TORONTO - A federal judge has granted summary judgment to the Bush administration in a Freedom of Information Act lawsuit filed by ICM Registry, the company behind the rejected .xxx top-level domain.
ICM Registry had been trying to uncover government documents via the lawsuit.
ICM Registry proposed the porn-oriented .xxx domain to the Internet Corporation for Assigned Names and Numbers in 2004. ICANN approved .xxx in June 2005, but the Bush administration objected two months later, and ICANN's board then reversed its approval with a 9-5 vote.
Stuart Lawley of ICM Registry filed a Freedom of Information Act request to determine the influence conservative groups had on the Bush administration's decision and released the first round of documents in May 2006. The State Department and Commerce Department withheld the documents, claiming that they were part of an internal "deliberative process."
Under the misconduct exception of the Freedom of Information Act, ICM Registry argued, the documents should be handed over if there is reason to believe government misconduct, such as improper influence by conservative groups, was involved.
In his ruling on March 12, U.S. District Judge James Robertson in Washington, D.C., loosely sided with ICM Registry, noting that the argument would apply if the administration "opposed .xxx for nefarious purposes" but none had been found.
"Whatever the boundaries of the misconduct exception, they cannot be as expansive as ICM declares them to be," Robertson said in his ruling. "Absent some showing that consideration of domain name and Internet policy is outside these departments' and agencies' domains - and none has been made - or that they opposed .xxx for nefarious purposes, their action is not misconduct within the meaning of the exception to the deliberative process privilege.
"If the government ‘leaned on' ICANN or any other decision-maker that it did not directly control, (its) policy choice to do so is discoverable under FOIA. That choice (if it was made) was not ‘political abuse,' however, and so the deliberations that underlay it are properly exempt from disclosure."
Robert Corn-Revere, an attorney representing ICM Registry, said ICANN can be sued for denying the .xxx top-level domain.
"ICM Registry is planning to examine and pursue all of its legal options," he said Tuesday. "We were waiting to see what the outcome of this FOIA litigation was."
