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The internet is about to get a lot gayer

Kevin Murphy, February 20, 2019, Domain Registries

Seven years after four companies applied for the .gay top-level domain, we finally have a winner.

Three applicants, including the community-driven bid that has been fighting ICANN for exclusive recognition for years, this week withdrew their applications, leaving Top Level Design the prevailing bidder.

Top Level Design is the Portland, Oregon registry that already runs .ink, .design and .wiki.

The withdrawing applicants are fellow portfolio registries Donuts and MMX, and community applicant dotgay LLC, which had been the main holdout preventing the contention set being resolved.

I do not yet know how the settlement was reached, but it smells very much like a private auction.

As a contention set only goes to auction with consent of all the applicants, it seems rather like it came about after dotgay finally threw in the towel.

dotgay was the only applicant to apply as a formal “community”, a special class of applicant under ICANN rules that gives a no-auction path to delegation if a rigorous set of tests can be surmounted.

Under dotgay’s plan, registrants would have to have been verified gay or gay-friendly before they could register a .gay domain, which never sat right with me.

The other applicants, Top Level Design included, all proposed open, unrestricted TLDs.

dotgay, which had huge amounts of support from gay rights groups, failed its Community Priority Evaluation in late 2014. The panel of Economist Intelligence Unit experts awarded it 10 out the 16 available points, short of the 14-point prevailing threshold.

Basically, the EIU said dotgay’s applicant wasn’t gay enough, largely because its definition of “gay” was considered overly broad, comprising the entire LGBTQIA+ community, including non-gay people.

After dotgay appealed, ICANN a few months later overturned the CPE ruling on a technicality.

A rerun of the CPE in October 2015 led to dotgay’s bid being awarded exactly the same failing score as a year earlier, leading to more dotgay appeals.

The .gay set was also held up by an ICANN investigation into the fairness of the CPE process as carried out by the EIU, which unsurprisingly found that everything was just hunky-dory.

The company in 2016 tried crowdfunding to raise $360,000 to fund its appeal, but after a few weeks had raised little more than a hundred bucks.

Since October 2017, dotgay has been in ICANN’s Cooperative Engagement Process, a form of negotiation designed to avert a formal, expensive, Independent Review Process appeal, and the contention set had been on hold.

The company evidently decided it made more sense to cut its losses by submitting to an auction it had little chance of winning, rather than spend six or seven figures on a lengthy IRP in which it had no guarantee of prevailing.

Top Level Design, in its application, says it wants to create “the most safe, secure, and prideful .gay TLD possible” and that it is largely targeting “gay and queer people as well as those individuals that are involved in supporting gay cultures, such as advocacy, outreach, and civil rights.”

But, let’s face it, there’s going to be a hell of a lot of porn in there too.

There’s no mention in the winning bid of any specific policies to counter the abuse, such as cyberbullying or overt homophobia, that .gay is very likely to attract.

Top Level Design is likely to take .gay to launch in the back end of the year.

The settlement of the contention set is also good news for two publicly traded London companies.

MMX presumably stands to get a one-off revenue boost (I’m guessing in seven figures) from losing another auction, while CentralNic, Top Level Design’s chosen back-end registry provider, will see the benefits on an ongoing basis.

ICANN strikes back at “offensive” .gay bidder

Kevin Murphy, March 7, 2018, Domain Policy

ICANN has responded harshly to claims that a probe of its handling of applications for the .gay gTLD was fixed from the outset.

Writing to dotgay LLC lawyer Arif Ali this week, ICANN lawyer Kate Wallace said claims that the investigation “had a pre-determined outcome in mind” were “as offensive as they are baseless”.

FTI Consulting gave ICANN the all-clear in January, dismissing allegations that ICANN staff had interfered with Community Priority Evaluations of .gay and other gTLDs conducted by the Economist Intelligence Unit.

But dotgay quickly responded by calling the FTI report a “whitewash”, saying “a strong case could be made that the purported investigation was undertaken with a pre-determined outcome in mind.”

Now, in an unusually pointed letter (pdf) Wallace calls dotgay out for its “insulting” implications.

While dotgay LLC may have preferred a different evaluation process and may have desired a different outcome, that is not evidence that FTI undertook its investigation “with a pre-determined outcome in mind.”

Your accusations in this regard are as offensive as they are baseless. The Board initiated the CPE Process Review in its oversight role of the New gTLD Program to provide greater transparency into the CPE process. There was no pre-determined outcome in mind and FTI was never given any instruction that it was expected to come to one conclusion over another.

Your assertions that FTI would blatantly violate best investigative practices and compromise its integrity is insulting and without any support, and ICANN rejects them unequivocally.

Wallace works for ICANN outside counsel Jones Day — which contracted with FTI for the investigation — but states that she is writing at the behest of the ICANN board of directors.

The board “is in the process of considering the issues” raised by Ali and gay rights expert lawyer William Eskridge, she wrote.

The board’s agendas for next week’s ICANN 61 public meeting in Puerto Rico have not yet been published.

dotgay wants to avoid a costly (or lucrative) auction against other .gay applicants by gaining “community” status, but it failed its CPE in 2014, largely because its definition of “gay” over-stretches, and has been appealing the decision ever since.

dotgay lawyer insists it is gay enough for .gay gTLD

Kevin Murphy, February 6, 2018, Domain Policy

What do Airbnb, the Stonewall riots and the 2016 Orlando nightclub shooting have in common?

They’re all cited in a lengthy, somewhat compelling memo from a Yale law professor in support of dotgay LLC’s argument that it should be allowed to proceed with its .gay gTLD application unopposed by rival applicants.

The document (pdf), written by William Eskridge, who has decades of publications on gay rights under his belt, argues that dotgay’s Community Priority Evaluation and the subsequent review of that evaluation were both flawed.

At the crux of the dispute is whether the word “gay” can also be used to describe people who are transgender, intersex, and “allied” straight — dotgay says it can, but the Economist Intelligence Unit, which carried out the CPE, disagreed.

dotgay scored 10 out of 16 points on its CPE, four shy of a passing grade. An acceptance of dotgay’s definition of the “gay” community could have added 1 to 4 extra points to its score.

The company also lost a point due to an objection from a gay community center, despite otherwise broad support from gay-oriented organizations.

Eskridge spends quite a lot of time on the history of the word “gay”, from Gertrude Stein and Cary Grant using it as a wink-wink code-word in less-tolerant times, via the 1969 Stonewall riots, to today’s use in the media.

The argument gets a bit grisly when it is pointed out that some of the 49 people killed in the 2016 mass shooting at the Pulse nightclub in Orlando, Florida — routinely described as a “gay” club in the media — were either transgender or straight.

My research associates and I read dozens of press and Internet accounts of this then-unprecedented mass assault by a single person on American soil. Almost all of them described Pulse as a “gay bar,” the situs for the gay community. But, like the Stonewall thirty-seven years earlier, Pulse was a “gay bar” and a “gay community” that included lesbians, bisexual men and women, transgender persons, queer persons, and allies, as well as many gay men.

Eskridge argues that EIU erred by applying an overly strict definition of the applied-for string with dotgay, but not with successful community applicants for other strings.

For example, he argues, a manufacturer of facial scrubs would qualify for a “.spa” domain, and Airbnb and the Orient Express train line would qualify for “.hotel” domains under that applicant’s definition of its community, even though it could be argued that they do not fit into the narrow categories of “spas” and “hotels”.

Similarly, a transgender person may not consider themselves “gay” and a straight person certainly would not, but both might feel a part of the broader “gay community” when they get shot at a gay nightclub.

It’s an unpleasant way to frame the argument, but in my view it’s compelling nevertheless.

Eskridge also thinks that dotgay should have picked up an extra point or two in the part of the CPE dealing with community support.

It dropped one point there because the Q Center, a community center for LGBTQ people in Portland, Oregon, sent a letter objecting to the dotgay application (an objection apparently later revoked, then reinstated).

Eskridge spend some time questioning the Q Center’s bona fides as a big-enough organization to warrant costing dotgay a point, noting that it was the only member of a 200-strong umbrella organization, CenterLink, to object. CenterLink itself backed the bid.

He then goes on to cite articles seemingly showing that Q Center was in the midst of some kind of liberal paranoia meltdown — accused of racial insensibility and “transphobia” — and allegations of mismanagement at about the same time as it was objecting to dotgay’s application.

He also insinuates that Q’s base in Portland is suspicious because it’s also where rival applicant Top Level Design is based.

In summary, Eskridge reckons the EIU CPE and FTI Consulting’s subsequent investigation were both flimsy in their research, unfairly applying criteria to .gay that they did not apply to other strings, and that dotgay should have picked up enough points to pass the CPE.

It’s important to remember that this is not a case of ICANN getting decide whether the gTLD .gay gets to exist — it’s going to exist one way or the other — but rather whether the winning registry is selected by auction or not.

If dotgay wins either by getting another CPE or winning the auction then .gay will be restricted to only vetted members of the “gay” community. This could mean less homophobic abuse in .gay domains but probably also less opportunity for self expression.

If it goes to Top Level Design, MMX or Donuts, it will be open to all comers. That could increase cyber-bulling with .gay domains, but would remove barriers to entry to those who would otherwise be excluded from registering a domain.

ICANN has had .gay on hold for years while the dispute over the CPE has worked itself out, and it now has a piece of paper from FTI declaring the result hunky-dory. I doubt there’s any appetite to reopen old wounds.

My feeling is that we’re looking at an auction here.

CPE probe: “whitewash” or “fig leaf”?

Kevin Murphy, January 31, 2018, Domain Policy

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*

I wrote: “They’re gonna call this a whitewash.”

And I was correct! Ta-dah! I’m here all week.

The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.

In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.

Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.

Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.

During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.

After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.

FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.

The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.

ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.

It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.

The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.

That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.

* I didn’t actually do this of course, I just thought about it, but you get my point.

Spurned applicant crowd-funding to fight ICANN for .gay gTLD

Kevin Murphy, August 26, 2016, Domain Registries

The community-driven applicant for .gay is attempting to raise hundreds of thousands of dollars via crowd-funding to challenge a series of adverse decisions that look set to lock it out of running the gTLD.

Alongside the fundraising, dotgay LLC has launched an extraordinary broadside at its frustrators, accusing ICANN of “discrimination” and rival applicants of trying to “exploit” the gay community.

The company wants to raise $360,000 via this Generosity.com page, “to challenge decisions that have stalled community efforts for .GAY.”

Although the campaign has been running for 23 days, so far only three people (including a former employee) have donated a total of $110.

Given the vast number of LGBTQIA organizations that have lent their support to dotgay, I can only assume a lack of publicity is to blame for the $359,890 shortfall.

A five-minute video announcing the campaign has been on YouTube since August 3, but at time of writing has only been viewed 100 times.

In the video, embedded below, dotgay says that only it can properly represent the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Ally) community.

ICANN is dividing the community by accepting the Economist Intelligence Unit’s decision that the company should fail its Community Priority Evaluation (largely because the TQIA are not necessarily “gay”), the video voiceover suggests.

This is an old game that highlights how LGBTQIA continue to be disadvantaged and discriminated against. If .gay is not recognized as a community domain, ICANN will simply auction the namespace to the highest bidder and pocket the proceeds. If ICANN assigns to the right to operate the registry for .gay to a company seeking to exploit it for profit — very possibly without community participation in policy development for the domain, or taking into consideration LGBTQIA interests and concerns — the community will have no assurances .gay will be s safe space on the internet… In the end, ICANN and the three other applicants for the .gay domain have shown no respect for the global gay community’s wishes.

Neither the video not the crowdfunding page specify exactly what the $360,000 would be used for.

However, in order to challenge the CPE decision(s) against it, a lawsuit or an Independent Review Process — either of which could wind up costing over a million dollars — would be the most usual avenues of attack.

Perhaps eager to avoid the possibility of a legal challenge, the three other applicants — Minds + Machines, Rightside and Top Level Design — this week wrote to ICANN to demand a hasty resolution of the long-running saga.

Writing on behalf of all three, Rightside VP Statton Hammock wrote (pdf):

It has been more than FOUR years since the Applicants filed their applications for .GAY. Since this time long ago, dotGay has filed THREE community objections, one against each of the Applicants; TWO community priority applications, ONE Independent Review Panel request (later withdrawn) and ONE motion for reconsideration with the BGC which has been carefully considered by the members of that Committee and found insufficient to be granted. In total dotGay has had SIX “bites of the apple” and has been unsuccessful each time… It is simply time for the Board to affirm these decisions and allow the .GAY applications to proceed to contention set resolution.

The ICANN board had been due to consider dotgay’s latest Request for Reconsideration at at a meeting August 9, but the agenda item was removed, the letter notes. The applicants called on the board to meet again soon to make a decision.

After the board processes the RfR, .gay would presumably go to auction. Whether the auction resulted in ICANN pocketing the cash (as dotgay claims) or being distributed between the three losing applicants remains to be seen.

Whether the auction is public or private, the crowdfunding campaign strongly suggests that dotgay does not currently have the resources to win.