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Will Stonewalling on .xxx Be Beckstrom's First Big Mistake?

Milton Mueller

The .xxx controversy is a legacy of the Bush era. In the dark period of WSIS and the Iraq invasion, ICANN's independence was fatally undermined when a political appointee of the Bush administration, in response to an email campaign from rightwing groups in the Bush "base", issued a direct threat to Paul Twomey that if ICANN approved the .xxx Top-Level Domain (TLD) it would not put it in the root. Bolstering the US government intervention, hypocritical posturing from other governments over porn on the internet (which exists and will continue to exist regardless of whether there is a .xxx TLD) caused ICANN to back away from an earlier decision that .xxx met all the criteria in its policy and should proceed to contract negotiations. If you think that interpretation of events, which I have been saying for years, is tendentious and controversial — well now, a distinguished panel of jurists has just ratified it.

ICANN's Independent Review Panel blew the whistle on those grievous mistakes of the past. So why isn't ICANN's new CEO, Rod Beckstrom, embracing this opportunity to move forward and distance himself from that checkered past? For a time, Beckstrom promised to renew ICANN's reputation. His engaging, honest personality and some good hiring decisions seemed to put ICANN on the path toward greater trust and accountability. But in today's ICANN blog, Beckstrom seems to have let ICANN's lawyers and its insular corporate culture overwhelm him. He now risks blowing all the social capital he has earned.

In a blog post on the .xxx defeat, Beckstrom simply can't bring himself to restate the basic conclusions of the decision. Instead, he talks about how "complex" the issue is and how stakeholders have voiced "opposition" to the .xxx TLD. Beckstrom's message tries to hide the key meaning of the decision: a distinguished independent review panel ruled unambiguously that ICANN approved the .xxx TLD as meeting its sponsorship, business and financial criteria in the RFP and then withdrew that approval in an unfair and discriminatory manner due to political pressure. While Beckstrom praises "accountability," the substance of his message denies it. This won't be a "landmark" unless ICANN has a real change of heart and truly recognizes and reconsiders what it did.

The simple issue here is whether ICANN adheres to its stated policies in making decisions. In that regard, it doesn't matter how popular or unpopular .xxx is among various stakeholders. The IRP determined that ICANN had already ruled, on June 1 2005, that .xxx had enough support among its designated community (responsible adult online service providers) to meet the sponsorship criteria. Disturbingly, it appears as if ICANN is trying to make excuses for more unfair treatment by invoking opposition (there is also support). This will just lead to more lawsuits and more needless controversy.

Let's hope Rod, who is a bright guy, sees the light and understands that it is time to get this whole thing behind us. We won't do this by repeating the cowardly pattern that got ICANN into this mess to begin with: i.e., arbitrarily discriminating against and deny TLD applications that some vocal group doesn't like. New TLD applicants should watch this affair closely - it could foretell how fair or arboitrary the coming TLD round will be. We all know that opposition to .xxx by a few governments comes from an ignorant or hypocritical attempt to express opposition to pornography when the porn is in existing domains and .xxx actually makes it easier to identify and regulate it.

Let's put the Bush era away. Swallow hard, and accept the fact that a serious mistake was made. Act to fix the mistake. Give ICM its TLD just like all the other sTLDs who qualified in the 2004-5 round. Yes, some people will be unhappy. A lot more people, however, will be ecstatic to see that ICANN can actually admit and rectify a mistake.

By Milton Mueller, Professor, Georgia Institute of Technology School of Public Policy
Related topics: ICANN, Internet Governance, New TLDs
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Milton,We don't usually agree about the polarity Eric Brunner-Williams  –  Feb 22, 2010 10:15 AM PST

Milton,

We don't usually agree about the polarity of gravity, however on this issue, the substitution of unstated (and state-directed) policies for stated policies, the outcome of Consensus Policy Development, there was an error.

I do wish you'd take the extra effort to name the "political appointee of the Bush administration" [who] "issued a direct threat to Paul Twomey that if ICANN approved the .xxx Top-Level Domain (TLD) it would not put it in the root." Details are important.

One other nuance, it is the Board, not the Staff, which makes the fundamental decisions. Rod may lead by example, by persuasion, by ... but not, according to the By Laws, by personal dicta.

Who done it? Milton Mueller  –  Feb 22, 2010 11:51 AM PST

The threat was transmitted via telephone by Michael Gallagher (NTIA head at the time) who referred to the views of Deputy Secretary of Commerce David Sampson, who said something like "we won't go there."
http://www.commerce.gov/bios/sampson_bio.htm

This information came out in the testimony of Paul Twomey the transcript of which can be accessed here
http://www.icmregistry.com/irp/Transcript24Sept2009PisantyPaulTwomeyDavidCarronBeckyBurrRebuttal.pdf

the most relevant material is on page 868-869

Please be fair on this issue Kieren McCarthy  –  Feb 22, 2010 12:19 PM PST

As a sort of continuation of my point about keeping the bombast down - this point about a "threat" made to Twomey by the new Deputy Secretary at the DoC is clearly taking things out of context.

Even in the testimony that you point to, Twomey immediately points out why he didn't take the "threat" seriously. For one, Gallagher told him it was a new Deputy Secretary who didn't yet understand the issues, and two, the main negotiating partner in the WSIS process - the UK - had said the reason the US had support was precisely because it could not refuse to add something to the root if approved by the ICANN community.

In stating that this third-hand information was a pre-determined threat being relayed to ICANN, rather than just one piece of a regular exchange of information between top-ranking executives, either demonstrates a real lack of knowledge about the realities of government, or you are choosing to read information in the most dramatic way in order to construct a narrative of your choosing.

Either way, it's not accurate and it only adds more noise to a situation that needs considered and calm reflection.

Re: UK Kieren McCarthy  –  Feb 22, 2010 12:27 PM PST

I should also add - which Twomey didn't - that the UK at the time was heading the EU so when Twomey talked about UK backing (from the lead negotiator David Hendon) - he was talking about the EU position.

And, if the EU had walked away from the US at that point, the US govt would have found it lost all support for its role in the ICANN model. So Twomey is right to say that he never thought it would happen - because US govt officials would have jumped in immediately to explain to a Deputy Secretary why it was a disastrous idea. And we most likely would never have heard anything about the argument.

Uk and US Stuart Lawley  –  Feb 22, 2010 12:36 PM PST

not sure you are 100% correct there Kieren, when Twomey referred to the UK in his testimony he was also referring to the Martin Boyle letter of May 9 2006, not the EU position vis a vis WSIS. Also buried in the FOIA paperwork was a draft discussion document circulated by the DOC, which we referred to in the US that talks about a TLD for adult material not going into the root if the US did not want it to happen.

Ah that is possible Kieren McCarthy  –  Feb 22, 2010 1:03 PM PST

Ah you have a point Stuart.

It could be referring to either: Martin Boyle UK govt letter to ICANN/GAC with respect to .xxx directly; or David Hendon (Martin's boss) with respect to the UK's/EU's negotiating position in WSIS.

I've not seen the draft discussion doc you mention but again I would still say that's a part of the government machinery. It would depend on how many drafts it had been through and who it was sent to in order to judge if the memo was becoming something that was likely to ever be used.

But saying that Twomey was threatened by the USG with non-inclusion of .xxx is too much extrapolation and a red-herring in this case.

dont want to labor the point Stuart Lawley  –  Feb 22, 2010 1:20 PM PST

but both Becky mentioned the fact that Twomey had mentioned "threat" to her in her testimony and also Liz Williams mention how worried Twomey was by it. I also believe the Panel referred to it as a "threat". To say you did not take such a threat seriously because it was such a nuclear option always seemed to me a little disingenuous

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Kieren,To claim there was no threat overlooks Eric Brunner-Williams  –  Feb 22, 2010 2:46 PM PST

Kieren,

To claim there was no threat overlooks prior use, and institutional awareness, you really have to be making the claim that Ira never threatened Jon, over a far more nuanced issue of what was in the IANA zone, and where it was published, or that if he did, no one a decade later thought it relevant.

To cite the WSIS et seq. as controlling is really an appeal to mysticism, or mystery. We've no way to corollate purported cause and purported effect, and the awkwardness is, what was a reasonable, if not to everyone's taste, sTLD application, was incorrectly processed, and even if we can't pin that on any person or moment, it is a failure of process.

We failed, and we really should make an effort to find out how, and why.

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Can we keep the bombast down? Kieren McCarthy  –  Feb 22, 2010 10:36 AM PST

Part of the reason things get out of hand and decision-making becomes so difficult at ICANN is the level of furore and bombast.

So the new CEO has written a blog post about the IRP decision. That is an excellent thing and a step forward. Now you may not personally like how he approached the issue and the words he used but this is but a single blog post and there will be plenty of public and private discussion around this and it is ultimately the whole Board's decision.

To escalate a single post within just a few hours into a question of the CEO's credibility and a crucial gauge of the future of the organization; to state that the CEO "can't bring himself" to highlight the main points in a public document; and to point to "disturbing behaviour" — all of this is unnecessary bombast is not only over the top but it makes calm and reasoned dialogue harder. (Other words in your piece include "dark period", "fatally undermined", "hypocritical posturing", "checkered past", "cowardly pattern", "ignorant" and "hypocritical".)

If there is a lesson that the ICANN community can draw from this first use of the IRP, it's that blowing things out of proportion and using highly emotive language ultimately makes it harder to make good decisions, and longer to see mistakes corrected.

I do not see how .xxx makes John Briscoe  –  Feb 22, 2010 10:37 AM PST

I do not see how .xxx makes it easier to regulate porn domains, I wonder how they would force Joe Doe living in a country whose priority is to feed its people, setting up a porn shop at a .com/.net/.etc/free host domain.

Just as easy of getting rid of copyrighted music on P2P networks. Something will never happen.

.xxx is all about money, it is great setting up a TLD and then having a Government force everyone to your extension, you need no marketing campaign and you can put up any prices you like, I love monopolies myself as long as I am charge of the monopoly.

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