We will pursue this through the courts as necessary, ICM president Stuart Lawley told us. He’s invested years and millions of his own money trying to get the .xxx domain approved.
ICANN’s board of directors rejected .xxx with a 9 to 5 vote at a meeting in Lisbon, Portugal on Friday. Its president, Paul Twomey, who had helped negotiate the proposed contract, abstained. Chairman Vint Cerf voted to reject.
Lawley claimed that the two-year process leading up to the vote had been focused on hammering out the details of the contract under which .xxx would operate, and yet at the final hour many directors voted against it based on extra-contractual concerns.
We got them in a position where their excuses had run out on the contract and they had to take a deep breath and say we don’t want to do it for other reasons, Lawley said.
You can’t get away with wasting two years and $2m of somebody’s time and money negotiating a contract you have no intention of signing, he added.
As well as the relatively small fees paid to ICANN, ICM had recruited a number of high-profile attorneys to help fight its cause, including noted civil liberties lawyer Robert Corn-Revere and former US government official Becky Burr, who was closely involved in ICANN’s very creation in 1998.
Lawley is convinced that pressure from the US government following a letter-writing campaign by its right-wing religious supporters was responsible for the domain being rejected. He’s currently suing the government for access to documents he says will prove this.
I think that without US government interference in 2005, this would be a signed contract right now, he said.
In June 2005, ICANN voted to start negotiating a contract with ICM. To some observers it was implicit, but certainly not binding, that .xxx would ultimately be approved.
Later that summer, several American family groups with a heavily religious bent got wind of the proposal and started lobbying the US Department of Commerce, which oversees ICANN, to get .xxx killed.
Government emails released to ICM under the Freedom of Information Act show that Commerce took this right-wing outrage very seriously.
It does not appear on current evidence that the US government directly pressured ICANN’s directors, most of whom are not US citizens, to vote down the .xxx proposal. Lawley says that the US worked through ICANN’s Government Advisory Committee to stonewall and raise enough reasonable doubt to have it rejected.
That’s arguably what ICANN’s GAC is supposed to do — provide public policy feedback from international governments. Any pressuring that went on must have gone on between government representatives behind the closed doors of GAC meetings.
The GAC’s objections, which are over a year old and have been responded to by ICM on a number of occasions, comprised four of the five reasons that were entered into the record at the ICANN meeting for rejecting the .xxx proposal.
ICM’s response does not address the GAC’s concern for offensive content, and similarly avoids the GAC’s concern for the protection of vulnerable members of the community, the ICANN board resolved. The Board does not believe these public policy concerns can be credibly resolved with the mechanisms proposed by the applicant.
ICM’s proposal, while specifically not mandating that all adult content should be restricted to .xxx, did propose some level of oversight of the content that would end up on .xxx web sites.
The ICANN board resolved there are credible scenarios that lead to circumstances in which ICANN would be forced to assume an ongoing management and oversight role regarding Internet content, which is inconsistent with its technical mandate.
Lawley, at an airport having just arrived back in the US from Lisbon, was disconnected before he could elaborate on what kind of legal action ICM intends to take.
Our View
ICANN may not want to regulate content, but that’s exactly what it just did.
The .xxx domain was rejected because it was intended for porn. Other excuses are as disingenuous as they were poorly articulated.
Compare the rejection of .xxx to the approval of .mobi.
Several ICANN directors who voted to reject .xxx did so because they believed there were credible scenarios in which ICANN would be forced to answer for content regulation under .xxx, which is not its mission. Its mission is the technical stability of the DNS.
These same directors had no such concerns when unanimously approving .mobi, which proposed to regulate the content of a mobiles-only top-level domain. The .mobi domain was approved despite convincing arguments that it broke the spirit of the DNS by using top-level domains as protocol denominators.
Some directors voted against the .xxx domain because they were not convinced that ICM had met the ICANN definition of a sponsored TLD community.
According to ICANN’s 2003 request for proposals, a sponsored TLD community should address the needs and interests of a clearly defined community… Precisely defined, so it can readily be determined which persons or entities make up that community; and Comprised of persons that have needs and interests in common differentiated from those of the general global Internet community.
ICM’s community would have consisted of pornographers. A pretty distinct group of folk.
The .mobi community by contrast was restricted to everybody on the planet who owns a mobile phone — a higher percentage of the population of Earth than those who own a PC. The gated community of .mobi ergo has a potentially broader audience than .com.
Clearly, the excuses used to reject .xxx were not evenly applied to other newly introduced domains. The .xxx proposal was rejected, fundamentally, because it was for porn and because some people are uncomfortable with that kind of thing.
That all being said, several ICANN directors were clearly correct when they said that, in the real world, many would look to ICANN to enforce .xxx’s content policies, and that this would be a nightmare of epic proportions given the variety of pornography legislation around the world and the vehemence of the industry’s opponents.
But that still boils down to the fact that .xxx was rejected because it was for porn. ICANN made a decision to regulate content when it rejected .xxx, even if it pretends otherwise.
On the flipside, it should also be noted that .xxx was not and is not ICM’s birthright. Stuart Lawley is an entrepreneur businessman with no history in, and far from unanimous support from, the porn business. He and his company stood to gain financially from a .xxx approval. If it ever ends up on the internet, it will be a lucrative business.
ICM took an expensive gamble, investing millions in an ICANN process that so often appears arbitrary. It was a gamble that did not paid off. Not yet, anyway.
