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Open Letter to ICANN and the Internet Community

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.

Sincerely
ICM Registry

By Stuart Lawley, Chairman and CEO of ICM Registry
Related topics: ICANN, Internet Governance, New TLDs
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Hey Stuart,I have been reading all the Constantine Roussos  –  Apr 18, 2010 3:45 PM PDT

Hey Stuart,

I have been reading all the public comments at http://forum.icann.org/lists/icm-options-report/index.html and I have to say the ICANN Board's decision to ask for .xxx public comments was a bit surprising. Were they expecting constructive feedback on the ICM decision? I am not seeing many people knowing what the issue at hand is and nearly all the comments are opposition to a .xxx extension and pornography rather than anything else.

Furthermore, a lot of the comments even trickled down to other public comment areas such as Vertical Integration and ICANN Travel, which are unrelated to .xxx. I started reading the comments and pretty much gave up because I found no arguments for or against the ICANN issue at hanf. I feel bad for ICANN staff that will be putting together the summary for these public comments. What a waste of time and resources.

I believe ICANN has certainly not done a great job dealing with ICM and the obvious reason is the nature of the extension. If this was a different type of extension, let us say .web, this would not be an issue. Unfortunately Stuart, you are in an uphill battle here and unfortunately we all know that this has everything to do with due process (and nothing to do with it as well), the negative perception of pornography, and everything to do with ICANN admitting politically driven mistakes which would lead them to support the notion of allowing .xxx to exist as a new gTLD.

ICANN is very strange when it comes to accountability. I have been waiting for years for a .music launch and had timelines changed three times. I sit and wait and waste money in the meantime and so do others. There is even conflict of interest on the ICANN Board making decisions as well. For example, look at the vertical integration issue. We have Ram, representing the Afilias registry, we have Bruce Tonkin representing the Melbourne IT registrar as well as Harald representing Google, another ICANN registrar. How is this not a conflict of interest? I always wonder what happens behind closed doors. Rest assured there are monopolies at the registry level with a lot of lobbying power. Unfortuntely for .xxx, there is a lack of lobbying power that can influence the Board from the inside. Can people like Ram Mohan influence the Board on issues such as vertical integration? You bet. Does Afilias fund this? You bet. Welcome to ICANN. The land of the conflict of interests as well as the insider influences. 

I hope no more resources and finances are devoted to fight or delay any new extensions. I hope ICANN acknowledges that it has wasted a lot of people's time, money and effort with their promises, timelines and expectations. I saw some progress at Nairobi with making some decisions as opposed to none. Let us hope everything works out well for everyone involved.

Constantine Roussos
.music

Constantine,The current public comment period was always Stuart Lawley  –  Apr 18, 2010 3:58 PM PDT

Constantine,
The current public comment period was always going to be a re-run of the previous 3 (or was it 4) comments periods, post our approval, that were supposed to be about simple contractual matters but turned into fora for special interest groups trying to exert a "Hecklers Veto".  The IRP clearly declared that we should have been awarded a contract many years ago and ICANN acted improperly in not doing so. The question at hand now is simply whether ICANN is going to be seen to be truly accountable, as I believe most in the community want them to be, or attempt to avoid the decision of the Panel through its usual method used with us of further comment and process asphyxiation.

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