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Will .xxx be a slam dunk in Nairobi?

Kevin Murphy, March 3, 2010, 15:32:37 (UTC), Domain Registries

When .xxx appeared on the agenda (kinda) for ICANN’s Nairobi board meeting, it didn’t look to me like particularly spiriting news for ICM Registry.

The agenda item coyly reads “Consideration of the Independent Review Panel Declaration ICM Registry v. ICANN”.

This could quite be easily interpreted as a rather dry picking-over of the legal implications of the IRP’s findings; the board could still brush the ruling aside as “advisory” and hope Stuart Lawley isn’t waiting outside with a gang of armed Somali jihadis.

But after a closer reading of the IRP ruling (PDF), I’m beginning to be persuaded that .xxx might actually come to fruition.

Kieren McCarthy blogs that the decision to reopen .xxx is “brave”.

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

Kieren obviously has more hands-on experience with and knows more about the functioning of the board than me, but I’m not sure I agree with his choice of adjective.

Mainly, because I’m not convinced ICANN had any choice but to address the IRP findings. But also because the ruling is resplendent with language that would allow the current ICANN board to overrule its earlier incarnation without bringing shame on either.

The major issue the IRP had to decide was whether the board’s decision to enter into contract talks with ICM in June 2005 constituted an “approval” of the .xxx application similar to previous sTLD “approvals”.

If was an “approval”, then ICANN must have broken its own rules on equitable treatment when it subsequently questioned whether the application fulfilled the sponsorship criteria, which ultimately led to its rejection in 2007.

On the evidence, the IRP decided in ICM’s favour on both counts:

Fourth, the Board of ICANN in adopting its resolutions of June 1, 2005, found that the application of ICM Registry for the .XXX sTLD met the required sponsorship criteria.

Fifth, the Board’s reconsideration of that finding was not consistent with the application of neutral, objective and fair documented policy.

In other words: ICANN approved .xxx in 2005 and its reversal of that ruling in 2007 broke the rules.

It’s going to be quite hard for the current board to figure out a way how to avoid dealing with that conclusion. The fact that the ruling is only “advisory” seems to be its only wriggle room.

But the IRP does not, at any point in its ruling, question the integrity of the 2005 or 2007 boards, or suggest that anybody at ICANN ever acted inappropriately or knowingly outside the rules.

Here’s a few examples of its language:

…the Panel does not question the integrity of the ICANN Board’s disposition of the ICM Registry application, still less that of any of the Board’s members…

…majority of the Board appears to have believed that was acting appropriately in reconsidering the question of sponsorship…

…ICANN was bound to “duly take into account” the views of those governments. It is not at fault because it did so…

In fact, reading between the lines, the IRP describes a process stained not by ICM’s shadowy back-room conspiracies but by the fact that everybody involved, as usual, was operating in uncharted territory, weighted down by reams of well-intentioned rules and procedures that often appeared irreconcilable.

With this in mind, I think the board could simply thank the IRP for its help clarifying the matter and reopen talks with ICM. There may be no need to even admit it made a mistake, and nobody needs to lose political points.

There will be a scandal, that’s for sure.

Fox News will not be happy. Some pornographers will not be happy. But that will be short-lived and it very probably won’t cause the same kind of constitutional crisis at ICANN as it did a few years ago.

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