Gay community not gay enough to win new gTLD

An applicant for .gay has lost its chance to get exclusive rights to the new gTLD, partly because the self-defined gay community it wants to represent is not “gay” enough.
Dotgay LLC is one of four applicants, and the only “Community” applicant under ICANN rules, for .gay.
But the company yesterday failed in its attempt to pass a Community Priority Evaluation, scoring just 10 out of 16 available points and failing to reach the required 14-point passing threshold.
Most of its points were lost on the “Nexus between Proposed String and Community” criteria, where 4 points were available but Dotgay scored zilch.
The CPE panel concluded that the gay community described in the Dotgay application was too broad to be described by the string “gay”, because it includes lots of people who aren’t gay — such as transgender people or heterosexual campaigners for gay rights.
Under the CPE rules, applicants can score the maximum points if their chosen string “matches” the name of the community. Partial points can be won if it “identifies” the community.
The panel decided that it did neither:

Included in the application’s community definition are transgender and intersex individuals as well as “allies” (understood as heterosexual individuals supportive of the missions of the organizations that comprise the defined community). However, “gay” does not identify these individuals. Transgender people may identify as straight or gay, since gender identity and sexual orientation are not necessarily linked.8 Likewise, intersex individuals are defined by having been born with atypical sexual reproductive anatomy; such individuals are not necessarily “gay”. Finally, allies, given the assumption that they are heterosexual supporters of LGBTQIA issues, are not identified by “gay” at all. Such individuals may be an active part of the .GAY community, even if they are heterosexual, but “gay” nevertheless does not describe these individuals

Because “gay” was not found to identify the applicant-defined community, Dotgay lost 3 points. A knock-on effect was that it lost another 1 point for not “uniquely” identifying the community.
The applicant lost another two points on the “Community Endorsement” criteria — one point for not being backed by an organization recognized as representing all gays and another because the application had received informal objections from at least one significant community member.
The CPE decision means that rival applicants Top Level Design, Rightside and Minds + Machines are back in the game.
The .gay gTLD, assuming there are no successful appeals against the CPE, is now likely headed to auction.

First three Community Objections decided: DotGay and Google win but Donuts loses

The International Chamber of Commerce has delivered the first three Community Objection decisions in the new gTLD program, killing off one application and saving two others.
These are the results:
.gay
The objection filed by Metroplex Republicans of Dallas, a gay political organization, against DotGay LLC has failed.
The panelist, Bernhard Schlink, decided that Metrolplex lacked standing to file the objection, stating:

while the conservative segment, with which Metroplex claims association, is a segment of the clearly delineated gay community, it is not a clearly delineated community in and of itself. That some LGBTQ people hold conservative political views and vote for conservative candidates may bring them into a statistical category, but does not make them connect, gather, interact, or do anything else together that would constitute a community, or, that would make them publicly visible as one.

It was the only objection against this .gay application, meaning it can now proceed to later stages of the new gTLD process.
.fly
The objection was filed by FairSearch.org, a coalition of companies that campaigns against Google’s dominance of online markets, against Google’s .fly application.
The application was originally for a “closed generic” registry, but Google has since stated that it has changed its mind and run .fly with an open registration policy.
FairSearch lost the objection, despite ICC panelist George Bermann giving it the benefit of the doubt multiple times during his discussion on its standing to object.
Instead, Google prevailed due to FairSearch’s failure to demonstrate enough opposition to its application, with Bermann writing:

A showing of substantial opposition to an application is critical to a successful Objection. Such a showing is absent here.

He also decided that Google presented a better case when it came to arguing whether or not its .fly would be damaging to the community in question.
.architect
Finally, Donuts has lost its application for .architect, due to an objection by the International Union of Architects, which supports Starting Dot’s competing application for .archi.
Donuts had argued that UIA did not have standing to object because an “architect” does not always mean the kind of architect that designs buildings, which is the community the UIA represents. It could mean a software architect or landscape architects, for example.
But panelist Andreas Reiner found that even if the UIA represents a subset of the overall “architect” community, that subset was still substantial enough, still a community, and still represented by the string “architect”, so that it did have the standing to use the Community Objection.
It also did not matter that the UIA does not represent all the “structural architects” in the world, the panelist found. It represents enough of them that its opposition to .architect passes the “substantial” test.
He eventually took the word “architect” in its most common use — people who design buildings — in determining whether the UIA was closely associated with the community in question.
On the question of whether architects would be harmed by Donuts’ plan for .architect, the panelist noted that architects are always licensed for public safety reasons.
Here are some extracts from his decision, which seem important:

Beyond concerns of public safety, habitat for human beings is of essential importance in society, at the human-social level, at the economic level and at the environmental level
…
it would be compatible with the above references public interests linked to the work of architects and with the related consumer protection concerns, to allow the domain name “.architect” to be used by anyone other than “architects” who, by definition, need to be licensed
…
The use of the top-level domain “.architect” by non-licenced architects is in itself an abuse. This top-level domain refers to a regulated professional service. Therefore all safeguards must be adopted to prevent its use by a non-licensed person.
…
The top-level domain “.architect” raises the legitimate expectation that the related website is the webiste of a licensed architect (or a group of licenced architects). Correct information is essential to consumers visiting websites.

Basically, Reiner trashed Donuts long-standing argument in favor of blanket open registration policies.
He noted specifically that whether to allow a gTLD to proceed might be considered a free speech question, but said that free speech often has its limits, such as in cases of consumer protection.
Worryingly, one of the pieces of evidence that the panelist considered was the Governmental Advisory Committee’s Beijing communique, which contains the GAC’s formal advice against over 500 applications.

Rejected .gay gTLD objection ruled “unfair”

dotgay LLC could be hit by another formal new gTLD objection from gay Republicans.
ICANN Ombudsman Chris LaHatte today said that it was “unfair” that a community objection filed by GOProud, a gay lobby group, was rejected by the International Chamber of Commerce.
The ICC screwed up, it seems, judging by LaHatte’s decision.
Washington DC-based GOProud, which seeks to show that not all gay rights advocates have liberal views on other issues, had filed a community-based objection to dotgay’s .gay gTLD application.
While the substance of the objection is not known, I suspect it’s politically motivated. The other objection to dotgay’s application was filed by another gay Republican organization, the Metroplex Republicans of Dallas (formerly Log Cabin Republicans Dallas).
The ICC rejected the objection because it was about 500 words over the prescribed limit, but it sent the notification to the wrong email address, according to LaHatte’s blog.
Had GOProud received the notification, it would have had time to amend its objection to rectify the mistake. However, by the time it discovered the problem the filing deadline had passed.
LaHatte wrote:

there is some unfairness in the subsequent rejection given the apparent error in the use of the wrong email. It seems to me that it would be relatively easy to unwind that decision, and permit the late filing of the objection. I can of course only make a recommendation, but in this case where there is some unfairness I think the matter should be revisited.

The Ombudsman’s role is to handle complaints about unfairness in ICANN’s actions, so it’s not entirely clear what’s going to happen in this case, given that the ICC is an ICANN subcontractor.
LaHatte’s recommendation is certainly not binding in either case. Whether the ICC changes its mind may depend on whether ICANN asks it to or not.
dotgay is the New York-based applicant founded by Scott Seitz. It’s one of four companies applying for .gay.
The other three applicants — Top Level Domain Holdings, Top Level Design and Demand Media — have each received community objections from the International Lesbian Gay Bisexual Trans and Intersex Association, a dotgay supporter.

gTLD Objector says .sex, .gay, .wtf are all okay

The Independent Objector for ICANN’s new gTLD program has given a preliminary nod to applications for .sex, .gay, .wtf and six other potentially “controversial” applied-for strings.
Alain Pellet this week told applicants for these gTLDs that he does not expect to file objections against their bids, despite an outpouring of public comments against them.
The strings given the okay are .adult, .gay, .hot, .lgbt, persiangulf, .porn .sex .sexy, and .wtf.
A total of 15 applications have been submitted for these strings. Some, such as .gay with four applicants, are contested. Others, such as .wtf and .porn, are not.
The IO is limited to filing objections on two rather tightly controlled grounds: Limited Public Interest (where the bid would violate international law) and Community (where a community would be disenfranchised).
For each of the nine strings, Pellet has decided that neither type of objection is warranted.
In his preliminary finding on .gay and .lgbt, he also noted that to file an objection “could be held incompatible with the obligation of States not to discriminate on grounds of sexual orientation or gender identity which is emerging as a norm”.
As part of a lengthy analysis of the international legal position on homosexuality, De Pellet wrote:

even though the IO acknowledges that homosexuality can be perceived as immoral in some States, there is no legal norm that would transcribe such a value judgment at the international level. Thus, the position of certain communities on the issue is not relevant in respect to the IO’s possibility to object to an application on the limited public interest ground.

For the porn-related applications, Pellet noted that any bid for a gTLD promoting child abuse material would certainly be objected to, but that ICANN has received no such application.
On .wtf, which received many public comments because it’s an acronym including profanity, Pellet observed that freedom of expression is sacred under international law.
He regarded the problem of excessive defensive registrations — as raised by the Australian government in the recent wave of Governmental Advisory Committee early warnings — is outside his remit.
Pellet’s findings, which I think will be welcomed by most parts of the ICANN community, are not unexpected.
Limited Public Interest Objection, originally known as the Morality and Public Order Objection, had been put forward in the wake of the approval of .xxx in 2010 as a way for governments to bring their national laws to bear on the DNS.
But it was painstakingly defanged by the Generic Names Supporting Organization in order to make it almost impossible for it to be used as a way to curb civil rights.
The GAC instead shifted its efforts to the GAC Advice on New gTLDs objection, which enables individual governments to submit objections vicariously based on their own national interest.
Pellet’s findings — which are preliminary but seem very unlikely to be reversed — can be read in full on his web site.

Iran warns on 29 new gTLD bids

The Iranian government has filed late Early Warnings against 29 new gTLD applications, mostly on the basis that the applied-for strings are un-Islamic and “unethical”.
Bids for .gay, .sex, .wine, .bet, .poker and others relating to sexuality, alcohol and gambling are “in conflict with ethical standards” in Iran, according to the submissions.
We hear that the 29 warnings were filed with ICANN’s Governmental Advisory Committee December 10, well after the November 20 deadline that most other governments on the GAC stuck to.
We understand that problems obtaining visas for ICANN’s meeting in Toronto this October may have been blamed for the delay.
The initial batch of Early Warnings for the most part overlooked “moral” problems with gTLD strings, focusing far more on consumer protection, defensive registration costs and geographic sensitivities.
Not so with the Islamic Republic of Iran, which is much more concerned about words it believes promote anti-Islamic behavior or represent Islamic concepts without the required community support.
The government says in its opposition to .gay, for example, that the gTLD would be responsible for:

Agitation and irritation of the humanity and faith; and spread of hatred and hostility in the society.
Encourage people to perform non-religious, Unethical and Non-rational actions in the society.
Encourage people on doing unlawful actions according to Islam religion in the society.
Getting away society from healthy environment for doing daily activities.

Several other Early Warnings use the same or similar language. Iran suggests that the applicants could remedy the problem by banning registration in Islamic nations.
Not all of its warnings are related to sex, drink and gambling, however.
It’s also objected to .krd, which has been applied for to represent the Kurdish community in the region, saying it could “raise serious political conflicts” and lacks support.
The .eco applicants have also been hit with warnings on the grounds that ECO is an acronym for the Economic Cooperation Organization, a regional intergovernmental organization focused on trade.
ECO meets the criteria for IGOs to register .int domains, according to Iran, which is the GAC’s current proposed method of creating a list of protected second-level domain names for IGOs.
The full list of Iran’s objections is published here.

First anti-gay gTLD opponent emerges

The first public objections have been filed against applications for the .gay generic top-level domain.
Abdulaziz Al-Zoman reckons .gay shouldn’t be allowed because being gay is “against the law and public morality” in many countries, according to a comment that he filed against all four .gay applications.
Here’s the whole comment:

ICANN is dealing and playing a very strong role in worldwide public policies. It sets global public Internet-related policies that effect many worldwide societies and communities with verity of values and cultures. Therefore, ICANN MUST adhere and respect these cultures and values and not to impose its own “western” culture and values to other communities.
If “gay” is an accepted activity in USA it does not mean it is also accepted or welcomed elsewhere. ICANN should not enforce western culture and values into other societies. It should not ignore other society’s values. If the new gTLD programs had been limited to the United States, the homeland of ICANN, then it might be accepted to have the applied-for gTLDs strings (.gay). In spite of this, even if these strings (.gay) represent a permitted western standard of expressions, ICANN should not impose it globally upon the rest of the world. ICANN should not ignore the fact that activities related to this string are considered criminal act or unlawful in some parts of the world. Furthermore, ICANN should stick to GAC principles that call for respecting the sensitivity regarding terms with national, cultural, geographic and religious significance.
The applied-for gTLD string (gay) is not welcomed in many societies and communities and is against the law and public morality. ICANN should work for the benefit of all societies. It should not indulge itself in prompting and expanding western culture on the Internet. If it is really desired and needed in the ICANN home community (USA), then it can be provided under the .us TLD (e.g., gay.us) but not in the worldwide root space.

Al-Zoman appears to be referring to Saudi society, which has about as slim a grasp on morality as you’ll find anywhere in the world.
Sadly, his comments are likely a precursor to a battle within ICANN’s Governmental Advisory Committee over whether a formal GAC objection to .gay should be filed.
This is Big Question stuff.
Should ICANN operate according to the internet’s principles of openness, fairness and inclusion, or should it make its decisions based on demands emerging from medieval, theocratic backwaters?
You can probably guess what my opinion is.

TLDH applies for 92 gTLDs, 68 for itself

Top Level Domain Holdings is involved in a grand total of 92 new generic top-level domain applications, many of them already known to be contested.
Sixty-eight applications are being filed on its own behalf, six have been submitted via joint ventures, and 18 more have been submitted on behalf of Minds + Machines clients.
Here’s the list of its own applications:

.abogado (Spanish for .lawyer), .app, .art, .baby, .beauty, .beer, .blog, .book, .casa (Spanish for .home), .cloud, .cooking, .country, .coupon, .cpa, .cricket, .data, .dds, .deals, .design, .dog, .eco, .fashion, .fishing, .fit, .flowers, .free, .garden, .gay, .green, .guide, .home, .horse, .hotel, .immo, .inc, .latino, .law, .lawyer, .llc, .love, .luxe, .pizza, .property, .realestate, .restaurant, .review, .rodeo, .roma, .sale, .school, .science, .site, .soccer, .spa, .store, .style, .surf, .tech, .video, .vip, .vodka, .website, .wedding, .work, .yoga, .zulu, 网址 (.site in Chinese), 购物 (.shopping in Chinese).

There’s a lot to note in that list.
First, it’s interesting to see that TLDH is hedging its bets on the environmental front, applying for both .eco (which we’ve known about for years) and .green.
This puts it into contention with the longstanding Neustar-backed DotGreen bid, and possibly others we don’t yet know about, which should make for some interesting negotiations.
Also, both of TLDH’s previously announced Indian city gTLDs, .mumbai and .bangaluru, seem to have fallen through, as suspected.
Other contention sets TLDH is now confirmed to be involved in include: .blog, .site, .immo, .hotel, .home, .casa, .love, .law, .cloud, .baby, .art, .gay, .style and .store.
The company said in a statement:

During the next six months, TLDH will focus its efforts on marketing and operations for geographic names such as dot London and dot Bayern where it has the exclusive support of the relevant governing authority, as well as any other gTLDs that TLDH has filed for that are confirmed to be uncontested on the Reveal Date. Discussions with other applicants regarding contested names will be handled on a case-by-case basis.

GAC gets more power to block controversial gTLDs

While the new version of ICANN’s new generic top-level domains Applicant Guidebook contains mostly tweaks, there’s a pretty big change for those filing “controversial” applications.
The Guidebook now grants the Governmental Advisory Committee greater powers to block gTLD applications based on minority government views.
ICANN has adopted poorly-written, ambiguous text approved by the GAC at its meeting in Dakar last October, which lowers the threshold required to force the ICANN board to consider GAC advice.
The changes essentially mean that it’s now much easier for the GAC to force the ICANN board to the negotiating table if a small number of governments object to a gTLD application.
In the September Guidebook, a GAC consensus objection was needed to force the ICANN board to manually approve controversial applications. Now, it appears that only a single country needs to object.
This is the relevant text:

The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

Applications for .gay, of which there are expected to be at least two, will almost certainly fall into this category.
If you’re applying for a potentially controversial gTLD, you can thank the GAC for the fact that your road to approval is now considerably less predictable.
It’s also worth bearing in mind that the GAC is allowed to file an objection based on any aspect of the application – not just the chosen string.
So, for example, if you’re applying for .bank or .pharma and your application falls short of one government’s expected consumer safeguards, you may also see a GAC “concerns” objection.
In cases where the GAC objects to an application, the ICANN board of directors does have the ability to overrule that objection, if it provides its rationale, much as it did with .xxx.
However, .xxx was a special case, and ICANN today is under a regime much friendlier to the GAC and much more nervous about the international political environment than it was 12 months ago.
Make no mistake: GAC Advice on New gTLDs will carry weight.
This table compares the types of GAC Advice described in the Applicant Guidebook published in September with the one published last night.
[table id=5 /]
It should also be noted that since Dakar the GAC has defined consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”.
In other words, if some GAC members push for a GAC consensus objection against a given gTLD, other GAC members would have to formally object to that proposed objection in order to prevent the minority view becoming consensus.
It’s a pretty low threshold. The .gay applicants, among others, are going to have a nerve-wracking time.

How ICANN overruled governments on .xxx

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.

Is .gay now safe from government blocking?

What are the chances of a .gay top-level domain being added to the internet, given the current state of play in the talks between ICANN and governments?
I think they’re looking pretty good.
While the details have yet to be ironed out, it’s looking like ICANN’s favored method for handling government objections to so-called “sensitive strings” would probably let a .gay slip through.
As you may recall, the ICANN Governmental Advisory Committee had proposed a mechanism for objecting to TLD strings that said in part:

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.

The ICANN board would then be able to treat this advice in the same way its bylaws allow it to treat any GAC advice – it would be free to disregard it, if it had a good reason.
ICANN has seemingly agreed that this process is fair, but has added its own caveats. This is what chair Peter Dengate Thrush just forwarded to GAC chair Heather Dryden (pdf):

A procedure for GAC review will be incorporated into the new gTLD process. The GAC may review the posted applications and provide advice to the ICANN Board. As discussed with the GAC, such advice would be provided within the 45-day period after posting of applications, with documentation according to accountability and transparency principles including whether the advice from the GAC is supported by a consensus of GAC members (which should include identification of the governments raising/supporting the objection).

While it’s certainly a concession to the GAC’s request to be allowed to provide advice about potentially objectionable strings, I think the addition of “transparency principles” is important.
The GAC’s original proposal would have maintained the black-box approach to advice-making that currently characterizes its role in ICANN. It reaches consensus in private.
For example, all we know about the GAC’s opposition to the .xxx TLD application is that “several governments” object to it. We don’t (officially, at least) know which governments.
Complicating matters, the GAC believes that referring to this minority position in one of its official Communiques makes it consensus “advice” on .xxx that ICANN must consider.
If ICANN’s new transparency requirements had been applied to the .xxx application, it would make the call it has to make next week – whether to reject the GAC advice and approve .xxx – much more well-informed.
Returning to .gay, if the GAC is going to be obliged to name (and, depending on your perspective, shame) the governments that officially object to the string, it leaves a lot less room for back-room horse-trading leading to amorphous “consensus” positions.
Let’s say, for example, that Saudi Arabia, Iran and the United Arab Emirates (three countries where the death penalty still applies to active homosexuals) were to object to the string.
How much support would that move receive from governments in less repressive parts of the world?
Which relatively liberal Western governments would be willing to put their names to a document that essentially implements homophobia in the DNS? Very few, I would imagine.
For such an objection to gather broader support there would have to be a real risk of “root fragmentation” – the threat that the Saudis et al could decide that, rather than blocking .gay, it would be easier to divorce themselves from ICANN entirely and set up their own competing DNS root.
But let’s remember that by the time .gay is live and available to block, there’s a good chance that .xxx – equally opposed by several nations – will have been in the root for a couple of years. The practice of gTLD blocking at the national level may well be the norm by that point.
So, let’s now say that the GAC’s advice, stating an objection to .gay and naming the limited number of objectors, is forwarded to the ICANN board. What happens then?
Absent some kind of objective scoring system, directors would each have to make a subjective decision. Do I want to give TLD veto power to a narrow, homogeneous subset of nations? Do I want lowest common denominator morality to dictate global internet policy?
I’d like to think that, faced with such a choice, most ICANN directors would vote with their consciences. I hope I’m not being naïve.
This is a scenario I’m exploring hypothetically here, of course, but these are the kinds of decisions that may have to be made for real over the coming few years.