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Ombudsman trashes ICANN’s rejection of .gay “community”

Kevin Murphy, August 1, 2016, 09:50:51 (UTC), Domain Policy

ICANN’s outgoing Ombudsman fired a parting shot at his former employer last week with a scathing analysis of its rejection of .gay as a community gTLD.

ICANN should reject the decisions of two independent Economist Intelligence Unit panels, which found that Dotgay LLC’s application for .gay did not meet the strict definition of “community” under ICANN rules, LaHatte wrote.

“This is the time to recognise that even if the EIU evaluation did not achieve the appropriate number of points, that the community is real, does need protection and should be supported,” he wrote.

His recommendation appears on his personal blog, dated July 27, the same day his contract with ICANN expired. It has not appeared on the official ICANN Ombudsman blog.

The EIU is responsible for conducting Community Priority Evaluations for applicants who claim to be representing communities.

Its decisions have been unpredictable and to a degree inconsistent, but both times its panels looked at Dotgay’s .gay, they scored the application lower than the 14 out of 16 points required to pass the CPE.

Winning a CPE generally means you get the gTLD in question. Losing means you have to go to auction against competing applicants.

In the case of .gay, the other applicants are Top Level Design, Minds + Machines and Rightside.

Dotgay failed both times because its stated community — which includes straight people — does not match the string “gay”.

Nobody’s ever said that there’s no such thing as a gay community, they’ve just said there’s no such thing as a gay Community (big C) as defined by Dotgay LLC.

LaHatte’s recommendation does not delve into the nitty-gritty of the scoring process, but seems to criticize the system — and the flawed Request for Reconsideration system Dotgay has thrice unsuccessfully invoked — as “inadequate”. He wrote:

The role of the ombudsman is to deal with issues of fairness, and this encompasses issues such as respect for diversity and support for all parts of our community. Sometimes the mechanisms which we have put together to resolve challenges are simply inadequate…

But the issue that I want to emphasise in this recommendation is that it has always been open to ICANN to reject an EIU recommendation, especially when public interest considerations are involved. What is needed is to take a bold approach and demonstrate to the ICANN community, but also much more widely, to the world of Internet users, that ICANN has a commitment to principles of international law (see Article IV of the Bylaws), including human rights, fairness, and transparency.

The board will be very aware of the human rights initiatives undertaken in the light of the IANA transition and the careful evaluation of the accountability processes. But sometimes it is necessary to take a view which evaluates whether the decision taken corresponds with the bylaws and articles of incorporation. That view should be that ICANN supports the gay community and recognises that there is a community which requires protection and recognition, which has been marginalized, threatened and attacked, and which should be considered a genuine community notwithstanding the EIU recommendation.

He’s basically calling on ICANN’s board to cast aside the rules and previous practice in this particular instance and instead make a political statement, in my reading of the recommendation.

I don’t think ICANN will do that.

On a couple of occasions when Dotgay has suffered an ICANN-induced setback in the past, ICANN has put out statements reminding everyone that there will be a .gay, they only question is who runs it.

Because Dotgay filed a community application, it would be obliged to make .gay a restricted space. Its application talks about registrants having to be approved as eligible before they register.

But it also would have the strictest measures in place to address homophobia and harassment — something the other applicants may, but have not formally committed, to implement.

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Comments (7)

  1. Richard Funden says:

    The thing is, as much as one might feel this applicant or community deserves to have their TLD, the TLD will be delegated regardless.

    Granting the CPE exception despite the applicant not having scored the necessary points will on the other hand lead to the remaining applicants to be aggrieved, as their rights to participate in a fair process would conceivably be impaired.

    And while they are not proposing the same community standards as the community applicant, who is to say they won’t be able to provide adequate services to the community as well?

    ICANN has decided on a process and for better or for worse, they should stick with it.

    Who knows, maybe the winning applicant will pull an Afilias and do the “.green” thing. I do not expect it, though…

  2. shelley says:

    According to ICANN, groups such as PFLAG are not part of our community. PFLAG–our heterosexual parents and families–people who have marched in gay pride parades and appeared at legislators doors for DECADES–the people who helped us legalize same-sex marriage–these people who have been at our sides every step of the way–they are not members of our community because ICANN says so? Who the hell do you people think you are?

    • Kevin Murphy says:

      I’ve marched in gay rights parades on more than one occasion. Am I a part of the gay community? How would that be verified and by whom?

      • shelley says:

        How was Michael Berkins designated as a member of the adult entertainment community? I would suggest that you use the same methodology.

        • Kevin Murphy says:

          I am. The .xxx “community” was a joke, created to exploit the the “sponsored TLD” rules in place at the time. The CPE system was designed precisely to stop that kind of thing happening again.

  3. shelley says:

    Oh, that’s just great. Because Stuart Lawley and Michael Berks are con men, ICANN won’t consider my mother to be an ally.

    • Kevin Murphy says:

      But your mother will still be able to register .gay domains, no matter who eventually wins.

      The main difference for her will be how easy it is to register one.

      If dotgay wins, she’ll need to find an Authentication Partner in order to obtain a Community Identifier Code — if she qualifies for one — before going through the normal registration process.

      If any of the other applicants win, she’ll just have to break out her credit card.

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