Will ICANN On Now Approve .XXX? ICM Says Yes; ICANN Seems To Say No

As we wrote about over the weekend the independent panel that reviewed ICANN’s handling of the application of ICM Registry to run the .xxx registry, ruled that since ICANN voted to approve the application it should have allowed it to move forward without the additional review it understook.

So the question now becomes whether ICANN will follow the report of the panel and approve the ICM Registry’s application for the .xxx extension in its next meeting.

The ICM Registry believes it will be allowed to start registering.xxx domain names by the end of this year.

Stuart Lawley, chairman and president of ICM Registry, was quoted today as saying:

“We expect to execute a contract very soon [with ICANN] and .XXX names will be available by year’s end”

But if its blog post today is any indication, I would say ICANN is not about to vote this through.

On its blog ICANN writes today

“””On Friday (19 February), we received the Declaration of the Panel from the first ICANN Independent Review Process (IRP), which is posted here: http://www.icann.org/en/irp/icm-v-icann.htm.

“”This is a landmark step in ICANN’s use of the accountability mechanisms built into our bylaws. ICM’s initiation of the Independent Review process marks the first time the process has been used since its creation about six years ago.

“”The Declaration will now be reviewed and considered by the ICANN Board of Directors during its next meeting, pursuant to the ICANN Bylaws, Article IV, section 3.  The Board’s next meeting is scheduled to be held in Nairobi on March 12.

“”Here are some key points arising from Declaration:

  • The panel’s decision is not binding. It advised the ICANN Board to reconsider the .XXX gTLD at its next meeting.
  • This rejection of the .XXX gTLD, which generated the Declaration, is an extremely complex issue.
  • ICANN’s board voted down the .XXX gTLD on multiple grounds.
  • There was considerable public concern expressed against this particular gTLD, which can be found here: http://forum.icann.org/lists/xxx-comments/.
  • After this long history with the .XXX application, it will again land in the hands of the ICANN Board of Directors.

“””The IRP process was designed to enhance ICANN accountability and was approved by the ICANN board in 2003.  This first use is a testament to the enhanced accountability.  As a result of the IRP, the ICANN board will again consider the proposed .XXX top-level domain, despite the previous considerable stakeholder and public opposition to its approval.”””

Does this sound like a body that is leaning towards reversing its position and agreeing to issue the extension?

There is going to be an outcry from the registry community to approve the extension.

Actually there already is.

The vast majority of the comments on ICANN’s site are already urging them to follow their own rules and the recommendation of the Panel and grant the application of ICM.

However the tone of the blog post is clearly negative and from the sound of it I think ICANN will acknowledge its mistakes as outlined by the Panel, use the opportunity to clarify the rules and time lines for the new gTLD’s and try to tie this into the new gTLD process.

I do not think ICANN is going to do anything at this point to jeopardize the new extensions especially by approving the most controversial of all, in light of all the objections to it.

Finally I wonder what the current US administrations position on this extension is and whether ICANN will gauge that prior to its meeting next month.

Comments

  1. says

    I agree with you, Mike, I think .xxx won’t be approved.

    If you look at the folks who commented on ICANN’s blog in support of .xxx, many are pro-TLD advocates. Posts on the ICANN blog don’t outweigh the thousands of comments from 2007, and more importantly, the voices of the politicians, GAC and Department of Commerce. If ICANN actually did approve it, there’d be a high probability that the Department of Commerce would just refuse to enter it in the root zone file (as they approve all changes). See Step 7 of:

    http://www.iana.org/procedures/nameserver-change-procedures.html

  2. Steve M says

    Mike; you and George are correct.

    It ain’t gonna happen.

    Not in this century anyway.

    Maybe the DOC could just refuse to enter the apparent forthcoming ocean of new junk tlds in the root zone file as well.

  3. says

    ICA opposed ICANN approval of the .xxx contract — not because we opposed creation of a gTLD devoted to adult content (so long as it did not set a precedent for use of the DNS as a mandatory zoning scheme for Internet content that would require a vast content review and censorship bureaucracy) but because by the time ICM finished amending the proposed registry contract to try to overcome opposition its final text would have created many bad precedents for domain registrants. These included building a variety of fees into the annual registration price for “good cause” activities that, however laudable, had nothing to do with the operation of the registry and should not be foisted upon registrants.

    So there are two big questions here: Not just will ICANN now add .xxx to the root, but what are the terms of the contract between ICM and ICANN if that happens.?

  4. Cartoonz says

    Once again, Phil shines a light on the hidden dark side of this…
    My take on all that has transpired is a bit in the middle of the viewpoint of ICANN and that if ICM. It sure looks to me as if the “extension” was indeed approved in concept but the “contractual terms” needed to be worked through, which was the next and seemingly final stage.

    Now that Phil has illuminated a few of the unique issues that kept those contract terms from being agreed on, one has to wonder if ICM were to eliminate all but the bare minimum as far as weird clauses in the Registray contract and just move the extension forward through the process like any other gTLD at this point…

    After all, even ICANN is not really saying they did not approve of the extension, actually it seems they did… what they are saying is that they failed to negotiate a mutually agreeable contract… seems to me, that contract needs to be negotiated now for this to truly be over either way.

  5. Cartoonz says

    @George, as righteously altruistic as I’d like to believe my beloved DOC is… I’m seriously doubting that they are going to try to pull that sort of denial over a new gTLD once it has been blessed by the anointed fairy pixie Gods and minions of ICANN. First off, because this is a gTLD, not a ccTLD as referenced in your contractual link and secondly because if they did something like that, it would unleash the wrath of the rest of the world for gutting ICANN (although we’d all likely love to see that happen in some form or fashion, can I get an Amen!?) even though a good part of the rest of the world seems to be against it as well

  6. says

    Let’s remember that ICANN is not a U.S. government agency or an intergovernmental organization — it’s a non-profit California corporation. All its power is derived from contract — the IANA contract from the U.S. government to operate the authoritative root servers, and the contracts it enters into with registries and registrars. (Incredibly, it has no contractual relationship with, and hence limited power over, UDRP providers.)

    The key question is not whether the concept of an adult content domain will go forward — but what the registry contract provisions for that domain are and what precedents they set.

    The arbitration panel (in a decision it characterized as only advisory, not binding) found that ICANN had violated its own policy when it reconsidered its earlier decision that ICM had met the required sponsorship criteria and that it and ICM should therefore proceed to contract negotiation. I saw no determination by the panel that ICANN was bound to enter into a specific contract — and its report noted the concern of several ICANN Board members that the proposed contract would place ICANN in the inappropriate position of overseeing the policing of Internet content by a registry.

    So its not clear what ICANN is obligated to or will do now — paying for the arbitration costs is just the starting point, and even that is non-binding. What is clear is that any decision to proceed or not with a .xxx contract will be controversial, and that new gTLD applicants will be watching this process very closely as they consider risking their own capital on registries that may raise controversies of their own.

  7. says

    Cartoonz: The 2nd paragraph of the page I linked to say “gTLD changes have various minor differences based upon contractual relationships.” (there’s no other public document at IANA that I could find that lists the exact root server procedures; I’m assuming step 7 still holds, for all TLDs)

  8. Washingtonian says

    Will the DOC directly or indirectly intercede?
    Probably yes.

    The U.S. has 2 major elections coming up – 2010 and 2012.

    The republicans and the new tea party will spin it into a major issue if the Obama administration permits .xxx to go through.

    Was Obama involved in the decision? No.

    Facts or spin, the ‘right’ (moral majority?) will attempt to connect Obama to porn. And, they will also use it against Congressmen running for re-election.

    Is this reaching?
    Logically – yes. Polical reality – no.

    .xxx is going to boil down to politics in Washington.

  9. says

    I dug into my documents file for the comment letter that ICA filed on the .xxx contract. It was 20 pages long (!) and filed just over three years ago, on February 5, 2007. (BTW, I don’t get paid by the word — the letter was that long because the proposed contract raised so many difficult issues.) This was a revised contract that resulted from unpublicized backroom negotiations between ICANN and ICM after the ICANN Board rejected the original contract by a 9-5 vote in May 2006. Under it each any registration fee would have included a $10 charge to fund a non-profit organization that appeared to be under control of ICM, as well as for grants to third party anti-pron groups,with its purpose described as follows:

    ICM will donate $10 per year to fund IFFOR’s policy development activities and to provide financial support for the work of online safety organizations, child pornography hotlines, and to sponsor the development of tools and technology to promote child safety and child pornography.

    While child porn is detestable this pledge appeared to be little more than a sop designed to facilitate ICANN approval of the contract, since ICM had already pledged to police .xxx so that it contained no child porn would be available at any .xxx domain, and also considering that this type of illegal content is available through other TLDs. The issue here is not whether contributions to such groups (assuming they are legitimate) is a good thing, but whether domain registrants want to start paying “taxes” built into their registry fees for purposes that have nothing to do with the technical database authentication and security services being provided.

    The Executive Summary of ICA’s February 2006 follows. If this is the contract that ICANN must now consider approving then all the same issues have come back to the fore:

    The ICA takes no position on the general question of whether it is appropriate to authorize any specialized top level domain (TLD), including .XXX, with the intent and expectation that it host explicit adult sexual content. However, we would oppose any requirement that content of a particular nature, including sexual content, be hosted and located solely at specifically designated TLD. The DNS should not be utilized as a means of zoning the Internet for the purpose of segregating content of any nature, as any fiat to that effect inevitably involves registries in the classification and possible censorship of content, and also requires ICANN to stray far from its narrow and proper mission in order to enforce the operative provisions of registry agreements and overarching ICANN policies.

    For the reasons stated below, the ICA is firmly opposed to ICANN Board approval of the Revised Proposed Agreement (RPA) on .XXX, and urges the Board to reject it promptly and with finality.

    Executive Summary

    The ICA opposes approval of the Revised Proposed Agreement on .XXX because—
    1. The RPA would inevitably involve ICANN, through its enforcement authority and responsibility, in matters that lie far outside its narrow technical mission and are the proper province of national government and multinational law enforcement and consumer protection authorities.
    2. The RPA would set a number of extremely undesirable precedents, including–
    • Establishing registry-specific content restrictions that will authorize the registry operator to establish proprietary extralegal standards and to review and prohibit otherwise legal content.
    • Requiring registrants to involuntarily contribute, through a designated “tax” built into their registry fee, to specified public interest organizations based upon the nature of the content hosted at their domain name; as well as support third party monitoring activities that presume that registrants will not abide by their contractual obligations.
    • Establishing a registry-specific forum, outside of ICANN’s own internal structure for receiving input from interested parties, for the discussion and resolution of matters that are pervasive to most or all TLDs.
    3. The sponsoring organization for .XXX appears to be presently controlled by the registry proposing this new TLD – an entity standing to gain very substantial revenues if the RPA is approved — and there is no assurance that this sponsor will ever achieve sufficient independence, much less adequate participation from those parties who might utilize this new TLD. As a general matter, the approval of any sponsored TLD (sTLD) should be contingent upon a finding by ICANN that the sponsoring organization is a bona fide and independent entity at the time the TLD proposal is submitted for its consideration, and not merely a registry-controlled “shell” to be given substance at some later date; and that the proposed contract governing the relationship between the sponsor and registry operator be available to the community and Board prior to any Board vote on a proposed TLD.
    4. The process by which this RPA was negotiated and presented to the broad ICANN community once again, unfortunately, provides evidence that ICANN is in need of profound internal culture reform as regards transparency and accountability. The very fact that ICANN staff and .XXX proponents were in continuing discussions and negotiations following the Board’s 9 to 5 vote against the proposed .XXX agreement on May 10, 2006 was neither publicized by ICANN nor known by the interested Internet community – the existence of these ongoing proceedings was in fact opaque to and hidden from that community. At no time during these negotiations did ICANN seek any input from the community as regards the appropriateness of the significant precedents that the developing agreement would set, a failure in regard to both transparency and accountability. Additionally, the January 5th notice of the Revised Proposed Agreement fails to contain a single word of explanation as to why ICANN staff believe the provisions of the newly negotiated Appendix to the original agreement sufficiently address the concerns of the community that resulted in the Board’s rejection of that agreement by a nearly 2 to 1 margin. Nor is there a single word of recognition or discussion in the January 5th notice that the proposed Appendix contains numerous provisions that establish new precedents that could well migrate to other TLD registry agreements and would inevitably involve ICANN in areas far outside the scope of its narrow technical mission if it takes its contract enforcement responsibilities seriously. The ICA finds it inexplicable that ICANN would operate in such an opaque and unaccountable manner in regard to a registry proposal that had generated widespread criticism and debate as well as input from an unusually broad and diverse range of commentators both within and outside the general ICANN community. This failure is particularly incomprehensible given that the decision as to whether ICANN should be completely privatized at the conclusion of its current Memorandum of Understanding (MOU) with the U.S. Department of Commerce (DOC) in 2009 is contingent, first and foremost, on its achievement of greater transparency and accountability in its operations. We would respectfully suggest that, particularly during a period when ICANN is seeking to achieve full privatization, it should adhere strictly to its narrow technical responsibilities and should not be clandestinely negotiating revised agreements for controversial TLDs that would inevitably require substantial expansion of its staff (and substantial additional financial support from domain name registrants) for contract oversight and enforcement responsibilities regarding matters that fall far outside its intended mission and implicate powers and duties that properly belong to national governments and multilateral organizations.

  10. MHB says

    Phil

    I was not active in the ICA back in 2007 so thanks for catching me up to speed.

    Will the ICA be filing or re-filing its objections to the .xxx extension at or before the March 12 ICANN meeting?

  11. says

    Mike, whatever further steps ICA does or does not take on this matter will be up to its Board to decide.
    That said, it’s not clear yet to me what decision on .xxx will actually be before the ICANN Board when it meets in Nairobi. As I observed in my comment posted yesterday, my reading of the arbitration panel’s decision was that they determined that ICANN had improperly rejected ICM’s meeting of the sponsorship criteria that would have led to contract negotiations, but didn’t speak to the proposed contract itself.
    In any event, the only order from the panel to ICANN – which it concedes is only advisory in nature — is to pay ICM $242kto cover its expenses in the administrative proceeding. There is nothing in the order, advisory or otherwise, that says ICANN must enter into a .xxx contract with ICM. Given the controversy surrounding the proposal, the many issues raised by the rejected 2006 contract proposal, and the near proximity of the panel’s decision to the Nairobi meeting, I’d be very surprised to see any definitive decision on .xxx occur at the upcoming ICANN meeting.

  12. says

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