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08 May 2010
Way back in 2004, ICANN invited applications for a round of new TLDs. They got quite a few. Some were uncontroversial, such as .JOBS for the HR industry. Some were uncontroversial but took a long time, such as .POST which took five years of negotiation, entirely due to the legal peculiarities of the registry being part of the UN. But one was really controversial, .XXX. By 2005, the applicant, ICM registry, had satisfied all the criteria that ICANN set out in the 2004 round to get .XXX approved, and ICANN has been stalling them ever since, including an ICANN board vote against approval in 2007. Most recently, ICM used a reconsideration process specified in ICANN's bylaws to review the board's actions, and the report not surprisingly said that ICM had followed all the rules, and the board had not.
Before discussing what the issue with .XXX is, here are some things that the issue isn't.
Despite what some poorly researched stories might say, this has nothing to do with Internet censorship or whether porn is available on the net. For anyone who's been living under a rock for the past decade and hasn't seen Avenue Q, finding porn on the net is about as hard as finding sand on a beach, and .XXX won't change that. The ICANN comment page is full of anti-XXX comments which I suspect are not entirely spontaneous, since most of them are character for character identical, no doubt from people who have never checked the bookmarks on their husband's or teen-aged son's computer.
It also isn't about the first amendment rights of pornographers or anyone else. The porn industry has mixed feelings about .XXX. Some favor it as a place where nobody will complain about finding porn by accident, and ICM's rules will prevent some of the egregious abuses like fake porn sites that actually plant malware on your PC. Others feel (quite correctly) that it's a shakedown since many sites in .COM will feel they have to buy matching .XXX sites, either because they're not porn and don't want porn squatting on their name, or because they are porn and don't want different porn squatting on their name. Or they worry (probably wrongly) that it's the first step toward forcing all the porn into an on line ghetto, if not in the US, in other countries without First Amendment protections, although the ubiquity of on line porn makes it hard to imagine how it could be ghetto-ized more than it is now.
It's not about child pornography or other illegal material. ICM has no interest in breaking the law. Their setup is carefully designed to keep out illegal and abusive stuff, and directs some of their revenue to a relevant relief charity.
It also isn't about ICANN acting as an Internet censor. In fact, there is nothing new about domains that only allow specific kinds of content. That's what sponsored domains like .XXX are. Everything in .JOBS has to be about jobs, everything in .MOBI has to work on mobile phones, but in every sponsored domain the contents are managed by the registry, not by ICANN. (Yes, this means that there's someone whose job will be to decide whether sites in .XXX are pornographic enough. Having worked on a copyright case where the material at issue was hundreds of nude pictures of buxom young women, I can report that this sort of job is less fun and more boring than you might think.)
What is at issue is ICANN's tattered credibility as an organization. Over the decade of its existence, ICANN has distinguished itself both by the complexity of its processes, and the cavalier way in which it has ignored them. This has ranged from the trivial to the major, starting with ICANN's bizarre refusal in 2000-2002 to allow board member Karl Auerbach to inspect the corporation's financial records until he went to court and forced them to obey the law that says he could. The bylaws say that the board shall appoint the Ombudsman, but according to the board minutes, they've never done so. When this has been pointed out, rather than putting it on the next meeting's agenda and spending 30 seconds correcting the oversight, board members have gotten all huffy that anyone should expect them to follow the rules. The bylaws say ICANN is supposed to operate in a transparent matter, so all agreements are negotiated, then offered to the community for comment and possible amendment, except when, like last year's Affirmation of Commitments with the US Department of Commerce, they're negotiated in secret and presented as a fait accompli the day they go into effect.
The problem with .XXX is that ICANN realized they might get political heat for approving .XXX, after they'd already gone through the approval process. Rather than either deciding to follow their rules and risk the heat, or explicitly changing the rules and admitting they're doing so due to outside pressure, they've come up with an endless series of increasingly lame and unpersuasive justifications to excuse not following their own rules and process, and never admitting that's what they're doing.
ICANN's board has now spent five years failing to face up to the .XXX mess, and it is clear that they do not have and will never have the integrity to do so. Since ICANN is a California not for profit corporation (much though they would like to pretend they're something else), it's possible that ICM has built up enough of a record of ICANN's malfeasance that they could get a California court to force ICANN to do what they said they would do. That seems unlikely to me because it's kind of a stretch to argue that the 2004 TLD process constituted a contract, although one could fairly ask that if it's not, what did they get for their $45,000 application fee. I'd also expect a court to want to avoid getting involved in what is clearly a political tar pit.
The lesson here is clear: if you want to get something done at ICANN, forget the rules, figure out who knows who, and make sure you have insiders lobbying for you. Yuck.
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