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How ICANN overruled governments on .xxx

Kevin Murphy, March 19, 2011, Domain Registries

In approving the .xxx top-level domain, ICANN has for the first time explicitly overruled the wishes of international governments, as represented by its Governmental Advisory Committee.

In its rationale (pdf) for the decision, ICANN explains why it chose to disregard the GAC’s views.

There are two pieces of GAC advice that have been quite important. One was delivered in Wellington in 2007, the other was delivered yesterday

The Wellington GAC Communique noted that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”

That was repeated during a terse, 10-minute “bylaws consultation” on .xxx yesterday, during which the the GAC also said “there is no active support of the GAC for the introduction of a .xxx TLD”.

ICANN chose to reject (kinda) both of those pieces of advice, on the basis of a quite literal interpretation — that GAC support was unnecessary and the advice was not specific enough:

There is no contradiction with GAC advice on this item. Active support of the GAC is not a required criteria in the 2004 sTLD round. Further, this is not advice from the GAC either to delegate .XXX or to not delegate .XXX, and therefore the decision to delegate .XXX is not inconsistent with this advice.

Unfortunately, this gives pretty much no clue to how the board will treat minority GAC positions in future, such as when some governments object to new gTLDs.

But companies planning to apply for potentially controversial TLDs can take heart from other parts of the rationale.

For example, the board did not buy the notion that .xxx should be rejected because some countries are likely to block it.

Saudi Arabia has already said it intends to filter out .xxx domains.

The GAC was worried that this kind of TLD blocking would lead to a fragmented root and competing national naming systems, but ICANN wasn’t so sure. The rationale reads:

The issue of governments (or any other entity) blocking or filtering access to a specific TLD is not unique to the issue of the .XXX sTLD. Such blocking and filtering exists today. While we agree that blocking of TLDs is generally undesirable, if some blocking of the .XXX sTLD does occur there’s no evidence the result will be different from the blocking that already occurs.

It’s been noted that some Muslim countries, for example, block access to Israel’s .il domain.

One director, George Sadowsky, dissented from the majority view, as is his wont. In a lengthy statement, he named stability as one reason he voted against .xxx.

He said “the future of the unified DNS could be at stake” and “could encourage moves to break the cohesiveness and uniqueness of the DNS”.

He drew a distinction between the filtering that goes on already and filtering that would come about as a direct result of an ICANN board action.

He was, however, in the minority, which makes proposed TLDs such a .gay seem likely to get less of a rough ride in future.

.xxx domains could arrive by June

Kevin Murphy, March 18, 2011, Domain Registries

ICANN’s board of directors today approved the .xxx top-level domain, over the objections of governments and pornographers.

The vote was 9 to 3 in favor, with three directors recusing themselves due to conflicts of interest and the CEO abstaining (pretty typical for votes on .xxx over the years, I think it’s a liability thing).

Assuming the US government, which controls the DNS, doesn’t try the nuclear option of overruling ICANN, .xxx could make it into the root about 10 days from now.

Now expect ICM Registry to ramp up the marketing quite quickly – it’s aiming to launch the first of its three sunrise periods in mid-June, just three months from now.

We’re looking at a landrush certainly before the end of the year.

While ICM, in a press release today, said .xxx domains “will only be available to the adult entertainment industry”, the industry is self-defining, and president Stuart Lawley has previously stated that flipping porn domain names counts as an industry service.

Domain investors are welcome, if not necessarily encouraged, in other words.

I hear ICM has already reached out to registrars, giving them a mid-April deadline to apply to be evaluated.

The TLD launching on schedule will of course also depend on whether any legal action is taken to stop it. Diane Duke, executive director of the Free Speech Coalition, a porn trade group, said at a press conference yesterday that the FSC is thinking about suing.

She also said that it may arrange some kind of boycott, which strikes me as a terrible idea – how many pornographers will refuse to defensively register their .xxx domains out of principle? Very few, I suspect.

The FSC said last week that it was also looking into a Reconsideration Request or an Independent Review Panel procedure, which are the only two real avenues of appeal through ICANN.

An IRP could be more expensive than a lawsuit, and if precedent is any guide even a successful Reconsideration would be moot – it would take at least a month, by which time ICM’s registry contract would be long since signed.

It seems likely that ICM’s long, strange, expensive journey into the DNS may finally be at an end.

Porn rally underway at ICANN San Francisco

Kevin Murphy, March 17, 2011, Domain Policy

A small group of Free Speech Coalition supporters are currently holding a protest against the .xxx top-level domain, outside the ICANN meeting in San Francisco.

The rally outside the Westin St Francis hotel on Union Square has attracted about 25 people by my count, chanting slogans such as “We want porn! No triple-X!”

Noted porn producer/performer John “Buttman” Stagliano is among them, although he seems to be keeping to the sidelines.

Not to judge, but another of the protestors appears to be the same homeless guy who’s been bothering me for change and cigarettes all week.

Also attending, first amendment attorney Paul Cambria. There’s an unsubstantiated rumor he’s ready to serve ICANN and/or ICM Registry with a lawsuit if .xxx gets approved tomorrow.

He declined to comment on the rumor.

There’s an FSC press conference shortly, and Cambria tells me he’s going to be making a statement at the ICANN public comment forum later this afternoon.

I’ll update when it becomes clearer what the FSC’s game-plan is.

ICM picks new sunrise partner for .xxx launch

ICM Registry has hired IP Rota, a new London-based company, to handle trademark validation in the sunrise periods of the forthcoming .xxx top-level domain.

IP Rota is the work of NetBenefit co-founder Jonathan Robinson, who also currently sits on the boards of Nominet and Afilias, .xxx’s back-end partner.

The company replaces Valideus, which was originally recruited to design and implement ICM’s sunrise policies, apparently due to grumblings from rival registrars. ICM said:

Valideus was originally retained by ICM to assist with the design of the .XXX launch but graciously withdrew from implementation of the initial rights protection mechanism because of the potential for perceived conflict of interest with a related domain name registrar, Com Laude.

Com Laude is a registrar specialising in corporate brand protection. It shares ownership with Valideus.

ICM is planning three sunrise periods for .xxx, including one that would let trademark holders not in the porn business to pay a one-time fee to have their brand.xxx placed on a reserved list.

The .xxx TLD contract still has not been approved by ICANN, of course. Barring last-minute surprises, that could happen as soon as the ICANN board meeting, March 18.

The registry is IP Rota‘s first client.

ICANN director has .xxx job offer

Sebastien Bachollet, recently installed on the ICANN board as its first elected “At Large” director, has been offered a job working for the .xxx top-level domain, it has emerged.

According to a board “statement of interests” (pdf) released yesterday, independent technology consultant Bachollet:

has been invited to be a member of the Board of the International Foundation for Online Responsibility (IFFOR), which is set up to be the sponsoring organization for the .XXX sTLD, should ICM be awarded a contract for the .XXX sTLD.

He’s only the second person to be named as a potential member of the IFFOR board, after Canadian entrepreneur Clyde Beattie.

It goes without saying that Bachollet will be recusing himself from the (final?) ICANN board vote on ICM Registry’s .xxx contract, set for the San Francisco ICANN meeting March 18.

If .xxx is approved, IFFOR will create policies governing the .xxx TLD. It will be made up of a mixture of the adult industry, security, child protection and free speech advocates.

The SOI also revealed, in an ambiguously plural statement, that: “IBM may apply for new gTLD”.