Brussels ICANN: Board to ‘Accept’ .XXX IRP Findings Friday

BRUSSELS, Belgium—The ICANN Public Forum is the opportunity for stakeholders and other interested parties, including those off-site, to address the ICANN board in person regarding specific issues. Thursday, the five-hour Public Forum kicked off with dot-XXX, and it became quickly apparent that the board, which had made its essential decision regarding a way forward with the controversial application on Saturday—before the Brussels meeting even began—intends to punt the application forward by “accepting” the recommendations of the Independent Review Panel (IRP) majority, which found in ICM Registry’s favor in January.

The challenge for the board, however, was precisely how to move forward consistent with the IRP. In March, it had literally mapped out three main process options, and Thursday the general counsel, John Jeffrey, outlined for the audience the main points of the chosen process that will be contained in a resolution to be voted on by the board tomorrow. It is expected that the vote will be procedural and the resolution will pass.

Specifically, the board will direct ICANN staff to fast-track a reassessment of the sponsored criteria, based on whether the application is “still current” and also to assess whether “conditions have changed” since the application was first submitted during the 2004 sTLD round. The language used by the general counsel suggested that all three prongs of the required application criteria (technical, financial and sponsorship) will be under review. If they pass muster, contract negotiations will begin and after a draft contract is completed, it will be reconciled with “advice” received from the Government Advisory Counsel, per the ICANN bylaws. The board will then vote on the application. It remains unclear whether there will be another public comment period prior to the vote, as was indicated in the process options. The language of the resolution may clear up that question.

Following an opening presentation about the next public meeting in Cartagena, Colombia, in December, board Chair Peter Dengate Thrush introduced the subject.

“Let's move, then, to the first item of substantive business, and that's the further review by the board of ICM, an applicant for top-level domain,” he said. “They applied for the top-level domain of XXX some time ago. The board, as many of you know, decided in a split vote to decline that application. And ICM then used the appeal mechanism, if you like, in the bylaws, the application for an independent review of the board's decision to determine whether the board had lived by its bylaws. And as many of you well know, the decision came down two to one that, no, the board had not lived according to its bylaws and should not have taken a particular step in its reconsideration of that application.

“The particular step that was most mentioned in the decision is the decision to review whether or not the applicant meant the sponsorship criteria, and the panelists found that we should not have gone back and opened that up. So we then have to decide what to do about that recommendation.

“What we did do at the Nairobi meeting was published for the first time the kind of decision tree of the various options that we thought were available to the board just to share with the community what our kind of thinking processes were and what the various options might be in terms of dealing with this.

“We then had an extraordinary flood of public submissions in response to our request for comment on that, and we come to this meeting now hoping to try and make sense of the public comment and see whether we can chart a way forward.

“And I thought it might be helpful to call on general counsel who has been assisting us in this process just to explain the sort of trends and the direction we're moving in.”

John Jeffrey then took the stage to explain the five main points that arer expected to be in the resolution.

“So as Peter has mentioned, the posting of the board's proposed process on this was unprecedented,” he began. “For the first time, the ICANN board published a decision-making process that it might use for consideration of an important topic. Over 13,000 comments were received, and the board has reviewed a summary of those comments in considering how to move forward. The board has reviewed this topic in detail and is considering the following path subject to the comments taken in this forum and further board consideration prior to the meeting tomorrow.

“Number one, the board proposes to accept and act in accordance with the Independent Review Process majority.

“One, that the board of ICANN in adopting its resolutions of June 1, 2005, found that the application of the ICM registry of the XXX sTLD met the required sponsorship criteria. And, two, the board's reconsideration of that finding was not consistent with the application of neutral, objective, and fair documented policy.

“Two, the board proposes to direct staff to conduct an expedited due diligence to ensure that the ICM application is, "A," still current, and, "B," that there have been no changes in conditions.

“Third, if expedited due diligence is successful, then staff will proceed into contract negotiations with ICM.

“Number four, upon finalizing a draft contract, the board will determine whether the proposed contract is consistent with GAC's advice, and if not, will enter into a GAC consultation following the provisions of the ICANN bylaws.

“And last, based upon that GAC consultation, the board would decide whether to approve the contract and would declare whether it is in accordance with GAC advice or not.”

Following Jeffrey’s remarks, Thrush threw open the conversation to the audience, with a three-minute limit for comments. Following comments by three others, Free Speech Coalition Executive Director Diane Duke addressed the board.

“I would like to speak about a number of concerns that we have about the sTLD dot-XXX,” she began. “One of our first concerns is the wavering definition of what sponsorship community is. According to the 2004 criteria, the definition of sponsorship community is broad based, which means more than just two men and a dog.

“We have evidence—and you have to provide evidence of support from the sponsoring organization; support for the sTLD, support for the sponsoring organization and support for the proposed policy formation process. Not only is there lack of support for that in the adult entertainment industry, there's outright opposition. We believe that ICANN has been misled by ICM as far as the level of support from the adult entertainment industry. We also believe that [much] of the support—people of support, businesses of support that they have reported to ICANN, comes from the original application that they did in 2000 for the gTLD. And many of those businesses are out of businesses, and those same businesses do not support an sTLD.

“We also believe that some of the pre-registered names that are mentioned are defensive in nature, and also registries that are just looking to sell those names later on.

“I want to address the public comment period because there were a number of names, there were a number of issues around that as well. If you look at the support from the adult community for dot-XXX, there are 255. 240 of those are names listed by ICM as a compilation.

“We couldn't find anybody in our industry who knew any of those people. Not only that, we had a very difficult time finding those names on the Internet at all. The only time that showed up were in the ICANN registry under the—I mean, in the ICANN notes under the public comment periods. And of those we did find—14—two were adult registries, one was an advertising company, five were just mainstream registries, one was a religious organization­—and as anybody who has looked at the public comment period knows, there were a lot of comments from the religious organizations—two were software companies and one was a web service.

“So, of the compilation that was reported by ICANN, we could only find 14 of those [people]. Of those, only two had anything to do with the adult entertainment industry.

“FSC supports option three because we believe that the board got it right in 2007 in Lisbon. We believe that there was no lack of support for the dot-XXX, and that the board recognized that and GAC said that as well. And so we believe that that is the true, the right, decision.

“However, if the board does move forward with acknowledging and accepting the IRP's decision, we do hope that you will move forward utilizing the criteria and find out if that criteria is still met today. We offer our resources if we can help new the due diligence process. Thank you very much.”

After a few other (non adult industry) people had made their comments, I made my way to the mike and spoke my piece.

“We are acutely aware of the political, legal, and internal pressures that the ICANN board is under to see this application through. Unfortunately, that said, this is a very difficult situation for us because we know that our industry does not support this, and yet it's been very difficult for us to regularly communicate that through official channels to the board. And we sincerely hope that in this expedited framework, we'll be given the opportunity to present our case to the board.

“There are also some unavoidable ironies for us, considering the current situation, in that in 2000 the board rejected ICM's application for a gTLD, not least out of concern that ICANN would ultimately have to regulate content-related issues. The solution to that problem was to have ICM reapply under the new sTLD regime in which a sub-org–in that case, IFFOR, would provide the regulatory framework that nobody else wanted to be in charge of. Despite the fact that the industry rejected that scheme, according to testimony given during the IRP process by ICM's chief executive, ICANN could still find itself as the final arbiter of content-related issues. It would then need to justify its decisions not only to the adult entertainment industry, but also to outside groups, including those that contributed so vociferously to the public comment period.

“That's really not a place that you want to be. You do not want that responsibility, we do not believe, respectfully. It remains our position that neither ICANN nor IFFOR will be equipped with the expertise, the experience or the support to deal with those issues.

“We come to that conclusion because we deal with them intensively on a daily basis. Free Speech Coalition has argued before and won cases before the U.S. Supreme Court. It is currently in litigation with the U.S. federal government and deals regularly with issues ranging from piracy, censorship, workplace safety, zoning, and many others. This is what we feel passionately about, and we are very concerned that this new regulatory body will not serve our industry well. We look forward to working with the board. We care very much about ICANN and the new gTLD framework going forward. Thank you again for your hospitality this week.”

A few other non-adult-industry people expressed their opinions, and then the only other person from the adult entertainment industry, Gregory Dumas, stepped to the mike.

“My name is Greg Dumas and I represent PanaNames, which is the only ICANN accredited registrar in the country of Panama, next in Colombia, which is a great place and I highly encourage everyone to attend that conference.

“But we also host a lot of adult domains and I personally have been in the adult industry since 1994 in various capacities. And I would like to say that I'm also a former board member of the FSC and a strong supporter of the FSC, and I'd like to say that there is support in the community—it is a hot topic and a lot of people are talking about it—and there is a lot of quiet support for it and a lot of people—unlike myself, who is standing up here with a microphone in front of them—who don't really want to talk about it too much because they're afraid of a little bit of a backlash that could come because a lot of the people who are against it are their customers, and that's important to understand.

“But there is support for it. Heck, I support it and I'm from the adult industry and my clients who own some of the larger domains, or more popular domains in the industry, also support it. They're not afraid of possibly losing value of their domains that they've invested a lot of money in, whether it's developed domains or whatever it is, and I'd like to just go on record as saying that there is support and I think it would be a good thing to have, and especially nowadays. So that's all I wanted to say.

“Again, I'm here representing PanaNames, and not the adult industry.  Thank you.”

Following Dumas’ remarks, there were two other people who commented and the issue was then tabled until the traditional closing ICANN board meeting, during which the dot-XXX resolution will be voted upon. The planned five-hour meeting takes place starting at 1:30 p.m. Brussels time.

Duke had the following comment after the Public Forum, in response to the revelation regarding the board’s plans for moving forward.

“The fat lady isn't singing yet,” she said. “From what I heard today, ICANN is planning on getting advice from GAC (which solidly encouraged ICANN to deny the application in 2007) and to see if ICM’s application still meets the required criteria, including showing broad-based support from the industry (they don't ... never did). If ICANN does indeed provide due diligence and not just lip service, I believe that these are obstacles ICM will not be able to overcome.”

The full transcript of the Public Forum can be found at

More tomorrow following the board meeting and the conclusion of the conference.