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Did Europe ask America to block .xxx?

Kevin Murphy, May 5, 2011, Domain Policy

The European Commission may have asked the US Department of Commerce to block or delay the .xxx top-level domain, it has emerged.

I’ve heard rumors for a few weeks that Neelie Kroes, vice president of the Commission responsible for the digital economy, wrote to Commerce in April, asking it to delay the go-live date for .xxx.

Today, a reply from Lawrence Strickling, assistant secretary at Commerce, has emerged, published on the blog of Polish technology consultant Andrzej Bartosiewicz.

It appears to confirm the rumors. Strickling wrote:

While the Obama Administration does not support ICANN’s decision, we respect the multi-stakeholder Internet governance process and do not think it is in the long-term best interest of the United States or the global Internet community for us unilaterally to reverse the decision.

It’s certainly possible to infer from this that Kroes had asked the US to exercise its unique powers over the domain name system’s root database to block or delay .xxx.

The Kroes letter was evidently sent April 6, about 10 days before the National Telecommunications and Information Administration, part of Commerce, instructed VeriSign to add .xxx to the root.

In his April 20 response, Strickling shared Kroes’ “disappointment” with ICANN’s decision, saying the organization “ignored the clear advice of governments worldwide, including the United States”.

He said the decision “goes against the global public interest and will spur more efforts to block the Internet” and agreed that ICANN “needs to make to engage governments more effectively”.

To that end, Strickly offered to fly to Brussels to meet with Kroes to conduct a “senior level exchange” on how to better work with ICANN.

While it’s probably too late for any of this to affect .xxx, operated by ICM Registry, it is a clear sign that governments are taking a renewed interest in ICANN’s work.

ICANN’s Governmental Advisory Committee issued weak advice on .xxx, noting merely that no governments outright supported it, and that “several” were opposed. The was no consensus.

Because the GAC did not explicitly say “do not approve .xxx”, ICANN was able to rationalize its decision by saying it was not explicitly overruling governmental advice.

At least three countries — Saudi Arabia, India and Kenya — have already indicated that they may block .xxx domains within their borders.

UPDATE: Kroes did in fact ask Commerce to delay .xxx.

ICM adds another .xxx registrar

Kevin Murphy, April 28, 2011, Domain Registrars

DomainMonster has become the latest registrar, the first in the UK, to announce support for ICM Registry’s upcoming .xxx porn-only top-level domain.

The company said it has been accredited by ICM, and that it will start taking pre-orders for the domains on its Domainbox reseller platform soon.

Others registrars to have announced that they plan to carry .xxx domains over the last few months include Network Solutions, Blacknight, EnCirca, RRPProxy.net and United Domains.

I’m not sure if any have been officially accredited yet — no .xxx registrars show up on ICANN’s offical list.

DomainMonster CEO Matt Mansell said: “We anticipate the .XXX launch to be the biggest we’ve seen in recent years. The demand our support teams are seeing already far outstrips anything that’s gone before.”

ICM has previously projected somewhere between 300,000 and 500,000 registrations after launch. It took around 600,000 pre-reservations in the few years before it was approved by ICANN.

Getting .xxx accrediation is said to be quite a lengthy process. Registrars have to answer 14 detailed questions, including agreeing to abide by ICM’s policies and detailing how they plan to promote the domains.

.xxx domains go live

Kevin Murphy, April 16, 2011, Domain Registries

Click here: icmregistry.xxx, then come back.

That’s right. After ICM Registry’s almost 11 years of campaigning, and almost $20 million in legal and other expenses, .xxx domain names are actually live in the domain name system.

ICANN, IANA, the US government and VeriSign, in that order, have all agreed to delegate the internet’s newest gTLD, and the first few .xxx domains went live within the last couple hours.

The domains sex.xxx and porn.xxx are now also resolving to placeholder sites. They’re currently “safe for work”, but possibly not for much longer.

IANA has a .xxx page, complete with a lengthy delegation report (in a snazzy new pdf format) that broadly explains the convoluted process ICANN used to ultimately, albeit reluctantly, approve the TLD.

Why ICANN’s CEO did not vote on .xxx

Kevin Murphy, April 11, 2011, Domain Policy

President and CEO Rod Beckstrom has explained his decision to abstain from voting on ICM Registry’s .xxx top-level domain when it came before the ICANN board last month.

As expected, Beckstrom provided substantially the same explanation for his abstention as he did at the Brussels meeting last June – not on the merits of .xxx, but because he had legal concerns.

Specifically, he abstained because he objected to one of the majority findings of an Independent Review Panel, which forced .xxx back to the table last year after ICANN had tried to reject it.

Beckstrom wrote, in a recently published statement (pdf):

while I accept the contribution to ICANN’s accountability and transparency provided by the existence and the use of the independent panel review process, I nonetheless remain concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs.

This refers to the “business judgment rule”, a piece of California law under which courts give deference to the judgment of company directors, unless their decisions were made in bad faith.

If an IRP panel – the last port of appeal for companies upset with ICANN’s decisions – were required to use this rule, it would substantially raise the bar for a successful complaint.

But the panel in the case of ICM Registry versus ICANN (the only such panel to date) decided, by a 2-1 vote, that ICANN’s actions should be “appraised not deferentially but objectively.”

This allowed ICM to win its case by merely showing ICANN had acted outside its bylaws, and not necessarily in bad faith.

The dissenting IRP panelist, Dickran Tevrizian, wrote: “The rejection of the business judgment rule will open the floodgates to increased collateral attacks on the decisions of the ICANN Board of Directors”.

However, the IRP did not specifically rule that ICANN “should not use business judgment” as Beckstrom’s statement suggests, just that the IRP was not obliged to defer to it.

Beckstrom’s statement also gives a shout-out to the Governmental Advisory Committee:

In addition, I note the concerns of the GAC, which while not expressed as a clear decision, was nonetheless directional.

As I previously blogged, ICANN approved the .xxx contract over the objections of some members of the GAC, using the fact that the GAC’s official advice was vague enough to be worked around without explicitly rejecting it.

Beckstrom, incidentally, did not even sign the .xxx contract with ICM, which I believe is a first for an ICANN registry contract. It was instead signed by general counsel John Jeffrey.

(via InternetNews.me)

ICM faces porn anger over .xxx

ICM Registry executives took the brunt of angry opposition to the .xxx top-level domain from pornographers at an adult industry trade show this week.

A two-hour session on .xxx, which took place at The Phoenix Forum in Arizona the day after ICM and ICANN signed their registry contract, saw the new TLD attacked on multiple fronts.

Defending, ICM’s Vaughn Liley tried to explain why .xxx isn’t as bad as many in the US adult industry believe but, on the back foot from a misjudged opening gambit (asking the openly hostile audience of pornographers if any of them supported child porn), often found himself adding to the confusion.

Now that .xxx has been approved and the contract signed, the discussion focused largely on how ICM and its policy body, the International Foundation For Online Responsibility, will actually function.

Pornographers wanted to know, for example, why anybody would want to invest in marketing a .xxx domain if IFFOR could one day make a policy that excluded their business from the TLD.

I get the impression that the pro-ICM speakers, which included Greg Dumas of GEC Media, could have benefited from having copies of the company’s policy documents in front of them.

At one point, Liley flatly denied that ICM plans to “spider” .xxx domains to enforce compliance with IFFOR policies, such as the prohibition on meta tags that suggest the presence of child pornography.

Minutes later, a .xxx opponent read aloud from the IFFOR policy (pdf) that says all registrants must consent to “automated monitoring”.

A semantic misunderstanding? Possibly. But it left Liley facing calls of “liar” from the audience.

The question of whether this monitoring will extend to, say, .com domains, if the registrant chooses to redirect their .xxx names, was left unanswered.

IFFOR policies will be created by a Policy Council of nine members, five of which will be drawn from the adult entertainment industry.

Earlier in the discussion, Liley denied that IFFOR’s board of directors or ICM will have “veto” power over these Policy Council policies, calling it “factually incorrect”.

Again, an audience member reading aloud from the IFFOR Policy Development Process document (pdf) showed that the IFFOR board has the ability to block a policy under certain circumstances.

Not only that, but ICM gets to object to policies that emerge from IFFOR, under certain circumstances. If this happens, ICM will work with IFFOR “to modify the Proposed Policy to address any concerns identified by ICM”.

There may be enough limitations on ICM’s powers to mean it’s not technically a “veto”, but it’s close.

It makes perfect sense for ICM to have this safeguard, of course. If IFFOR were to be captured by the haters, they could easily make mischief that could ruin its business.

Many of the other questions raised at the forum related to issues that will effect all new TLD launches and concern all new TLD opponents, such as brand protection.

My conclusion after watching the two-hour session: ICM needs to work on its messaging.

The company actually has several ideas for how it could help the porn industry make money, but you wouldn’t know it from any of its public statements to date.

If you have a free couple of hours, the video can be watched here.