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.

.xxx domains could arrive by June

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

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”.

Porn set to steal the show in San Francisco

ICM Registry’s .xxx top-level domain looks set to grab the headlines at ICANN’s meeting in San Francisco, due to government-forced delays.
While ICANN is hoping to approve its new top-level domains program in March, that decision may wind up receiving less media attention than the final approval of the porn-only domain.
ICANN last month said that it wanted to hold a final consultation to resolve its differences with the Governmental Advisory Committee – which broadly objects to .xxx – in February 2011.
This referred to a proposed meeting between the GAC and the board, which has now been officially scheduled for February 28 in Brussels.
But a resolution carried by ICANN this week has pushed the consultation back to “no later than Thursday 17 March, 2011”, the day before its San Francisco meeting.
That would put the sign-off of ICM’s contract on the same billing as the planned final approval of the new top-level domains Applicant Guidebook and the launch of the new TLDs program.
San Francisco is set to be the focus of unprecedented media attention, due to its location and the likely presence of Bill Clinton. We’re probably looking at tighter stage management than usual.
With that in mind, I expect ICANN bosses won’t be too happy that porn-friendly .xxx is likely to steal away many column inches they would prefer devoted to new TLDs.
Porn in headlines gets clicks. Readers understand it, and you generally don’t need to explain to an editor what a TLD is. I know which story would be easier for me to sell.
Had ICANN put .xxx on the agenda for Brussels – which does not appear to have been ruled out yet – it could have wrapped up the ICM saga with a resolution quite quickly afterward.
That would have given ICM a week or so of undiluted media coverage, and the new TLDs program would not have had to share the spotlight with porn come San Francisco.
The question is: why is .xxx apparently not on the agenda for Brussels? Given ICANN’s previous decision to hold the meeting in February, responsibility seems to lie with the GAC.
Rumor has it that there’s a bit of a power struggle going on behind the scenes, with some elements of the GAC resistant to make Brussels the official final .xxx consultation.
Time will tell whether this position is firm or flexible.

.XXX demands approval in Brussels

ICM Registry has called on ICANN to quickly give final approval to its .xxx top-level domain contract after its meeting with governments next month.
Company president Stuart Lawley, in a letter to ICANN (pdf), said ICM has “invested extraordinary resources” in its TLD proposal and has waited almost seven years to get into the DNS root.
Its hopes of getting the nod from ICANN’s board of directors in Cartagena last month were dashed, when it was decided that a final consultation with the Governmental Advisory Committee was required.
That consultation is set to take place in Brussels at the end of February (although ICANN’s announcement of the meeting last Friday conspicuously made no mention of .xxx).
Lawley writes:

ICM Registry urges the ICANN Board to fulfill its explicit commitments to ICM Registry and to the ICANN community, and to uphold the integrity of the ICANN process by conducting and completing its consultations with the GAC
…
Neither ICM Registry nor the ICANN community can be expected to stand by while ICANN allows yet another self-imposed deadline on this matter to come and go without a plausible explanation.

The letter notes that it’s almost a year since ICANN’s Independent Review Panel told the organization that, despite its protestations to the contrary, .xxx had already been approved.
Lawley tells me ICM is spending, on average, $100,000 a month to keep the company ticking over. He believes that the proposed registry contract has dealt with all of the GAC’s concerns.
The one concern it will never be able to avoid, of course, is that .xxx is for porn, and there are plenty of governments (be they Middle Eastern theocracies, communist Asian states or conservative Western democracies) opposed to porn in principle.
The GAC said in an official Communique in 2006 that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”
As far as I can tell, that’s pretty much the only major stumbling block remaining before ICM can sign a registry contract.
UK GAC rep Mark Carvell told me yesterday that the GAC believes the 2006 statement constitutes “advice” that ICANN is duty-bound to take into account, even though it was not a consensus GAC position.
In my opinion, ICANN has no choice but to disregard this advice.
If we suddenly start living in a world where the public policies of a handful of backward nations are sufficient to veto a TLD, then we may as well pack up the whole internet and move it to Saudi Arabia or Utah.

New TLDs may face more GAC delay

ICANN has finally confirmed the date for its groundbreaking meeting with its Governmental Advisory Committee, and it doesn’t look like great news for new top-level domain applicants.
The GAC and ICANN’s board of directors will meet for a two-day consultation in Brussels, starting February 28, according to an announcement late yesterday.
Attendees will be tasked with identifying the problems the GAC still has with the Applicant Guidebook, and trying to resolve as many as possible.
The devil is in the detail, however. ICANN stated:

This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.

This means that, post-Brussels, a second GAC consultation will be required before the ICANN board will be able to approve the Guidebook.
Under ICANN’s bylaws, when it disagrees with the GAC, it has to first state its reasons, and then they must “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
ICANN appears to have now confirmed that it has not yet invoked this part of the bylaws, and that Brussels will not be the “mutually acceptable solution” meeting.
The best case scenario, if you’re an impatient new TLD applicant, would see the second consultation take place during the San Francisco meeting, which kicks off March 13.
The board would presumably have to convene a special quickie meeting, in order to officially invoke the bylaws, at some point during the two weeks between Brussels and San Francisco.
That scenario is not impossible, but it’s not as desirable as putting the GAC’s concerns to bed in Brussels, which is what some applicants had hoped and expected.
The GAC is currently writing up a number of “scorecards” that enumerate its outstanding concerns with the Guidebook.
Mark Carvell, the UK representative, has been tasked with writing the scorecard for trademark protection. Other scorecards will likely also discuss, for example, the problem of objecting to TLD applications on “morality and public order” grounds.
ICANN’s board, meanwhile, is due to meet this coming Tuesday to agree upon the “rules of engagement” for handling disagreements with the GAC under its bylaws.
When these rules are published, we should have a better idea of how likely a San Francisco approval of the Applicant Guidebook is.
Surprisingly, the ICANN announcement yesterday makes no mention of ICM Registry’s .xxx TLD application, which is the only area where the board has officially invoked the bylaws with regards the GAC’s objections.
The Brussels meeting, ICANN said, will be open to observers, transcribed live, and webcast.

Network Solutions will sell .xxx domains

Network Solutions has become the first big-name registrar to show that it will support the proposed .xxx top-level domain.
This page has recently appeared on the NSI site, accessible from the company’s home page through the link “.xxx Coming Soon”.
NSI appears confident that ICANN will approve the TLD soon:

.XXX will be launching shortly and Network Solutions is working with ICM Registry to provide informational services for our customers that wish to take advantage of the launch and register domain names.

The TLD is currently being tied up by ICANN’s Governmental Advisory Committee, but many believe it’s likely to be a shoo-in at the San Francisco meeting in March or sooner.

The Top Ten Hottest Posts of 2010

Tumbleweeds are blowing through the domain name industry this week, which makes it an excellent time to take a look back at 2010, in the form of a list of this blog’s most widely read posts.
In descending order, here are the top ten DomainIncite stories of 2010:
ICANN had no role in seizing torrent domains
When ICANN stood accused by the blogosphere of helping the US government shut down dozens of .com domains in November, it took the organization a full week to officially deny it. In the meantime, it kicked off a Twitter campaign encouraging people to visit this post, making it the year’s most-read by some margin.
dotFree’s “free” domain names explained
Everyone wants something for nothing, so when I provided the first interview with the chief executive of the recently launched dotFree Group in August, it gathered a lot of attention. It turned out .free domains may not be as “free” as some had hoped.
WordPress.com becomes a domain name registrar
When I spotted that WordPress.com owner Automattic had received an ICANN registrar accreditation, company CEO Matt Mullenweg was good enough to link back to this post when he subsequently announced the move to his readers in October.
First reactions to ICANN’s VI bombshell
It was the biggest shake-up in the domain name industry in a decade – ICANN announced in November that it would start letting registrars and registries own each other. The full repercussions have yet to be felt, but this post summarized some of the early reactions.

ICANN will not attend White House drugs meeting
When and how governments and law enforcement should be able to block domain names is an ongoing hot topic for the industry. This September post broke the news that ICANN would not participate in US talks about blocking “fake pharmaceuticals” web sites.
Porn group starts anti-XXX campaign
The ongoing .xxx drama continues to be one of the key domain name industry stories that plays just as well with a mainstream readership. In addition, including the keywords “xxx”, “group” and “porn” in the same headline has proven disturbingly useful for acquiring search engine traffic.
Gaming scandal hits Russian domain launch
Internationalized domain names finally arrived on the internet in 2010, and the launch of Russia’s .РФ (.rf) IDN ccTLD was easily the biggest success story. It has racked up almost 700,000 registrations in the last two months, but was hit by allegations of registrar gaming, which I reported on here.
ICANN told to ban .bank or get sued
The road to the approval of ICANN’s new gTLD program was widely anticipated to have wrapped up by the end of the year. It didn’t, but that didn’t stop some eleventh-hour special pleading by organizations such as the Financial Services Roundtable.
Whistleblower alleged shenanigans at DirectNIC
DirectNIC has had its fair share of legal troubles in 2010. First it was sued for cybersquatting by Verizon (which it denied) and then, as I reported in this December post, a former employee alleged a complex scheme to make money through fraudulent domain arbitrage (which it denied, then settled).
Survey reveals demand for .brand TLDs
A World Trademark Review survey revealed mixed reactions from trademark lawyers and corporate marketing departments to new TLDs, but it did reveal that most companies would use their “.brand” TLD, if they had one, as their primary online address.
Let’s hope 2011 brings such a diverse range of interesting topics to write about. I’m certain it will.