2004 saw just seven new extensions each time. ICANN as an organisation is still worrying about what will happen if hundreds of new top-level domains appear at the same time.

There is some legitimacy in this concern, although much of it has been nannying and disingenuous. The GAC letter actually lays out a reasoned, albeit conservative case. It wants a “fast track” for non-controversial additions, as well as a limited release of new extensions. It also argues for a study of a limited number before others are released.

There has been a fair amount of work done on this issue of adding alot of new extensions to the Internet by the engineers that actually have to run the systems. Broadly their conclusion was: it can be done, but it’s going to be a struggle. Basically, the systems in place are not prepared for a massive influx of new extensions.

Now, they could be prepared – but it would require money and a huge amount of effort and, frankly, there isn’t that much willingness on the part of the technical community to put in huge resources just because ICANN has decided that’s what it wants to do. Especially when, with the stroke of a pen, ICANN could spread the introduction of new TLDs over a longer timeframe.

ICANN chairman Peter Dengate Thrush made some very interesting comments last week at the IGF in Vilnius that demonstrated a clear plan to keep the number of TLDs released over a given time. He said: “The total number that can be processed in any year is 200 or 300… a number that’s currently equal to or less than the current total number of TLDs. So we’re not talking about orders of magnitude changes we’re talking about in the first year possibly doubling the current TLD numbers. I don’t think that’s mass and I think people will be able to cope with that rate.”

Peter doesn’t make these comments lightly. And now the GAC is suggesting the same thing. So this is my first prediction:

The number of extensions added to the Internet will be limited to a certain number per year. The least controversial will be first in line.

Economic impact of new extensions

This has been a frequent complaint of those who have sought to delay the program for their own reasons. Again though, it comes with a fair amount of truth.

ICANN’s staff failed miserably by not requesting an economic analysis of the impact of new extensions on the market before the whole process kicked off. Instead, it was subsequently forced to keep ordering new economic studies, which were fudged, and so was then forced into ordering another. And so on.

Why the failure to think ahead?

• Because ICANN staff are very rarely allowed to think for themselves, and are in a constant state of reaction
• Because ICANN staff are policy wonks and managers. Five years ago there were zero business and market analysts, for whom an early economic study would have been an obvious step. I think there’s only two now (it should be 10)
• Because ICANN as a whole absolutely hates being told by anyone what the situation is. The Board, staff and community frequently (and rather arrogantly) dismiss the conclusions of experts. So there was no desire at all – until forced to – to hire someone to tell ICANN about the market it oversees. Even now, people that really have no idea what they are talking about attack the economic analyses that have been produced

The GAC wants the Board to use a limited fast-track subset to carry out an economic study. This is a pretty good idea. However the GAC also wants there to be no new extensions while that is going on, which is a less good idea.

Who knows where the Board – which is notoriously risk-averse – will fall on this. There would certainly be value in having a real, live economic analysis of new extensions. But any suggestions that this then delay the already heavily delayed process further is going to be met very unfavourably. So prediction number two:

An economic study will be commissioned into a subset of approved new extensions, although this will be used as feedback to the next round of new gTLDs, rather than as a stop-block in this round.

Vertical integration

This is the most fought-over aspect of the process, at least from the status quo side. And since the status quo provides ICANN with its funds, and is in a position to make life very difficult for the organisation, it is a serious issue.

In a nutshell, the current situation where registries (those running an Internet extension) and registrars (those selling domains under those extensions) are kept separate is rapidly becoming an outdated model. The clearest example is if Canon wants dot-canon, why on earth should it have to pay a third party in order to have a domain under its own extension?

Of course, those who currently benefit most from the status quo – the biggest registries and registrars – don’t want to see this situation change. But it has to. The question is really: how long can the situation be kept in place? And, more crucially for the Board this week: what do you put in its place instead? (See this comment below for additional clarification on the positions of registries and registrars.)

There was a long and tedious working group within ICANN that tried to come up with a solution to this but inevitably it failed miserably. It really does come down to the Board to step up on this occasion and make a decision. It did actually hire an expert to help find answers to this one – and the report was inevitably torn apart by the community. But that report remains the best guide for the Board at this stage.

The GAC suggests relaxing the rules and puts out there the idea that “community TLDs” be granted exemption. It also suggests that there be relaxation of the rules but that there be a regulator aspect draw up (and it advises, quite rightly, that ICANN actually ask regulators around the world for their thoughts).

The Board has to make a call on this one. I would love to think it will be brave, do what needs to be done, and simply weather the storm of protest from its most powerful members. But it won’t. The Board is too big and so there is always dissent which means courage is rarely forthcoming.

So what will it do? Go for the safe option. Prediction three:

Vertical integration rules will be lifted for small-scale community TLDs, the current rules maintained and a study commissioned to look at the issue (possibly tacked onto the economic study mentioned above), with its report used to inform the next round of gTLDs.

Trademark protection

Another significant issue. The IP lobby (standing for intellectual property rather than internet protocol) has been all over this. It was absolutely right to be worried when the first Applicant Guidebook appeared in 2008 – the protections for companies and their trademarks had been horribly overlooked.

Over time ICANN has tried to fix this issue. Unfortunately it botched the effort several times, most famously with the creation of the Implementation Recommendation Team (IRT) which ended up infuriating just about everyone. However, the IP lobby has been backing off in recent months and ICANN’s chairman also said last week that “the IP lawyers… have had their chance… and the intellectual property protection brought in place is with a delicate balance with everyone in the community not just with IP lawyers.” It helps that Peter is an IP lawyer himself.

So, what does the GAC suggest? It worries about the cost of defensive registrations (to which there really is no solution beyond the fact that companies will have to get used to the fact that the rules of the game have changed with the Internet and you can’t expect to claim control over everything). But also it says the Uniform Rapid Suspension System – which would allow companies to quickly bring down sites infringing their rights – is too unwieldy. It also wants trademarks rights extended slightly – so that if your mark is contained within a longer phrase you can also question it.

The solution to all this is actually not that hard – it’s just that everyone will complain vociferously no matter what the outcome is. Basically, trademark holders have to be given a way to take down a website quickly and cheaply if they can clearly prove their rights are being infringed. The hard part is to provide a sufficiently large stick at the other end to stop big companies from abusing this process.

In terms of the Board making a decision this week, they will probably feel obliged to give a little bit back to the GAC and the IP lobby – maybe pull out the most onerous requirement from the URS – and then simply say that they will get an outside expert to review the process in 12 months’ time. Get something in place and then watch to see what happens.

The important thing will be to make sure that the axe falls down in favour of the registrant – because big companies will make themselves heard plain enough if the system needs tightening, but it won’t be the case the other way around. Prediction four:

The current systems in place for protecting trademarks will go through, although with a tweak or two to make trademark holders lives slightly easier. If the Board is in the mood for reviews, it will order a review into the system in 12 months’ time.

Geographic names

This has been a real GAC bugbear – governments have been panicking / being greedy that names in their countries will sprout up everywhere and they will face all sorts of problems. It is also the one area where government can legitimately exercise their innate desire to have control over things.

The Board has consistently pushed back against this landgrab – and quite rightly. Because city TLDs are a very promising form of Internet expansion, and because business in particular sees the value of having a top-level domain for specific geographic locations.

The GAC stamps its foot again in its letter but appears to be recognising that it isn’t going to get what it wants and so has offered a way out: don’t charge us for objections, and allows us more time to review applications. The “don’t charge” is the hard part. With no charge, governments can simply fire objections left, right and center. If money is attached, there has to be a process and an approval process internally.

In terms of the ICANN Board making a decision, again this one takes courage. The Board has stood up to the GAC (well, actually it has pretended not to hear) on this before and could do so again. It may have to or it risks wiping out a really promising area of global competition.

The decision will be based on how much else contained in the GAC letter the Board feels it can accommodate. If the Board gives on a range of other things, it can afford to say no to the no-charge request. In fact, I can’t honestly see the Board agreeing to the no-charge as it would risk destabilising the whole process. So, predicition five:

The current rules surrounding geographic names will be retained, although governments may be granted extra time to review applications.

ICANN’s efforts to make itself legally unaccountable

This will be hotly debated but only because ICANN’s General Counsel will paint 1,000 different scenarios where not giving the organisation effective legal immunity will bringing ICANN crashing down around their ears.

The Board buys this argument every time – which is why ICANN has an Ombudsman with no power, a Reconsideration Committee that always realises it was right in the first place, and a Independent Review Process that is horribly burdensome and which the Board feels it can ignore anyway.

I would absolutely love it if the ICANN Board could finally recognise that its salvation and its legitimacy will stem from it having the confidence to stop constantly grant itself complete control over everything. But I don’t think the Board is there yet. It will still try to insist in the guidebook that people will have to sign something that recognises the Board is as infallible as the Pope (or, at least, you won’t try to get the law courts to say otherwise).

The wording will change but the Applicant Guidebook will continue to give the Board the final say in all matters – which will continue to undermine the organisation in the world’s eyes. Prediction six:

The wording in parts of the Guidebook will change but ultimately it will still grant the ICANN Board, under US California law, the absolute right of final decision and reduce as far as humanely possible the right of people to go to court to dispute a Board decision.

Community TLDs and applications from developing countries

And, finally, efforts to actually get new Internet extensions in the hands of people who aren’t extremely wealthy, powerful and based in the West.

The constant refrain for ICANN to think about developing countries and community TLDs stems from the classic situation where a process is distorted by those who shout loudest and have the most money to spend on people who shout loudly. Plus, with ICANN being based in the US, and with a US mindset, the solution to problems has consistently been financial. If there is an issue here, just raise the cost of it, squeeze out the chancers.

Of course with high costs ($185,000 just for the application, don’t forget) you also squeeze out some of the really valuable uses of the Internet – allowing people to communicate.

Unfortunately, as any African leader will tell you with resignation, the powerless are always considered last. Everyone will agree that it is terrible and something needs to be done, but nothing will be. What will happen is that a significant percentage of the money set aside for communicating the gTLD program globally will be spent on telling people in developing countries about a process that they won’t be able to afford. It will achieve nothing but it will make everyone feel better. Prediction seven:

Developing countries will have more money spent on informing them about new gTLDs that they won’t be able to afford. Community TLDs will continue to have to live with a process that makes their lives harder than it needs to be because otherwise people fear that the system will be gamed by commercial interests.

And that is my summary of where we are and what I think the ICANN Board will do.

Ah yes, public morality

Of course the one area that is possibly most important that hasn’t been mentioned is the “public order and morality” discussions which are in an impossible state. Pull away all the language and basically ICANN is planning to decide what is to be banned in new Internet extensions.

The really big problem at this stage is that there are no decent models or suggestions out there. The GAC threw the wording out at the last minute in Brussels, then presented an alternative that was never going to work, and it was then left to a cross-community working group that created a dog’s breakfast of a report.

This is the one issue that may delay the new gTLD process at this stage – because there is no way the Board can agree on an approach in two days. This will be the big issue at the meeting in Cartagena and the ability to find a solution will be what pushes the process forward or stalls it further.

My feeling is that with the momentum behind getting this done and finally finished, and with the risk that careful compromises could start falling apart if there is further delay, the Board and community will come together in an indelicate fudge that everyone will hate but fortunately may never have to be used. Because, quite frankly, anyone that is willing to spend a small fortune on a purposefully offensive application is never going to get anywhere. It’s self-limiting.

Conclusion

I’m confident we may finally see this very long, and often tedious process finally come to an end. And the Board may come out of it with a renewed sense of confidence. I don’t expect there to be that many serious objections – even from the IP lobby. Everyone basically wants this done.

Plus of course, every one of the individuals on the Board wants to be able to say they were at ICANN when the gTLD process was finally approved. If they pull it off, it will be one hell of an emotional moment on 10 December.

By the way, if more than three of the seven predictions come true, I’ll be amazed.

The domain name system’s overseeing body, ICANN, will approve the controversial Internet extension dot-xxx, designed for online pornography, at its Board meeting tomorrow.

The pre-announcement came in an extraordinary statement read out at the start of the public forum at ICANN’s meeting in Brussels by the organization’s general counsel, John Jeffrey.

The statement said that the Board accepted the results of an independent review panel that the Board had made the wrong decision back in 2007 when it denied the application.

But then it went further to say it would approve dot-xxx, would enter into contract negotiations, and then refer that contract to the Governmental Advisory Committee to make sure they were happy with its contents, since they had raised concerns in the past.

The news caught the community by surprise, just as it was due to make its views known to the Board, but has so far been warmly welcomed by the community.

The decision should finally bring an end to five years of argument over dot-xxx that has threatened several times to descent into a lawsuit. Dot-xxx was originally just one of a number of “sponsored” top-level domain, and went through the usual evaluation steps, almost becoming a reality in 2005.

But then all hell broke loose. An adult industry organization in the United States, the Free Speech Coalition decided it wasn’t happy with the application, and then Christian groups also in the United States got on the bandwagon and used their honed lobbying skills to get all the way up to the White House and Bush administration. Public comment periods run by ICANN were swamped with comments, most complaining about pornography, and public forums were filled with conflict.

Amid a huge amount of lobbying, pressure and hushed conversation, the ICANN Board then decided to deny the dot-xxx application on the grounds that it hadn’t met its sponsorship requirement.

Needless to say, the dot-xxx applicant, ICM Registry, wasn’t very happy about the decision and filed an appeal through ICANN’s Independent Review Process. Two years later, the review panel stated quite clearly that the Board had made the wrong decision.

It was very unclear what the Board would actually do with that external criticism, especially when first the CEO and then the ICANN staff publicly pointed to options that would allow them to effective ignore the review panel’s conclusions.

But the statement made a day before the Board meeting where dot-xxx will now be approved appears to have put an end to what has been a damaging saga for the organization.

Of course ICM Registry and ICANN staff still need to thrash out a contract (it is already in its fourth iteration), and then Governmental Advisory Committee will have to give its consent, or at least not object to it. But at the moment these seem to be small hurdles (although I have to say I still don’t think there is any need to actually go to the GAC).

The really good news is, oddly enough, not that dot-xxx will be approved – it is, after all, just a top-level domain and there will be 500 of them coming next year. The good news is that ICANN’s Board has demonstrated clearly and precisely that it is willing to be held accountable and willing to overturn its own decisions when told it got them wrong. This is good news for the whole Internet.

This Friday, it looks as though the ICANN Board will follow the clear conclusions drawn by its independent review and approve dot-xxx.

Given the importance of the first use of the review process, the importance of the Board being seen to be accountable and the fact that the community was pretty unanimous in recent public comment, it is pretty much the only reasonable course of action.

The question then is: how do things move forward? The company behind dot-xxx, ICM Registry, has published what it thinks is the best approach, but in both pieces of work put before the Board by ICANN staff, has been the suggestion that the Board would need to go back to the GAC before making dot-xxx a reality.

The question is: why? Unfortunately, neither paper makes it particularly clear. As far as I can determine, not only is there no need to go back to the GAC over dot-xxx but it also unlikely to serve any real purpose, and it may even put the GAC into a difficult position where it effectively approves a controversial top-level domain.

So what is the logic for why the Board needs to talk to a specific advisory committee before it makes a decision on its own independent review process?

According to the staff’s logic, this specific ICANN bylaw (Article XI, 2.1j) is the reason.

It says that when it comes to public policy issues, ICANN needs to take into account any GAC advice, and if the Board decides to do something that does not follow any advice the GAC has provided, it needs to explain why.

Here’s what I don’t understand though:

• The Board has already taken into account GAC advice
• The independent review has also already taken into account GAC advice
• Approving dot-xxx doesn’t break any of that advice

What’s more, it’s very unlikely that the GAC will have any other advice to give. It’s also easy to forget that the GAC has never said: don’t approve dot-xxx. Yes, it has said it wants the Board to explain why it approved the application, and yes it has pointed out that some of its members were opposed to dot-xxx but there’s a world of difference between the GAC expressing concerns and the ICANN Board effectively deferring to the GAC following a full ICANN process and an independent review.

Of course you as a reader probably have no recollection of what the GAC has *actually* said, so here is a rundown:

In November 2005, in Vancouver, the GAC said [pdf] that it was glad to have additional time to review the Evaluation Report for dot-xxx. (And that was it.)

In March 2006, in Wellington, it said [pdf] it wanted an explanation from the Board explaining its decision to approve dot-xxx, and it noted that the public interest benefits that ICM Registry had promised didn’t appear to be part of the registry agreement drawn up for dot-xxx (I’m pretty sure they have been pulled in since).

In February 2007, the GAC chair sent a letter [pdf] to ICANN’s chairman saying that the GAC wouldn’t have time to send a public response before the Lisbon meeting, and reiterating its message from Wellington.

And finally, in Lisbon in March 2007, it referred back [pdf] to its message in Wellington again and said it wanted more information from the Board than it had provided, and drew attention to a comment from one government that it was concerned ICANN could become a regulator under the terms of registry contract.

And that is the extent of advice the GAC has provided to the Board on dot-xxx. None of this means there is any reason that ICANN can’t start negotiating a final registry contract with dot-xxx and it certainly doesn’t point to any “potential violation” of the ICANN bylaws, as the staff paper has argued.

But minutiae aside, let’s look at the reality of the situation: if the GAC *is* asked by the Board to comment on dot-xxx, what can it say other than: we’ve already told you what we think?

What’s worse from the GAC perspective is that if the Board puts off negotiating a registry contract with dot-xxx until it gets back, the GAC could be put into the impossible position of effectively deciding whether a new top-level domain that has passed all the evaluation criteria *and* been through an independent review process should move ahead.

If the Board does insist on asking the GAC an empty question, is it going to be very difficult to paint it as any more than an unnecessary additional process in the approval of dot-xxx.

Everyone wants to put this issue to bed after years of process, and that means no additional processes.

The Board needs to be seen as not only accountable but responsive to its own independent review. I for one hope it puts an end to what has been a damaging six years for the organization as a whole and just says yes to dot-xxx on Friday. I’m sure the GAC will understand.

In the interests of full disclosure, I was hired by ICM Registry to write a summary and analysis of the recent public comment period on dot-xxx and I have also done some communications work for the company. Read into that what you will.

ICANN released the fourth version of its Applicant Guidebook this week. The process has been going on for so long with so many endless controversies and scandals, that those that actually want to apply for a new Internet extension have developed an amusing gallows humour.

I’ve just been sent a doctored version of a slide purporting to show the timeline for new gTLDs. It comes from a long-suffering wannabe applicant who has developed a new “Big Night Out, Morning After” model to explain ICANN’s policy and implementation processes.

Enjoy. (Click for larger version.)

I have spent the past week going through literally thousands of comments about whether there should be a new dot-xxx Internet extension for pornography. You won’t be surprised to hear it has brought out some strong feelings.

Anyway, the company behind the application, ICM Registry, hired me to write an objective summary of what was said. There were nearly 13,000 comments, which would have been impossible to read and analyse but, fortunately I suppose, more than 80 percent of them said the exact same thing. The majority of the remainder were also the result of no less than 10 online campaigns.

Not that it wasn’t exceptionally time-consuming to go through every one in an effort to extract common arguments and then summarise them. I did my absolute best to get the overall length down to something bearable but it still ended up at 45 pages. I suspect most people won’t get past the four-page Executive Summary, despite the inclusion of several pretty graphics to give the eyes a rest.

Anyway, I will let my week’s worth of work speak for itself. The whole glorious thing is below:

Report of Possible Process Options for Further Consideration of the ICM Application for the .XXX sTLD

Date opened: 26 March 2010
Date closed: 10 May 2010
Prepared by: Kieren McCarthy

Executive Summary

The comment period attracted a very high response from the ICANN community, the Internet community and the general public due to the nature of the topic. It also generated some press interest. The vast majority of responses arrived through organized online campaigns.

In overall terms, there was a clear split between those who wish the Board to accept all findings of the IRP Declaration (“option 1”) and those who want the Board to adopt the Declaration’s dissenting opinion (“option 3”). No respondents spoke in favour of “option 2” where the Board accepted in part and rejected in part the Declaration.

The main argument put forward by those supporting Option 1 was that ICANN has a duty to follow its independent review process and its credibility will be damaged if it were to reject the result of that process.

The main argument put forward by those supporting Option 3 was two-fold: first, that pornography itself is damaging and since the dot-xxx top-level domain is designed specifically for this sort of content, the Board should reject its creation; and second, that the dot-xxx applicant, ICM Registry, had not met the necessary sponsorship requirements for approval.

Affected Parties

Affected parties are taken to be: the dot-xxx applicant, ICM Registry; members of dot-xxx’s sponsored community; and members of the wider online adult entertainment industry.

ICM Registry argued that ICANN is obliged to follow “option 1” i.e. to accept the IRP Declaration in full. It also argued that option 1 itself includes a number of “unnecessary and inappropriate processes” which go against the Declaration, ICANN’s own bylaws and international law. It concluded that the only course open to ICANN is to enter into a registry agreement with it at the earliest opportunity.

This request for an expedited process in signing a dot-xxx registry agreement was also put forward by other affected parties, the majority of whom posted comments through an online campaign organized by ICM Registry.

At the same time, a significant number of affected parties took the opposite view: that the Board should choose “option 3” and reject the dot-xxx application, arguing that since they were potential members of the sponsoring community for dot-xxx but did not want the top-level domain, ipso facto ICM Registry did not meet the sponsorship criteria for approval.

The majority of the comments in favour of option 3 came in response to two online campaigns: one by the Free Speech Coalition (FSC), an Adult Entertainment Trade Association; and a second by the Adult Entertainment Broadcast Network (AEBN), an adult content provider with a large affiliate network and an FSC member.

ICANN’s Supporting Organization and Advisory Committees

The At Large Advisory Committee (ALAC) and Non Commercial Users Constituency (NCUC) supplied responses to the comment period.

ALAC

ALAC noted the thoroughness of the independent review process and requested that the Panel’s decision be taken into account. It also asked that the issue be dealt with swiftly and transparently, but did not explicitly advocate any of the options.

Two of ALAC’s Regional At Large Organizations (RALOs) submitted additional statements: APRALO (Asia Pacific) said the issue was one of “procedural justice” and that ICANN should follow its procedures; NARALO (North America) gave its support to “option 1” and said in addition that ICANN should approve the dot-xxx application “without further unwarranted process”.

NCUC

The NCUC argued that the Board should accept the Declaration in full and prepare to add dot-xxx to the Internet’s root. To do otherwise would “seriously undermine ICANN’s credibility and raise fundamental questions about its accountability mechanisms”.

It also argued that ICANN should “focus exclusively on compliance with its own appeals process” rather than consider the issues of content, free speech and censorship raised by other commenters.

External Parties

A very large number of comments were received, the vast majority through a number of online campaigns, both for and against the dot-xxx application. (See “Broader community and campaigns” for full details.) The campaigns were organized by the same three groups that have dominated dot-xxx public comment periods since 2004:

1. Pro-xxx.

Organized by the applicant ICM Registry and its sponsoring organization, IFFOR. A few hundred respondents representing both the general public and the adult industry presented a clear preference for “option 1” arguing that ICANN needed to follow its own independent review process. Many also argued for an expedited process in approving a contract for the dot-xxx top-level domain.

2. Anti-xxx.

Organized by the Free Speech Coalition (“the Adult Entertainment Trade Association”), and the Adult Entertainment Broadcast Network (AEBN), an adult content provider with a large affiliate network. A few hundred respondents within the adult content industry presented a clear preference for “option 3”. Many argued that the application did not have support of the adult industry and expressed concerns surrounding the running of a dot-xxx registry.

3. Anti-pornography

Organized by a number of Christian groups within the United States, including the American Family Association, Concerned Women for America, Women for Decency, Utah Coalition Against Pornography and PornHarms.com. More than 10,000 respondents asked for the rejection of the dot-xxx top-level domain, mostly out of concern for the moral impact of pornography on society.

Press interest

The nature of the public comment period provoked press interest, particularly in the technology press.

Articles regarding the comment period appeared in the following outlets (in no particular order): the BBC, The Register, Domain Name Wire, DomainIncite, The UWM Post, Tech.Blorge, WorldNetDaily, CircleID, PC Magazine, PC World, ZDNet, GeekSugar, Silicon Republic, V3.co.uk, The Domains, Xbiz, among others.

In general, the articles that expressed an opinion came down in favour of “option 1” and the approval of the dot-xxx application. This opinion was also largely reflected in comments to the articles from readers and in online polls.

Analysis and Conclusion

This comment period was characterized by a very large number of form-responses to active campaigns from a small number of organizations. This reflects ICANN’s experience with previous comment periods concerning the dot-xxx application.

Many of the arguments raised during the comment period have been raised in previous rounds by the same organizations. As such, they may be considered to have been addressed during the Independent Review Process itself and so form part of the IRP Declaration.

In particular, the Independent Review Panel specifically reviewed the two main arguments put forward by those opposed to dot-xxx, namely the moral nature of content that would be hosted on dot-xxx domains, and the question of whether the applicant had met the necessary sponsorship criteria.

The controversial nature of adult content has also drawn into the comment period many thousands of individuals who may have only limited knowledge of either ICANN or the issues at the heart of the process options paper put out to review.

Seen overall, there is a clear polarization of views between those who wish the ICANN Board to approve the dot-xxx application (as well as remove the additional processes included as part of “option 1”) and those who wish the Board to reject the dot-xxx application with finality.

The ICANN community itself has expressed a clear preference for the Board to accept the Independent Review Panel’s majority conclusions and react accordingly, swiftly and in a transparent manner.

SUMMARY/ANALYSIS

• Outline
• Summary of comments received
  • ICANN Supporting Organization and Advisory Committees
  • Affected Parties
  • ICANN and Internet community
  • Broader community and campaigns
• Key Arguments
  • Option 1 arguments
  • Option 3 arguments
• Responses by region
• Press
• ANALYSIS
• Campaigns

Outline of public comment period

The public comment was opened on 26 March 2010 in response to a Board resolution passed on 12 March 2010 at a public meeting of the Board in Nairobi, Kenya.

The Board directed ICANN’s CEO and General Counsel to produce a report of “possible process options” that would “enable the community to provide input on the Board processes” with respect to the application for a dot-xxx sponsored top-level domain.

The report was produced in response to a Declaration of ICANN’s Independent Review Process [pdf] concerning the dot-xxx application, published on 19 February 2010. This was the first use of ICANN’s final accountability mechanism.

The IRP process and Declaration

Between June 2008 and October 2009, the Independent Review Process considered the case put before it by the dot-xxx applicant, ICM Registry, that the ICANN Board has been wrong to reject its application in March 2007, having voted in June 2005 that its application had met all the review criteria.

In its Declaration, the three-member Panel ruled on five issues. All three panelists concluded first that their declaration was advisory and did not constitute a binding decision on ICANN.

Thereafter, two of the arbitrators (ICM Registry’s nominee, and the third panelist and Chair) found in ICM’s favor on each of the following four points:

• That the actions of the ICANN Board should be appraised by the Panel in an objective, rather than deferential, manner.
• That ICANN is required to operate with relevant general principles of law (such as “good faith”), including international law.
• That the ICANN Board found ICM Registry had met the relevant sponsorship criteria for dot-xxx when it voted to open contract negotiations with the company in June 2005.
• That the ICANN Board’s reconsideration of the sponsorship criteria (and subsequent rejection of the dot-xxx application) in March 2007 was not consistent with the organization’s own policies that it be neutral, objective and fair.

The third panelist, ICANN’s nominee, disagreed with the findings and expressed a dissenting opinion.

The process options paper

In response to the IRP Declaration, the Board asked ICANN’s General Counsel to provide a paper that outlined what the organization’s possible options were going forward.

That paper [pdf] offered three broad options: to accept the Declaration in full; to accept it in part; or to accept the dissenting opinion. These were termed options 1, 2 and 3 respectively.

In addition to these basic options, the paper also outlined a series of subsequent process steps. They were:

• A fresh review of the dot-xxx application under either the initial application criteria (the “2004 round criteria”), or the rules currently under development for new “generic” top-level domains (the “new gTLD criteria”)
• A fresh review of the advice supplied by ICANN’s Governmental Advisory Committee (GAC), whether that be the advice provided prior to the 2005 Board vote in favour of dot-xxx (“2005 GAC advice”); prior to the 2007 Board vote to reject the dot-xxx application (“2007 GAC advice”); or to seek new advice from the GAC
• Re-negotiation of the dot-xxx contract agreement based on the results of the two processes above
• Posting for public comment the results of the contract re-negotiation

It is the content of this paper that was put out to public comment for 45 days. Alongside the paper were included an Options Map [pdf] and an Evaluation Decision Process Map [pdf].

Summary of comments received

The comment period received an extremely large number of comments, the majority of them in the last few days of the comment period.

It is difficult to get a precise figure on the number of comments due to the quirks of the comment period software. However the figures below are based on comments that publicly appeared on the relevant web pages and were sent between 26 March 2010 and 10 May 2010, according to the comment system’s own clock.

The comment period received nearly 13,000 comments (12,757) between 26 March and 10 May 2010. Of those, 12,361 or 96.9 percent were the result of organized online campaigns that provided web forms with standard text and encouraged individuals to support their campaign by reposting the text into the comment period. (See “Broader community and campaigns” below for more information.)

There is evidence of some individuals posting repeated comments but given the overall number of responses, they are statistically irrelevant.

Discussion regarding relative weighting of comments received

The number and style of comments to the comment period pose a significant problem to ICANN if it wishes to accurately assess the mood of the broader community.

The vast majority of comment periods undertaken by ICANN, of which there are, on average, 10 per month, receive an average of just 15 comments. These low numbers typically represent a small-but-informed part of the ICANN community and are in response to papers that have limited appeal beyond that group.

For this reason, ICANN has never adequately addressed the issue of how to weight responses when a comment period draws a larger audience, and particularly if a comment period gains wide awareness or is the subject of focused campaigning by pressure groups.

It is an unfortunate truth that the more people aware of an issue, the less precise their understanding of the detail. This is certainly the case with a large proportion of the comments submitted to this comment period.

A very high percentage of comments (10,511 or 82 percent) relayed the same two paragraphs of text. That in itself is no indication that the respondents were not informed of the issue they were commenting on. However, in reviewing where the majority of comments came from, there appears to be only a single line of explanation to potential respondents, and one that is clearly misleading (“No enforcement regulation means amount of adult material will explode”).

Additionally, many responses (1,417 or 11 percent of the messages sent through the campaign form) appeared in the comment forum with the template’s subject line still intact — “(Please enter your own subject line)” –- a clear indication that little or no attention was given to the topic before the individual submitted his or her response.

Faced with this reality, it is clear that some kind of weighting system is needed to ensure that other, more considered, comments are given the necessary consideration.

There are two metrics that can provide some insight into the depth of understanding and value of response to email campaigns: degree of variability (high or low) in responses i.e. if individuals personalize their responses they demonstrate greater reflection; and depth and objectively of background material (high or low) provided to those encouraged to sign up to the campaign.

Assuming those broad-brush metrics for valuing online campaigns, how should one then compare those campaigns with the other comments sent in by individuals, or from members of the ICANN and Internet communities, or from the organization’s Supporting Organizations and Advisory Committees?

Online campaigning

Online form-based campaigns are, by their very nature, black-and-white and so poorly suited for the complex and multi-faceted work that ICANN typically undertakes.

Additionally, since ICANN is not an organization with a fixed, or even measurable community, the main metric arising from an online campaign – the number of people that have chosen to send the prescribed comment – does not have anything to compare itself against.

For example, it could be argued that the number of individuals affected by ICANN decisions includes every person online (currently 1.8 billion individuals). The reality is that ICANN’s public comment process, where contribution is open-ended and voluntary, is entirely unsuited to a referendum-style approach.

ICANN does have an institutional measure of agreement however: its Supporting Organizations (SOs) and Advisory Committees (ACs). These groups have been specifically designed to act as the representative voice for different stakeholders on the Internet and possess their own processes for gathering input and making statements. As such their input, if offered, should be weighted highly in a review of public comments.

That is not the same as saying input from outside the ACs and SOs should not be given significant consideration in a public comment process. The process itself ensures that the wider online community is in a position to flag any concerns they may have. And to do so in a simple and easy fashion. As such a public comment period serves as a useful external perspective for the organization.

The impact of such representation however should focus on the inherent logic of arguments made, rather than a measure of numbers behind any given viewpoint.

Weighting model

Taking these points into account, and accounting for the complexity of ICANN’s work given its global, multi-stakeholder nature, here is a suggested framework for weighting responses, starting with the highest weighted response and moving down to the lowest weighting.

HIGHEST WEIGHTING

• ICANN Supporting Organizations and Advisory Committees
• Affected parties (decided on a case-by-case basis)
• Members of the ICANN community (more aware of the issues)
• Members of the Internet community (more aware of the environment)
• Individual members of the public
• Online campaign (high variability of responses/high quality of background)
• Online campaign (low variability of responses/low quality of background)

LOWEST WEIGHTING

In addition, there are complimentary factors that need to be considered, including:

• Size of response
• Logic of argument
• Practicality/legality
• External perspective (media, politicians etc)

Adopting that weighting approach, here is a summary of comments received:

ICANN Supporting Organizations and Advisory Committees

One Supporting Organization and one Advisory Committee responded to the comment period.

NCUC

The Non Commercial Users Constituency (NCUC) response argues that the ICANN Board faces “a very simple choice”: accept that it made a mistake in handling the dot-xxx application, or refuse to do so.

It questions the value of the three options outlined in the paper out for comment, and in particular the additional process that would follow those options. There are only two options, the NCUC argues: accept the IRP Declaration and create the dot-xxx top-level domain, or not do so. The additional processes are “distractions”.

The NCUC expresses a clear preference for the Board accepting the IRP Declaration in full, stating that “anything less will raise serious doubts about ICANN’s accountability mechanisms and will undermine the legitimacy of the corporation and its processes”. It says it would be “deeply concerned” if the Board took a decision that ignored the IRP since it is one of ICANN’s few external accountability mechanisms, and the dot-xxx issue was the first use of the IRP.

It further argues that ICM Registry should be offered a contract using the same template as previously approve sTLDs, such as dot-mobi and dot-jobs.

It continues: not complying with the IRP would encourage settlement through litigation; an approach that would not be in the interests of ICANN or its global community.

The decision also has free speech implications, the NCUC states. ICANN should not reject the dot-xxx string simply because of the content that may be associated with it or ICANN’s approval of new top-level domains could “become a mechanism for content regulation or censorship”.

Finally, the NCUC suggests that the Board “look past the noise that will surely be generated by any public discussion that touches on pornography” and “focus exclusively on compliance with its own appeals process”.

ALAC

The At Large Advisory Committee (ALAC) response is foremost concerned with the transparency and accountability of the process. It notes “the considerable time taken in and thoroughness of the independent review” and asks that the independent review panel’s decision be “taken in account” in “an expedient, equitable, and defensible manner”. It adds that it would like to see the issue settled quickly and transparently.

In addition to the main ALAC statement, two of its five Regional At Large Organizations (RALOs) from Asia-Pacific and North American made individual statements.

APRALO said it felt the issues was one of procedural justice and argued that ICANN has to follow its own procedures. It noted however that it does not feel it is within its remit to support any specific top-level domain.

NARALO was more explicit with its support of “option 1”. It argued that “ICANN should just approve the request [for dot-xxx] without further unwarranted process”.

Affected parties

The comment period concerns a specific top-level domain. As a result, there is a clear case for considering the affected parties’ comments separately.

As the applicant for dot-xxx, ICM Registry is most significantly impacted by the options paper put forward. However, the future of dot-xxx also directly affects other groups, notably the “sponsoring community”, as well as those in the wider online adult entertainment industry.

ICM Registry provided an extensive response to the comment period, along with a graphic that reflected the Options and Process Maps provided within ICANN’s paper .

The response’s overall conclusion was that an expedited version of “option 1” where ICANN signs a registry agreement with the company as soon as possible, was the only option available to ICANN. All other options would result in “violations” of the IRP Declaration, ICANN Bylaws, ICANN Articles of Incorporation, Californian law or international law. The graphic supplied indicated how each of the other steps outlined in the paper’s maps caused a specific set of violations.

The response made a number of other points, including that ICM felt the paper had overlooked the main finding of the IRP Declaration: that ICANN had determined ICM’s application met all the necessary criteria in 2005 – specifically the sponsorship criteria – and that the 2007 Board decision to reject dot-xxx was a violation of ICANN’s own bylaws.

ICM was critical of the process steps subsequent to “option 1”, calling them “unnecessary and inappropriate” and saying they do not “derive even remotely from the Panel’s findings”. The paper supplied “no jurisprudential, procedural or policy-based rationale” for choosing “option 3” – where the dissenting opinion would be chosen over the majority decision.

The response warned that how the ICANN Board addressed the IRP Declaration would be scrutinized for years by policymakers, future TLD applicants and other Internet stakeholders. It also argued that the decision would send a clear signal about ICANN’s commitment to accountability.

To do anything but accept the IRP Declaration in full (“option one”) “would be at odds with the very objectives that led to the establishment of the Independent Review Process”, ICM argued.

ICM’s main point – that the ICANN Board should not only choose “option one” but also remove the suggested additional process steps and execute a registry agreement for dot-xxx as soon as possible – was also taken up by ICM’s sponsoring community.

A majority of the responses from the sponsoring community came through one of three campaigns organized by ICM Registry and its sponsoring organization IFFOR. See “” below for more information.

Arguing for “option 3” – and so against “option one” – from the affected parties was The Free Speech Coalition (FSC). The FSC is a US-based adult entertainment trade association.

Its response argues that the ICANN Board should choose “option 3”, rejecting the IRP Declaration’s majority view and adopted the dissenting view of the third panelist. It quotes the dissenting opinion in making its main argument that ICM “never satisfied the sponsorship requirements and criteria for a sponsored TLD”. It also argues that the Board’s rejection of dot-xxx in 2007 was decided “on the merits in an open and transparent forum”.

Part of the sponsorship requirement for sponsored top-level domains, the response argues, was that it “demonstrates broad-based support from the community it is intended to represent”. The FSC argues that ICM Registry “never engaged the actual community it professes to serve” and questions the validity of ICM’s claims that it has demonstrated community support.

The response also argues that the sponsoring organization, IFFOR, has a “disturbingly vague” selection process and worries that its influence will “not only damage the adult entertainment industry, but also stifle its expression”.

The FSC requests that if the ICANN Board does ultimately decide to go with either option 1 or 2 that it again review the sponsorship criteria for dot-xxx. It argues that the ICM application is “unworkable” as a sponsored top-level domain, and suggests that a generic top-level domain (which has different rules) would be more practical.

The FSC’s main point – that the ICANN Board should choose “option three” and reject the dot-xxx application because it does meet the sponsorship criteria for an sTLD – was also taken up by the FSC’s members.

A majority of the responses from the adult entertainment industry against dot-xxx came through one of three campaigns organized by the FSC. See “Broader community and campaigns” below for more information.

ICANN and Internet community

In this case, the approach used to identify members of the ICANN and/or Internet communities was: non-campaign comments from individuals or organizations that have previously commented on an ICANN public comment period that was not about dot-xxx.

The result was a range of comments that focused mostly on the options paper (rather than the broader issue of pornography) and in particular on the Independent Review Process that led to the creation of the paper.

There was near-universal agreement that the ICANN Board should adopt the full Declaration of the Independent Review Panel, and should approve a registry agreement with ICM Registry for the top-level domain dot-xxx as soon as possible.

Several commenters were critical of the additional process steps included in the process paper. They are “unnecessary”, “dilatory” and would involve “wasting the community and applicant’s resources”.

“What is at stake here, plainly and simply, is whether or not ICANN will adhere to the accountability framework that it had set up for itself.” (Steve Goldstein)

“ICM Registry has made it past a rigorous series of blockades, traps, and hazards erected which they have addressed to the satisfaction of the board or reviewing bodies on numerous occasion. Many of which seem to have been erected for no other purpose than the intention of perpetually tangling and delaying their introduction.” (Jothan Frakes)

“This IRP decision should not be, and cannot be, a referendum on pornography as some comments urge. This decision is only about ICANN’s accountability mechanism – its means of correcting its past mistakes, and in particular its mishandling of the .xxx domain name application.” (Robin Gross)

“Whatever due diligence process process still needs to be conducted, it should be based on the 2004 critieria and the 2004 materials submitted by the applicant. It would be nonsense from ICANN to to ask for new materials, given that all the loss of time and money is ICANN’s only responsibility, and that the applicant needs not to be even lore [sic] affected by this.” (Patrick Vande Walle)

“ICANN and ICM need to bury any ‘hatchets’ and move on to contract negotiation as soon as possible. Failure to do so will cost ICANN heavily, not only in financial terms, but also in relation to its position as an international organisation.” (Michele Neylon)

“Today, pornography (in all of its forms) pervades the Internet (on different many top-level domains) in large measure because ICANN has not approved ICM Registry’s application to manage the .XXX TLD.” (Ronald N. Andruff)

One commenter opposed to the approval of dot-xxx argued that ICANN should not be adding any new top-level domain to the Internet’s root.

Broader community and campaigns

Almost every comment received from outside the ICANN and Internet community arrived through one of 11 online campaigns.

Each campaign comprised a template response (some editable) that supporters were encouraged to send to ICANN. In some cases, sending required only an email address and clicking a button.

The 11 campaigns are directly attributable to three groups: dot-xxx applicant ICM Registry; US adult industry body The Free Speech Coalition; and Christian groups within the United States, organized by the proprietor of PornHarms.com, Patrick Trueman.

The latter two groups were also behind previous high-volume campaigns against the dot-xxx top-level domain in August 2005, April 2006 and January 2007, including over 50,000 emails sent directly to then-CEO Paul Twomey.

We will briefly address each group:

ICM Registry: As the applicant for dot-xxx, ICM Registry ran a simple online form (“Campaign G”) on its website encouraging people to “Tell ICANN to make the responsible choice” and support its main argument – that the ICANN Board should follow the results of its independent review.

The responses generated from this campaign appeared in the last week of the comment period, with a large number contained within a single email sent by ICM Registry on the last day of the comment period.

ICM also carried out a second, private, campaign (“Campaign K”) to those in the adult industry that had expressed their support for dot-xxx asking them to sign up to a differently worded form template.

It emailed all of those that had “pre-registered” dot-xxx domains since 2006 and made them aware of the campaign. And included a link to some background information on the independent review process. The responses to this campaign were provided in a single email on the last day of the comment period.

A third campaign (“Campaign H”) was carried out by ICM Registry’s sponsoring organization, IFFOR (International Foundation for Online Responsibility), on the front of its website aimed at the general public. It asked for people to support the labeling of adult content websites (a requirement of dot-xxx domains).

The responses generated from this campaign appeared in the last week of the comment period, with a large number contained within a single email sent by ICM Registry on the last day of the comment period.

The Free Speech Coalition, a trade association for the adult entertainment industry, ran its campaign (“Campaign D”) on the front page of its website as a “call to action” in “defeating ICM’s .XXX sTLD” and sent an email to all its members encouraging them to take part.

The campaign was aimed at demonstrating that a significant number of companies within the adult industry were not in favour of creating dot-xxx and that the ICANN Board was therefore right in rejecting the application previously because it does not have a sufficient “sponsoring community”.

Responses to the campaign appeared in the middle of the comment period. The campaign was then partly redrafted by one the FSC’s main backers, the Adult Entertainment Broadcast Network (AEBN), and emailed to all of AEBN’s affiliates (“Campaign F”) approximately one week after the initial FSC campaign.

The greatest number of organized campaigns and responses however came from Christian groups based in the United States, including the American Family Association, Concerned Women for America, Women for Decency and Utah Coalition Against Pornography, with each broadly organized by the proprietor of PornHarms.com, a former chief of the Child Exploitation and Obscenity Section of the US Department of Justice, Patrick Trueman.

An initial short-form campaign (“Campaign A”) against dot-xxx was launched a week into the comment period. At the same time, Mr Trueman posted a long response, subsequently reposted by others (“Campaign B”) and then reduced down to smaller form-postings (“Campaign C” and “Campaign E”) following a series of talks given by Mr Trueman in which he encouraged people to post comments against dot-xxx.

In the last week of the comment period, the campaign style moved away from the moral aspects of pornography and focused on specific options contained within the options paper. “Campaign I” argued the same point at the Free Speech Coalition (that ICM Registry had not fulfilled its sponsorship requirements) before effort was turned to a two-paragraph statement (“Campaign J”) that argued the ICANN Board should choose option 3 and adopt the dissent finding of the IRP Declaration.

That campaign note was sent out as a press release and by email to 2.4 million US citizens, and posted on the American Family Association website, causing a spike of several thousands form-comments for the last few days of the comment period.

Key arguments

Almost without exception, commenters presented a polarized choice for the ICANN Board’s next steps.

Despite the inclusion of three options, and a number of subsequent processes in the options paper, an overwhelming majority (99.8 percent of all comments) urged ICANN to take a definitive stance: either approve dot-xxx (as well as remove further processes), or reject dot-xxx outright.

Of those that choose “option 1” i.e. to approve dot-xxx, 98 percent requested that ICANN approve the contract as soon as possible, with 74 percent explicitly rejecting the additional process steps outlined in the options paper.

With such a clear split in opinion, this paper will therefore review the reasons put forward by each side in defense of their argument.

Option 1 arguments

The arguments put forward by those advocating “option 1” are represented graphically below (most comments made multiple arguments; any arguments put forward by fewer than one percent of respondents are not included).

Should follow Independent Review (77 percent)

Many respondents, particularly those within the ICANN community, argue that ICANN should feel itself obligated to follow the Independent Review Process fully or risk undermining confidence in it as an organization.

“A Board decision that ignores or circumvents the IRP decision would seriously undermine ICANN’s credibility and raise fundamental questions about its accountability mechanisms.” (NCUC)

“The independent review process did not happen overnight and was extremely thorough. If ICANN ignores its findings, then it will be very hard for many of us to respect ICANN as an organisation moving forward.” (Michele Neylon).

“The independent review panel decided that the 2007 Board decision was wrong. Unless ICANN has no respect at all for the decision of the IRP, the only way forward is to proceed with the negotiation of the registry agreement. ICANN should stop wasting the community and applicant’s resources on this procastrination [sic] exercise.” (Patrick Vande Walle)

“The independent review is the final accountability mechanism for ICANN that was devised by ICANN. If you do anything but accept the full results of that review, you are undermining the foundation of trust granted to ICANN by the Internet community.” (Campaign G, 170 responses)

“Accept the decision of the IRP and show the Internet community that ICANN does learn from its past mistakes and is capable of correcting them on its own and without further coercion.” (Robin Gross)

Labeling improve situation (26 percent)

As part of its proposal for running the dot-xxx registry, ICM Registry will require all dot-xxx domain owners to appropriately label their websites as containing adult material. According to a blog post on the company’s website, it intends to use a new W3C labeling specification called Powder to do so.

Currently there is no requirement on adult websites to label their sites. Required labeling would have positive knock-on effects for searching for and filtering adult content, say some commenters.

“Having a space on the Internet that is dedicated to this particular community would enable regulators to establish stricter guidelines on such content and allow for monitoring violations of those guidelines; both of which would lead to a much ‘cleaner’ and safer Internet for today’s users and those in the future.” (Ronald N. Andruff)

“It makes sense to classify adult sites in the .xxx domain. This would allow parents to block access to .xxx domains through their browsers, where only an unlock code set by the parents could re-establish access, and it would also allow internet service providers (ISPs) to block .xxx domains upon customer request.” (Dave Pounder)

“It will not reduce the number of sites on the internet that contain adult material [but] it will make it easier for administrators and responsible parents to filter these sites out from their home computers and protect those in their charge.” (Jonathan Stanton)

Other options break ICANN bylaws (13 percent)

In ICM Registry’s response to the comment period, it outlined a number of different sets of “violations” of ICANN’s bylaws, Articles of Incorporation, as well as international law if anything but “option 1” was followed .

This argument, as well as related arguments about ICANN being obliged to follow its own processes, were put forward by a number of commenters.

Other arguments

A number of other arguments for choosing option 1 were put forward, including:

• That dot-xxx would help protect children online
• That ICANN should look beyond the United States to the global Internet
• That ICANN is not a regulator of content and should not make decisions based on content
• That to reject dot-xxx would allow ICANN to act as a tool for censorship

Option 3 arguments

The arguments put forward by those advocating “option 3” are represented graphically below (most comments made multiple arguments; any arguments put forward by fewer than one percent of respondents not included).

Figures from the largest campaign (“Campaign J”) not included since it did not put forward an argument but simply stated that the IRP majority opinion was wrong.

More porn (39 percent)

Many commenters argued that the creation of a dot-xxx top-level domain would result in an increase in the amount of pornography available online.

“The establishment of a .XXX domain would increase, not decrease the spread of pornography on the Internet and thus cause even more harm and make ICANN complicit in that harm.” (Patrick Trueman)

“Pornographers would simply expand to .XXX and maintain their current .COM sites, perhaps doubling the number of porn sites and doubling their menace to society.” (Campaign C, 234 responses)

“This new domain would only increase the amount of pornography available on the Web, easing accessibility to hard core pornography to minors and adults alike.” (Campaign E, 524 responses)

“A .xxx domain would increase the amount of pornography on the internet and make it much more easily available.” (Nick Crowther)

Porn is damaging (38 percent)

Pornography has a damaging impact on society and individuals and can prove addictive, many of those in favour of “option 3” argued. A large number shared personal and professional insights into the negative impact pornography had had on their lives. Others put forward moral and religious arguments against pornography.

“Creating a .xxx domain is extremely harmful to the country. Pornography destroys people and simply creating a .xxx will not remove these sites from the .com and will create more problems. I have first hand witnessed the extremely destructive influence of this material.” (Adrian Bennett)

“Pornography is a widespread, ever-growing crisis, polluting the minds of its viewers and negatively changing attitudes towards women and children. Please do NOT participate in the destruction of marriages, the abuse of children, and the demise of our culture.” (Campaign E, 524 responses)

“Your descendants and mine, and our forefathers, would be so appalled…..this WAS NOT their intent in establishing the Bill of Rights. Not to mention, our society would be violating the 7th and 10th Commandments from Sovereign God himself!!!” (Becky Bentley)

“I am a concern [sic] parent and grandmother I strongly oppose the creation or expansion of any domain that promotes pornography. Emotional and psichological [sic] harm has been widely researched and daily we see the consequences in news. Rape and sex related crimes are higher than ever do the easy exposure to sex.” (Anna Cruz)

False sense of safety (35 percent)

The creation of a dot-xxx top-level domain may lead parents to believe that their children cannot access pornography elsewhere on the Internet, such as at dot-com addresses, argued some commenters.

“The creation of a .xxx domain will make parents believe their children can not come across ‘pornography’ because there is an .xxx domain for this. This will endanger child safety giving a false sense of security as websites with adult content will stay out of it and people will be misled.” (Bianca)

“Neither ICANN nor the company urging the establishment of this new domain are arguing that the .XXX domain would clean up the .COM domain and require all pornographers to move to .XXX.” (Campaign C, 234 responses)

“Having a specific domain would tend to legitimise the internet pornography internet industry, but would not remove it from the .com domain, it could lure parents into a false sense of security as regards filtering just .xxx domains to block pornographic sites.” (Stephen Madden)

.xxx will legitimize porn (25 percent)

The creation of a specific top-level domain for adult content would provide online legitimacy to damaging material, many commenters argued.

“I strongly encourage you not to create a dot-xxx domain for pornography. It would only serve to legitimize it by giving pornography it’s own domain. I would prefer to see pornography stigmatized not encouraged!” (Gary & Monique Greer)

“I’d like to express my concern about the terrible outcome of this decision, which basically legitimize the porno industry because, this proposal will not protect children and families from Internet pornography and will likely lead to greater exposure, addiction and family breakdown.” (Luis Guzman)

“Establishment of a dot-xxx domain would only serve to legitimize porn and spread an already epidemic scourge within our culture, resulting in addictions, family breakdowns, sexual promiscuity, and its resultant destruction (physically and emotionally) of lives and relationships.” (Judy Nichols)

Labeling won’t protect (25 percent)

ICM Registry’s intention to require dot-xxx domains holders to label their websites as contained adult material will not prevent the appearance of adult material and could, conversely, make it easier for children (and adults) to find, argued many commenters.

“Since most families do not use effective filtering services, the .XXX domain would merely make hardcore pornography even easier to find for children seeking such material. Thus the argument that .XXX would benefit children by ‘cleaning up the Internet’ is without any basis in fact. (Patrick Trueman)

Will damage adult industry (13 percent)

Some in the adult industry argued against dot-xxx, saying it could damage their business by forcing them to buy dot-xxx domains to protect their brands and also open the door for regulation of their industry.

“As an affiliate program for the adult entertainment industry, my business’ foundation is internet based. If ICM’s application were granted and a .XXX sTLD were to be created it would negatively impact my business.” (Campaign F, 155 responses)

“The ONLY reason someone would want to own this extension would be to earn money from registration fees. The new extension would force owners of .com domains to purchase the .xxx extensions in an attempt to protect their brand.” (Richard Cohen)

Limit on free speech (12 percent)

Some in the adult industry – including the Free Speech Coalition (FSC) – believe that creating dot-xxx may later impinge on their free speech rights under the United States constitution if there are subsequent efforts to force adult content companies to only use dot-xxx domains. The issue of free speech is also raised in comments by those opposed to dot-xxx due to opposition of the adult industry, with many commenters arguing that free speech should not be used as a reason for approving dot-xxx.

“.xxx is the gateway to internet censorship and defies net neutrality.” (Necropolis Creations)

Idea only for profit (12 percent)

Both those opposed to pornography and adult industry commenters criticize the dot-xxx plan for profiting unfairly. In the case of pornography opponents, many believe that dot-xxx is making money immorally. The adult industry on the other hand is opposed to dot-xxx “cashing in” on the adult industry by charging a premium for domain names that they will need to purchase in order to protect their brands.

No support from industry (7 percent)

The main argument from the adult industry commenters against dot-xxx is that many in the industry itself do not support the creation of the top-level domain. As a result, many argue, dot-xxx does not meet the sponsorship requirements of the sTLD approval process.

“From the adult entertainment perspective, ICM has never engaged the actual community it professes to serve… ICM’s claims of support from the sponsorship community seem wholly self-generated and self-serving.” (Diane Duke)

“I ask that ICANN continue to consider the widespread opposition of the sponsored community in any further decisions concerning a .XXX sTLD.” (Campaign D, 104 responses)

“It is imperative that ICANN consider the widespread opposition from the adult entertainment community to a .XXX sTLD as it makes its decision.” (Campaign F, 155 responses)

“I am part of the adult online community (softcore) and I assure you we VIRTUALLY TO A MAN oppose .xxx. I cannot think of ANYONE who is actually in favor of it.” (James Treadwell)

“The .XXX sponsor, ICM, never satisfied the sponsorship requirements and criteria for a sponsored Top Level Domain.” (Campaign I, 132 responses)

Force porn into one space (1 percent)

There were concerns from both the adult industry commenters and anti-pornography Christian groups that dot-xxx would cause online pornography to be forced into a single space on the Internet. The adult industry expressed the concern that this would led to efforts to impose rules and legislation; some Christian commenters were concerned that it would cause people to believe that pornography was under control and so cause them to reduce their vigilance against it.

Other arguments

A number of other arguments for choosing option 3 were put forward, including:

• They couldn’t see the point in having a dot-xxx top-level domain, especially if it wasn’t compulsory for all online content to fit within it
• It could cause confusion
• A different name – such as .kids or .fam – would be more effective at protecting children from online pornography
• The plans for ICM Registry’s not-for-profit sponsoring organization IFFOR (which would draw up the policies for dot-xxx) are vague
• Adult websites already self-label
• It is not clear how ICM Registry will decide who is in the adult industry and who is not

Responses by region

Press

As with previous discussions over the dot-xxx application, there was some press interest in the comment period, mostly by the technology press.

Two types of articles appeared: one pointing out that pressure was growing on ICANN to approve dot-xxx after its had lost an independent review over its previous decision to reject the application; and a second asking a broader question over whether readers thought the new top-level domain would be a good idea.

Broadly the consensus from the press was that dot-xxx was coming and may even be a good idea.

The BBC quoted ICM Registry’s chairman as being frustrated with the process and said ICANN has been “delaying its vote” on the issue . Others were more aggressive. The Register suggested that ICANN was trying to “weasel its way out of approving the porn-only domain”; while Silicon Republic said the issue puts a “spotlight on ICANN’s accountability”.

CircleID published a highly critical post of ICANN in which the organization was accused of an “endless series of increasingly lame and unpersuasive justifications to excuse not following their own rules and process, and never admitting that’s what they’re doing” . Other stories in this vein were published by V3.co.uk, PC Magazine and The Domains.

Two outlets have closely followed the whole comment period. DomainIncite has written a range of stories including a delay in closing the forum, responses from the Free Speech Coalition, the campaigns directed by US Christian organizations, and ICM Registry’s responses to both; and adult industry news site Xbiz covered the Christian groups’ campaign, FSC’s campaign, ICM’s response and Patrick Trueman’s US tour.

Among the question-stories was Tech.blorge’s Should all porn be moved to .xxx domain? (Answer: Yes); GeekSugar’s poll Do You Agree With an .xxx Domain For Porn Sites? (Answer: 86 percent say Yes); ZDNet’s Should the Internet have a .XXX TLD for porn? (Answer: Yes); and Xbiz’s How much do you support .XXX? (Answer: 69 percent say ‘I love it and will buy .xxx domains’).

And finally there were the more decided articles Give Porn Its Place and The Web Doesn’t Need .xxx Porn Domain, which were for and against dot-xxx respectively.

Analysis

With such a large response rate (nearly 13,000 comments) it can be hard to make anything but broad generalizations about the input.

However, with 97 percent of responses coming from one of 11 online campaigns it becomes much easier to discern patterns.

What is clear from the comments is that the ICANN community, the affected parties and the larger external community all wish to bring the issue to a close after more than five years of debate and discussion.

A compromise option 2 received not a single vote of support. Likewise, 98 percent of those supporting “option 1” to accept the IRP Declaration in full stressed the desire to reach resolution quickly, with more than three-quarters explicitly rejecting additional procedural steps were the Board to go with that option.

ICM Registry argued forcefully that ICANN should approve a contract with it without further delay. As the prevailing party in a two-year review independent review process of its 2007 rejection, its position is understandable.

However, that position is restated by many in the ICANN community. The only two of ICANN’s Supporting Organization and Advisory Committees to put in formal responses sided with ICM Registry, with one stating bluntly that the Board should approve the dot-xxx contract as soon as possible.

Close followers of ICANN have also publicly stated that they feel the organization has to accept the IRP Declaration in full in order to demonstrate its commitment to the broader issue of accountability.

That view is not shared by some sections of the adult industry and by a number of US Christian groups who have campaigning vigorously for ICANN to drop all plans to create a dot-xxx top-level domain once and for all.

The same groups that sent thousands of emails to the previous comment periods covering dot-xxx have repeated their call for the ICANN Board to:

a) consider the moral implications of approving a piece of online real estate designed specifically for pornography, and
b) recognize that a significant proportion of what should be dot-xxx’s customers base are opposed to its creation

The fact that this latest comment period is the largest in ICANN’s history, it is difficult to ignore the reality that a very large number of people have felt sufficiently compelled to inform ICANN that they feel the organization is making a mistake. Although how much many of those respondents understand the complexities of the situation is debatable given the stock-responses, small timeframe and campaign approach taken.

While weighing the impact of numbers, it may also be worth considering the existence of an online cause that promotes the idea of a dot-xxx top-level domain. The “Petition to change porn sites to have a dot-xxx URL address ending to protect children” has over 290,000 members.

The commitment and views of those opposing dot-xxx are beyond question. However, from the procedural perspective there remains the fact that these same views were raised years earlier and contributed to a decision by the ICANN Board to reject the dot-xxx application in 2007.

That decision was questioned through ICANN’s own independent review process, and itself rejected by a majority decision in February this year.

In that respect, complaints previously leveled at the dot-xxx application may be considered to have formed part of the Independent Review Process itself. And while they no doubt continue to resonate with the groups involved, ICANN as an organization has already considered them twice over.

CAMPAIGNS

The text of the 11 online campaigns, along with response rate and relevant notes on each are reproduced in the pages below.

A graphic showing the number of responses to each is also supplied.

Campaign A

Variability: HIGH
Background: LOW

Notes: Organized by Patrick Trueman (see “Campaign B”). Frequent variations but on the same theme – the moral aspect of pornography
Response: 123

ICANN Options:

I have a concern regarding this proposal, it will not protect children and families from Internet pornography and will likely lead to greater exposure, addiction and family breakdown. Please do not considering establishing a “dot-xxx” domain for pornography.

Campaign B

Variability: LOW
Background: HIGH
Notes: A reposting of the submission from Patrick Trueman with first-person references removed
Response: 10

Dear Members of the Board of ICANN:

6.) If somehow all porn sites providing obscene material would actually leave the .COM Domain for the .XXX Domain, they would STILL be violating U.S. obscenity law which prohibits such material on the Internet regardless of location. We don’t want the Department of Justice to say to illegal porn companies, in effect, that it is okay to violate U.S. law as long as you do it on .XXX. Men, women, and children are becoming addicted to pornography and I believe the rates of addiction are skyrocketing – this is a virtually untreated pandemic. Many who begin by viewing adult pornography deviate down to harder and harder material as they continue a steady consumption of material and many of these will deviate down to the point that they only become excited by child pornography. This is a significant factor in the growth of child pornography on the Internet. Countless marriages are breaking up because of pornography use. Violence against women, which is depicted in most porn films, is changing male attitudes toward girls and women in a very negative way. A more appropriate goal should be to STOP the distribution of this destructive material by prosecuting those responsible for it, NOT protect pornography on the .XXX domain.

Campaign C

Variability: LOW
Background: LOW
Notes: Short version of Patrick Trueman submission (see “Campaign B”). All from Illinois, United States.
Response: 234

Members of the Board

Please do not create a .XXX domain.

Campaign D

Variability: LOW
Background: HIGH
Notes: Campaign by the Free Speech Coalition, an Adult Entertainment Trade Association.
Response: 104

I am a member of the adult entertainment industry. I support Option # 3 of the March 26, 2010 process options submitted by ICANN for public comment.

Regardless of the option chosen, I ask that ICANN continue to consider the widespread opposition of the sponsored community in any further decisions concerning a .XXX sTLD.

Campaign E

Variability: LOW
Background: LOW
Response: 524
Notes: Based on Patrick Trueman submission (see “Campaign B”). All from Illinois, United States.

I am writing to urge you to kill the proposal of the .XXX domain.

Again, please kill the proposal of the .XXX domain.

Campaign F

Variability: HIGH
Background: HIGH
Notes: Email campaign by the Adult Entertainment Broadcast Network (AEBN) sent out to all its affiliates, based on previous campaign by Free Speech Coalition (“Campaign D”). Some variation and expansion on specific points.
Response: 155

As an affiliate program for the adult entertainment industry, my business’ foundation is internet based. If ICM’s application were granted and a .XXX sTLD were to be created it would negatively impact my business.

It is imperative that ICANN consider the widespread opposition from the adult entertainment community to a .XXX sTLD as it makes its decision. For that reason, I support Option # 3 of the March 26, 2010 process options submitted by ICANN for public comment.

Campaign G

Variability: LOW
Background: HIGH
Notes: Organized by dot-xxx applicant, ICM Registry.
Response: 170

Dear ICANN,

Make the responsible choice by approving .xxx now.

Campaign H

Variability: LOW
Background: LOW
Notes: Campaign organized by IFFOR, the dot-xxx sponsoring organization
Response: 147

Please approve the contract for a dot-xxx top-level domain.

I urge you to make the right decision and approve its contract as soon as possible.

Campaign I

Variability: LOW
Background: LOW
Notes: A campaign not by the adult industry but by Christian groups – see Campaigns A, B and C above.
Response: 132

To Whom It May Concern:

The .COM domain should be a porn free domain if an .XXX domain were to ever exist.

Campaign J

Variability: LOW
Background: LOW
Notes: Sent through Christian News Wire and the American Family Association. Organized by same groups behind Campaigns A, B, C, E and I.
Response: 10,511

I support Option #3 of the March 26, 2010 process options submitted by ICANN for public comment.

ICANN should vote to adopt the dissenting opinion of the Panel’s Declaration on the basis that the Board thinks that the Panel’s majority opinion was wrong and that the Board’s conduct was consistent with ICANN’s Bylaws and Articles of Incorporation.

Campaign K

Variability: LOW
Background: HIGH
Notes: Private campaign run by dot-xxx applicant, ICM Registry, to members of its sponsorship community in the adult industry
Response: 245

Support for Option # 1

Therefore, ICANN has only one option if it wishes to preserve the integrity of its procedures and its long-term credibility as the manager of the DNS: immediately execute a registry agreement with ICM and allow ICM to proceed with the launch of the sTLD.