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ICM buys dotxxx.com for $25,000 and unveils new slogan

Kevin Murphy, November 4, 2010, Domain Sales

ICM Registry, the would-be .xxx registry operator, has acquired the domain name dotxxx.com from a Korean domainer for $25,000, to support an upcoming marketing campaign.

The company is also expected to unveil a punny new slogan, “Let’s be adult about it”, following its recent hiring of international ad agency M&C Saatchi.

The dotxxx.com domain currently redirects to icmregistry.com, the company’s main site. The private sale used Sedo for escrow.

Given the amount of cash ICM has spent attempting to get .xxx approved over the last ten years, $25,000 is a drop in the ocean.

ICANN recently decided to refer its application to the Governmental Advisory Committee for a consultation, before it makes a final call on whether to approve it or not.

.XXX debate could test GAC powers

Kevin Murphy, November 1, 2010, Domain Policy

The long-running .xxx top-level domain saga has tested ICANN processes to their limits over the last decade, and it looks like it may do so at least one more time.

Digging a little deeper into the board’s decision to consult with its Governmental Advisory Committee before approving the TLD, it looks like the discussion will be quite broad-based.

The .xxx consultation could in fact have consequences for the board/GAC power balance, helping define the parameters of their future interactions.

This PDF, published at the same time as last week’s board resolution on .xxx, outlines three GAC positions that could have a bearing on the matter.

The first is its communiqué from the Wellington meeting in 2007, which noted that several GAC members were “emphatically opposed” to the introduction of .xxx.

The GAC operates on a consensus basis. When it can’t find consensus, its communiqués also reflect minority positions. So ICANN now wants to know whether the Wellington letter constitutes GAC “advice”.

The question remains whether a position taken by “several members of the GAC” can be equated with GAC advice on public policy matters. If it is not GAC advice, then the concern of inconsistency [of the .xxx contract with GAC advice] diminishes.

Some may be surprised to discover that, after over a decade, there’s no broad agreement about when something the GAC says constitutes official “advice” that ICANN, under its bylaws, must consider.

Attendees to the Brussels meeting this June will recall that the joint board-GAC meeting, transcribed here, spent most of its time labouring on this apparent oversight.

In consulting with the GAC on .xxx, there’s an outside chance that some answers with regards the definition of “advice” may be found.

It wouldn’t be the first time ICM Registry’s controversial application has forced ICANN to address shortcomings in its own accountability procedures.

Notably, the Independent Review Process, promised in the bylaws for years, was eventually implemented to allow ICM’s appeal after it had pushed the Reconsideration Request process to its limit.

ICANN’s latest resolution on .xxx also refers to a letter (pdf) GAC chair Heather Dryden sent to the board in August, which expressed a desire that no “controversial” TLDs should be added to the root.

While ostensibly addressing future TLD applications, rather than TLDs applied for under previous rounds, the letter did say that “objection procedures should apply to all pending and future TLDs”, which was widely interpreted as referring directly to .xxx.

Last week’s ICANN board documents say:

If the “pending” TLD refers to .XXX, the approval of the .XXX sTLD Registry Agreement without allowing for these types of objections would be inconsistent with GAC advice.

I’ve reason to believe that the “pending” language may have been inserted quite late into the drafting of the Dryden letter, and may not enjoy the unanimous support of GAC members.

Regardless, the letter implies that whatever “morality and public order” or “Rec6” objections process winds up in the new TLD Applicant Guidebook should also apply, retroactively, to ICM.

If ICANN were to agree on this point, a precedent would presumably be set that would allow the GAC to issue thirteenth-hour “advice” that moves the goal-posts for future new TLD applicants, removing a significant amount of predictability from the process.

For that reason, I think it’s unlikely that ICM will be told it is subject to the Rec6 process (whatever that may ultimately look like).

The consultation, however, may result in some clarity around where the GAC’s powers of “advice” begin and end, which is probably a good thing.

Will .xxx be approved today?

Kevin Murphy, October 28, 2010, Domain Registries

Will the adults-only .xxx top-level domain be approved today, or will the hot potato be tossed to governments for a decision?

That’s the question facing ICANN’s board of directors, which is set to discuss the controversial TLD for the umpteenth time today.

The last resolution it passed on .xxx called for a public comment period, followed by a decision on whether the registry contract is compatible with old Governmental Advisory Committee advice.

With the comment period closed, it appears that all that remains is to decide whether a new GAC consultation is required before the contract can be approved or rejected.

Some opponents of .xxx are demanding a GAC consultation.

Diane Duke, director of porn trade group the Free Speech Coalition, wrote to ICANN this week, urging it to refer the application back to the GAC.

As Duke knows, many international governments are opposed to .xxx.

A week ago, Australia’s socially conservative, pro-censorship broadband minister, Stephen Conroy, also asked ICANN for another GAC consultation, expressing his “strong opposition” to the TLD due to its “lack of identified public benefit”.

And Conroy is surely not alone. There can be few governments that would be happy to be seen to endorse pornography, regardless of its legal status in their jurisdictions.

The GAC is firmly of the view that “controversial” TLDs present a risk to the global interoperability of the internet. The fear is that strings such as .xxx could lead to blocking at national borders and ultimately fragmentation of the DNS root.

Whichever decision ICANN makes today, it is sure to cause controversy one way or another.

Former ICANN chief speaks out against new TLD morality veto

Kevin Murphy, October 26, 2010, Domain Policy

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.

Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.

The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.

There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.

But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.

Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.

He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.

Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.

He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”

A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.

Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.

Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.

His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

US and Russia face off over ICANN veto power

Kevin Murphy, October 6, 2010, Domain Policy

The ruling body of the International Telecommunications Union this week kicked off a major policy-making meeting in Guadalajara, Mexico, and has already seen the US and Russia taking opposing stances over the future control of ICANN.

A group of former Soviet nations, chaired by the Russian Federation’s Minister of Communications, seems to have proposed that the ITU should give itself veto power over ICANN decisions.

A proposal filed by the Regional Commonwealth in the field of Communications (RCC) calls for the ICANN Governmental Advisory Committee to be scrapped and replaced by an ITU group.

Consideration should be given to the expediency of having the functions of GAC carried out by a specially-constituted group within ITU with the authority to veto decisions adopted by the ICANN Board of Directors. If it is so decided, the ITU Secretary-General should be instructed to consult ICANN on the matter.

The proposal was first noted by Gregory Francis at CircleID.

It says that the GAC is currently the only avenue open to governments to “defend their interests” but that it has “no decision-making authority and can do no more than express its wishes”.

It also notes that fewer than 50% of nations are members of the GAC, and that only 20% or fewer actually participate in GAC meetings.

The proposal was apparently submitted to the ongoing ITU Plenipotentiary Conference but, in contrast to ICANN’s policy of transparency, many ITU documents are only accessible to its members.

A reader was kind enough to send me text extracted from the document. I’ve been unable to verify its authenticity, but I’ve no particular reason to believe it’s bogus.

The RCC was set up in 1991 to increase cooperation between telecommunications and postal operators in the post-Soviet era. Its board is comprised of communications ministers from a dozen nations.

Its position on ICANN appears to be also held by the Russian government. Igor Shchegolev, its communications minister, is chair of the RCC board.

At the Plenipotentiary on Tuesday, Shechegolev said (via Google Translate):

We believe that the ITU is capable of such tasks to international public policy, Internet governance, its development and finally, protection of interests of countries in ICANN.

Philip Verveer told the conference:

the ITU should be a place where the development of the Internet is fostered. The Internet has progressed and evolved in a remarkably successful way under the existing multi-stakeholder arrangements. Changes, especially changes involving inter-governmental controls, are likely to impair the dynamism of the Internet—something we all have an interest in avoiding.

ICANN itself has no formal presence at the Plenipotentiary, after ITU secretary-general Hamadoun Toure turned down a request by ICANN president Rod Beckstrom for observer status.

The conference carries on until October 22. It’s likely that we haven’t heard the last of the anti-ICANN rhetoric.