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.

The ICANN Board has stuck discussion of the dot-xxx Internet extension on the agenda for its public meeting on 12 March – a good but brave move.

As covered last week, ICANN came off pretty badly following an independent review of the Board’s decision to reject dot-xxx back in 2007. A three-judge panel decided that the decision wasn’t justified and that the decision was “not consistent with the application of neutral, objective, and fair documented policy”.

This has lead the company behind dot-xxx, ICM Registry, to call on ICANN to sign the contract it had negotiated over the course of two years (2005-2007) and add dot-xxx to the Internet’s “root”. The Board agenda lists “Consideration of the Independent Review Panel Declaration ICM Registry v. ICANN” as one of its 11 topics for the public Board meeting.

This is a good move, and it’s the right move. But it is also a brave move because the dot-xxx controversy still creates a lot of heat and light in the ICANN community. The Board will effectively be deciding whether it agrees that an earlier incarnation of the Board got things wrong while sitting in exactly the same position, on the same stage, three years earlier. The community will want blood or some kind. And the Board will have to balance how to adequately deal with the criticism, while also appeasing both those who were strongly against dot-xxx (including governments) and those who feel that the Board did a major disservice to the organisation by ruling against dot-xxx.

As to the logistics of how the decision will be made: the Board meets for the afternoon (and sometimes the evening) on the Thursday before the Friday morning Board meeting to thrash out the issues in front of it. Usually this results in a unanimous or near-unanimous decision during the public meeting (sometimes criticised as producing a public meeting that is theatre).

However, when private Board discussion hits an impasse, it can sometimes spill over in the public meeting – the best example of which, ironically, was the dot-xxx decision made in March 2007.

It will be impossible to know whether the Board will be able to come to agreement on Thursday (although I suspect there are dozens of emails flying about right now between Board members trying to pin down specific aspects to discuss). If the Board doesn’t agree – and if the chairman and CEO keep to their promise to not keep the Board up until the early hours talking – then we could see the issue blow up on stage.

My prediction for what it’s worth: I think the Board will agree to move forward with the dot-xxx agreement but request a last round of contract negotiations. This would be the right, strong and brave thing to do.

Just as likely however is that the Board will refer to a GAC communique provided on Wednesday night requesting that more time be given to review dot-xxx, or some such diplomatic language, and so find a way of avoiding making a decision. Some will argue for caution (the world won’t end if the Board does not move forward on dot-xxx); and some will argue that the Board should act decisively.

It should be much easier to discern what will happen after the joint GAC/Board meeting late Tuesday afternoon.

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

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

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

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

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

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

Plan for top-level pornography domain gets reprieve

ICANN to reconsider .xxx denial

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

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

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

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

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

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

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

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

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

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

What was decided

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

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

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

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

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

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

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

Why the review is just as important as the decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well, Stuart Lawley won’t take no for any answer and .xxx has popped up on the ICANN agenda again, this time with such extraordinary controls and safeguards that it makes you wonder whether the business case is still there.

Contrary to common belief, the .xxx domain was never ruled out. In fact, because it had been officially approved by the ICANN Board before the US government, among others, went ballistic, the official line has always been that the contract drawn up wasn’t right.

And so ICM Registry has gone away and come back with yet more changes and yet more wording and concessions in a bid to get .xxx through. There is a lot in there and the wording is pretty uncompromising.

There are “obligations”. And those obligations include:

• Prohibiting child pornography
• Requiring clear content labelling by registrants
• Prohibiting consumer fraud
• Prohibiting spam

I mean, for god’s sake, just ask in order: any supplier of free storage; YouTube; eBay; and any ISP on the planet, to be obligated to provide each of these and they will laugh in your face. The Internet doesn’t work like that.

ICM Registry is also obliged to get third parties to check to monitor its own compliance (this is ICANN’s attempt to avoid becoming an Internet censor – something that would spell disaster); to let ICANN have 30-day approval of any changes ICM wants to make; provide reports; and to pay ICANN up front and in full. Oh, and to “reserve geographic and religiously/culturally sensitive names” – and that is going to mean the most enormous list of domains from the Arab-speaking world.

This is so restrictive that you have to wonder why Stuart Lawley is going through with it (I’ll email him and ask). I hope it isn’t out of some misplaced determination to get .xxx no matter what after he has fought so long and hard for what is, after all, in the cold light of day and in theory, a pretty good idea. How else is pornography – which is out of control on the Net – going to be contained?

ICANN is on a no-win rollercoaster here, as perhaps it always was. With such a controversial domain, the only solution is the one seemingly presented here: approve it, allow it to exist and watch it wither on the vine as the restrictions mean it is impossible to make any money.

I have a feeling that government representatives will recognise that situation all too clearly. It remains to be seen if there is a big fuss in the meantime however.

Update:

Stuart just got back. He reckons I’ve got it all arse-about-face. “Everything in the contract was originally in the proposal as submitted in March 2004 so nothing has changed. To check the whole list of xxx sites weekly or monthly for the presence of ICRA tag is a simple automated process and to have a compliance program for checking for child abuse images is also not a big problem. The costs for doing this were already factored in, hence the $60 registration fee.”

As for the business case: “Most certainly. Based on the feedback we have received over the last 4 years and based on the numbers we have taken as part of our ‘industry pre-reservation’ service we launched in late may, we will over achieve the forecast numbers prescribed in the original business plan submitted to ICANN as part of the original application by many many fold. I understand .mobi is around 300k registrations so far and I still stand confidently behind my forecast that xxx will be the most successful sTLD ever introduced by ICANN.”

So there you have it – ICM Registry is still sure it can work.

I’ve just got off the phone from an ICANN press conference with CEO Paul Twomey regarding the decision by ICANN to refuse the .xxx registry application.

And it has done little but confirm my already solid belief that the whole refusal was a poorly choreographed exit from a politically difficult situation.

Politically difficult for who? For the US government – thanks to a large pressure group of right-wing Christians with close ties to the US administration.

So what? A very small group of people in one country, with little understanding of the issues, has managed to bypass all the organisations and mechanisms in place and determine the future of the Internet (that global medium used by hundreds of millions of people).

Should I care? If you use the Internet (which you do because otherwise you couldn’t read this) then yes you do because the organisation that everyone has put their trust in to expand and oversee the future of the Internet for the good of mankind has shown that it can be manipulated 100 percent by one government for short-term political ends.

Mr Twomey denied this interference outright. Instead, he explained, there had been a large amount of public opinion against it; a big pornographer (Larry Flynt) didn’t like it [jpg]; and the UK government sent a letter saying it may hold ICANN responsible if anything went wrong with .xxx.

What Twomey said (just prior to the questions) was: “When it came to national laws relating to pornography there was going to be such a diversity there was some concern, according to the contract in front of them,  how could this be complied with.

“This concern was compounded, at least in some people’s minds, by the communcation from the United Kingdom government which made it clear that the UK government would consider that if the applicant registry could not force compliance then it expected ICANN to intervene and force compliance.”

What the letter says is: “It will be important for the integrity of ICANN’s position as final approving authority for the dot.xxx domain name, to be seen as able to intervene promptly and effectively if for any reason failure on the part of ICM in any of these fundamental safeguards becomes apparent.”

Claims that the decision was made because of US government interference were “unfounded and ignorant”, Twomey claimed. When it was pointed out the EU itself had stated this (spokesman for Viviane Reding, the European commissioner for information society and media, said: “We see here a first clear case of political interference in ICANN”), Twomey explained that was “ill-founded and surprising”.

ICM Registry’s request for the ICANN Board to vote on .xxx was apparently given the highest priority. But that respect appeared to diminish when no less than five letters were received in little more than a week before the vote on 10 May – all of which were subsequently used in Twomey’s justification for denying .xxx, and all of which arrived after ICM Registry’s request.

Why didn’t ICANN delay the vote – just as it has three times already? What are we to make of the literally hundreds of people on the ICANN public forum decrying .xxx? How did so many people know that .xxx was going to a vote so late in the day? And how come they are all from America?

What is this 48-hour delay in any of the Board members being allowed to talk publicly about the decision?

All this and more was asked at the press conference, and you can hear Paul Twomey’s response here, in a 26 minute 14 seconds excerpt [MP3, 10.5MB] of all the questions asked over .xxx.