ICM Registry Goes on Offensive for .XXX, But Has No Adult Industry Support

Posted in: Domain Names at 19/04/2010 15:26

ICM Registry has published an open letter to ICANN and the internet community as part of their campaign to lobby for ICANN to approve the .XXX Top Level Domain. The letter notes ICM is disappointed with the possibility that ICANN will disregard the findings of the independent review, but ignores the claims by the adult industry that they do not want .XXX.

ICM notes that two of the three options put forward by ICANN staff on the way forward for .XXX would disregard the findings of the independent review.

The review panel found that ICANN's handling of ICM Registry's application to run the .XXX top level domain violated ICANN's Bylaws and Articles of Incorporation, as well as international and California law. It should be noted that the holdings of the Independent Review Panel are advisory in nature and that they do not constitute a binding arbitral award.

However the proposal has been condemned by the adult industry around the world. In March, Diane Duke, the Executive Director of the Free Speech Coalition (FSC), a trade association of the adult entertainment industry with members both in the United States and globally, wrote to ICANN expressing their outrage at the prospect of a .XXX top level domain, saying the proposal is "not of the industry and that the proposal does not have the community's support.

Meanwhile Fiona Patten, CEO of the Eros Association, Australia's national adult retail and entertainment association, is also vehemently opposed to the .XXX proposal.

"I can see no positive outcome from the introduction of .xxx," Patten told The GoldsteinReport.com. She also believes nothing has changed since the ICANN meeting in Wellington in March 2006 where the Government Advisory Committee, where governments give advice to ICANN, opposed the approval of .XXX. This included the Australian government who Patten says has indicated they are still opposed to the introduction of .XXX.

Patten also says it is her "understanding of the TLD process [that] industry support is a fundamental requisite and ICM does not have that."

"In the past the arguments for a TLD such as .XXX was that it would prevent child pornography and stop children from accessing adult material," Patten wrote in a recent blog posting.

"It will do neither. There will still be plenty of adult material on the .com domain and frankly child pornographers are criminals and they will not be concerned about NOT using a .XXX domain.

"I agree we need new domain names due to the enormous of the WWW but why not a .KIDS or other names that could create on line walled playgrounds for children?"

To read the full text of the open letter from ICM Registry, see below:

Open Letter to ICANN and the Internet Community by Stuart Lawley
ICM Registry will shortly issue an in-depth response to ICANN's paper outlining "possible process options" for addressing the declaration of the Independent Review Panel regarding .xxx, which is now open for public comment.

This letter provides a shorter and more personal perspective on this paper and the six-year process that has led ICM Registry, and ICANN, to this point.

We are, frankly, disappointed and dismayed that ICANN staff would seriously contemplate simply disregarding the findings of the independent panel of eminent jurists in the Independent Review. But that is exactly what two of the three options put forward by staff would do.

The Independent Review Process offered ICANN and ICM a mechanism to finally resolve the status of ICM's application. Let's be clear here: this was no five-minute hearing. The IRP process went on for nearly two years and both sides were given ample opportunity to present their arguments in depth; which they both did, including at an in-person hearing with witnesses and in hundreds of pages of written briefs.

It cost both ICM Registry and ICANN several million dollars each, and the process was fair, thoughtful, and rigorous. As a result, we acknowledged well before the panel issued its declaration, that we would respect the Panel's declarations even if the decision went against us.

And the Panel's findings are clear. Not only did it find in our favour on all the important issues in the case, but it also clearly rejected the arguments put forward by ICANN's management, often in strong terms.

The Panel did find that its declaration was not binding on the ICANN Board but we expected that ICANN would respect the views of the Panel and honour, in ICANN's own words, its "ultimate" accountability mechanism. It is profoundly disappointing then that the options paper, which was produced by the same team whose arguments were dismissed by the IRP, effectively ignores every other aspect of the panel's declaration.

The fact is, as independent experts have now confirmed, that the ICANN Board's decision to reject dot-xxx in 2007 was the product of bad advice. And the Board continued to rely on that bad advice all the way through the IRP process where it was eventually disregarded by some very serious legal minds. So the current Board should be very cautious about following the advice it has now received in the form of three options that disregard the Panel's conclusions (even the option to accept the Panel's findings contains subsequent steps that ignore those same findings).

Neither the ICANN Board nor the ICANN community is well served by this approach. What's more, it is costing ICANN, ICM and the Internet community millions of dollars to continue down this path.

Our biggest concern, however, remains not the cost, nor the self-serving refusal to accept failed legal arguments. What really concerns ICM Registry is that if ICANN is willing to disregard its own processes and obligations, it risks undermining the organization and model itself.

ICM Registry has always been a big defender of ICANN's private sector led, bottom-up and multi-stakeholder decision-making process, even though that has meant a slow, expensive and frustrating journey for us in our effort to improve one small part of the Internet. But it is something we have always believed in as it allows everyone affected by the Internet to have a say in the Internet's evolution.

In Nairobi and in the on-topic public comments on the staff's options paper, serious members of the ICANN community -- including those who opposed creation of dot-xxx in the first instance -- have urged ICANN to respect its own accountability mechanisms. We sincerely hope that the ICANN Board is listening.

This is a critical test of ICANN's maturity as an organization, especially considering that it has recently been freed from direct oversight by the US government. We take no pleasure at all in finding ourselves in the position of having to insist that ICANN demonstrate the maturity it needs to maintain the confidence of the global Internet community, and to do so in a clear and unambiguous decision.

ICANN should simply do the right thing and approve the creation of a dot-xxx top-level domain without delay and without seeking to cover mistakes of the past with a curtain of additional processes.

ICM Registry

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