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ICANN Rejection of .XXX Domain Might Bring Litigation
ICANN Rejection of .XXX Domain Might Bring Litigation

By Frederick Lane
April 2, 2007 9:53AM

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ICANN Board member Susan Crawford, who voted in favor of the new .xxx top-level domain, suggested in her blog that ICANN had in fact given in to governmental pressure in rejecting the controversial .xxx TLD. Crawford also pointed out that the United States was not the only government to oppose the .xxx domain. ICANN also received objections from Australia, Brazil, and several other countries.

Last Friday, the International Corporation for Assigned Names and Numbers voted 9-5 to reject a proposal by ICM Registry to set up and operate a .xxx domain for sex-related sites. In the wake of ICANN's decision, ICM Registry CEO Stuart Lawley said that the dispute will likely wind up in court.

"This will probably go into litigation," Lawley said. "There are multiple prongs for challenging the ICANN decision."

The plan that ICANN rejected last week was the third version of ICM Registry's proposal, which was originally filed in 2000. After objections were raised by the U.S. government, ICM Registry amended its proposal in 2004 to include the creation of an independent entity, the International Foundation for Online Responsibility. Under the terms of ICM Registry's proposal, IFOR would be responsible for determining whether .xxx sites were in compliance with rules established for the new domain.

Lawley said he was not surprised by the outcome. "No," he said, "we saw the writing on the wall. We held a teleconference with ICANN last month and could tell the outcome from the way the conversation was going."

Political Pressure Against .xxx?

Lawley said that despite the fact that ICM Registry had complied with ICANN's criteria for a new top-level domain, the Bush administration has been actively pressuring ICANN to reject the .xxx proposal.

"We're clearly of the opinion, and we know for a fact," Lawley said, "that the U.S. government intervened and prevented the signing of the August 2005 contract between ICANN and ICM Registry."

ICANN Board member Susan Crawford, who voted in favor of the new top-level domain, suggested in her blog that ICANN had in fact given in to governmental pressure.

"I am troubled by the path the Board has followed on this issue since I joined the Board in December of 2005," she wrote. "I would like to make two points. First, ICANN only creates problems for itself when it acts in an ad hoc fashion in response to political pressures. Second, ICANN should take itself seriously as a private governance institution with a limited mandate and should resist efforts by governments to veto what it does."

Crawford pointed out that the United States was not the only government to oppose the .xxx domain. The Board also received objections from Australia, Brazil, and several other countries.

Fewer New TLDs?

In May 2006, following ICANN's decision not to sign the .xxx TLD contract, ICM Registry filed suit against the U.S. Departments of Commerce and State, arguing that those agencies have no right to withhold e-mails dealing with the Bush administration's response to the .xxx proposal. ICM Registry believes that it can show that the U.S. government exerted undue influence on the purportedly independent body.

Lawley said that a U.S. District Court judge recently ruled in favor of ICM Registry and is ordering the U.S. Government to turn over more relevant e-mails. "A federal judge has agreed with our version of the facts," Lawley said, "and now we're reviewing our options from here on out. There are many different possible approaches."

His chief objection, Lawley added, was that ICANN's decision was fundamentally unfair.

"If you want to set up the process to prevent a .gay or .muslim TLD, well go ahead, you can set your own rules; but what you can't do is change the rules in the middle of the game," Lawley said. "We followed the rules as they stood in 2004 to the letter, and they simply didn't like the outcome."

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