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The Real Issue About ICANN and .XXX

John Levine

Way back in 2004, ICANN invited applications for a round of new TLDs. They got quite a few. Some were uncontroversial, such as .JOBS for the HR industry. Some were uncontroversial but took a long time, such as .POST which took five years of negotiation, entirely due to the legal peculiarities of the registry being part of the UN. But one was really controversial, .XXX. By 2005, the applicant, ICM registry, had satisfied all the criteria that ICANN set out in the 2004 round to get .XXX approved, and ICANN has been stalling them ever since, including an ICANN board vote against approval in 2007. Most recently, ICM used a reconsideration process specified in ICANN's bylaws to review the board's actions, and the report not surprisingly said that ICM had followed all the rules, and the board had not.

Before discussing what the issue with .XXX is, here are some things that the issue isn't.

Despite what some poorly researched stories might say, this has nothing to do with Internet censorship or whether porn is available on the net. For anyone who's been living under a rock for the past decade and hasn't seen Avenue Q, finding porn on the net is about as hard as finding sand on a beach, and .XXX won't change that. The ICANN comment page is full of anti-XXX comments which I suspect are not entirely spontaneous, since most of them are character for character identical, no doubt from people who have never checked the bookmarks on their husband's or teen-aged son's computer.

It also isn't about the first amendment rights of pornographers or anyone else. The porn industry has mixed feelings about .XXX. Some favor it as a place where nobody will complain about finding porn by accident, and ICM's rules will prevent some of the egregious abuses like fake porn sites that actually plant malware on your PC. Others feel (quite correctly) that it's a shakedown since many sites in .COM will feel they have to buy matching .XXX sites, either because they're not porn and don't want porn squatting on their name, or because they are porn and don't want different porn squatting on their name. Or they worry (probably wrongly) that it's the first step toward forcing all the porn into an on line ghetto, if not in the US, in other countries without First Amendment protections, although the ubiquity of on line porn makes it hard to imagine how it could be ghetto-ized more than it is now.

It's not about child pornography or other illegal material. ICM has no interest in breaking the law. Their setup is carefully designed to keep out illegal and abusive stuff, and directs some of their revenue to a relevant relief charity.

It also isn't about ICANN acting as an Internet censor. In fact, there is nothing new about domains that only allow specific kinds of content. That's what sponsored domains like .XXX are. Everything in .JOBS has to be about jobs, everything in .MOBI has to work on mobile phones, but in every sponsored domain the contents are managed by the registry, not by ICANN. (Yes, this means that there's someone whose job will be to decide whether sites in .XXX are pornographic enough. Having worked on a copyright case where the material at issue was hundreds of nude pictures of buxom young women, I can report that this sort of job is less fun and more boring than you might think.)

What is at issue is ICANN's tattered credibility as an organization. Over the decade of its existence, ICANN has distinguished itself both by the complexity of its processes, and the cavalier way in which it has ignored them. This has ranged from the trivial to the major, starting with ICANN's bizarre refusal in 2000-2002 to allow board member Karl Auerbach to inspect the corporation's financial records until he went to court and forced them to obey the law that says he could. The bylaws say that the board shall appoint the Ombudsman, but according to the board minutes, they've never done so. When this has been pointed out, rather than putting it on the next meeting's agenda and spending 30 seconds correcting the oversight, board members have gotten all huffy that anyone should expect them to follow the rules. The bylaws say ICANN is supposed to operate in a transparent matter, so all agreements are negotiated, then offered to the community for comment and possible amendment, except when, like last year's Affirmation of Commitments with the US Department of Commerce, they're negotiated in secret and presented as a fait accompli the day they go into effect.

The problem with .XXX is that ICANN realized they might get political heat for approving .XXX, after they'd already gone through the approval process. Rather than either deciding to follow their rules and risk the heat, or explicitly changing the rules and admitting they're doing so due to outside pressure, they've come up with an endless series of increasingly lame and unpersuasive justifications to excuse not following their own rules and process, and never admitting that's what they're doing.

ICANN's board has now spent five years failing to face up to the .XXX mess, and it is clear that they do not have and will never have the integrity to do so. Since ICANN is a California not for profit corporation (much though they would like to pretend they're something else), it's possible that ICM has built up enough of a record of ICANN's malfeasance that they could get a California court to force ICANN to do what they said they would do. That seems unlikely to me because it's kind of a stretch to argue that the 2004 TLD process constituted a contract, although one could fairly ask that if it's not, what did they get for their $45,000 application fee. I'd also expect a court to want to avoid getting involved in what is clearly a political tar pit.

The lesson here is clear: if you want to get something done at ICANN, forget the rules, figure out who knows who, and make sure you have insiders lobbying for you. Yuck.

By John Levine, Author, Consultant & Speaker. More blog posts from John Levine can also be read here.

Related topics: ICANN, Internet Governance, Top-Level Domains

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Comments

"The lesson here is clear: if you Antony Van Couvering  –  May 08, 2010 5:56 PM PST

"The lesson here is clear: if you want to get something done at ICANN, forget the rules, figure out who knows who, and make sure you have insiders lobbying for you. Yuck."

I don't agree with a lot of what John posts, but in this he's spot on.  The only trouble with his view on how to get something done at ICANN is that everyone knows everyone, and there are so many insiders that it's meaningless.  I've been reading a biography of Mme. de Pampadour at Versailles.  The court of Louis XIV is not a bad comparison, except there's nothing grand, nothing noble, and there's no king to make a decision.  It's all intrigue, and no decision is safe from the next round of intrigue. 

The US government bears much of the responsibility for this state of affairs, because while in public it makes pronouncements about transparency, in reality its communications with ICANN tend to be back-channel.  This is even more true of other governments.  As the Government Advisory Committee becomes more and more powerful, they are going to start taking some of the flak for how ICANN is run, and rightly so.

Nice post.

Antony

The Real Issue About ICANN and .XXX Michael Roberts  –  May 09, 2010 9:52 AM PST

I think there is a more nuanced analysis needed here.  From the beginning, there has been a rocky relationship between ICANN leadership and the Commerce Department.  Far too much "do as I say, not as I do" from Commerce (which is directed by political appointees), and far too much confusion from ICANN as to whether its primary responsibility is to act as a trade commission for registries and registrars versus a semi-populist voice for the universe of global Internet users.

So it was entirely predictable that an effort to be all things to all people on a matter involving sex would go astray.  Early on, the Board debated at length its responsibilities to what might be described as registry free enterprise, as opposed to adopting limits on the permissible extent of registry involvement with activities that elected politicians and their governments have always placed limits on. (Stuart Lynn and I, ICANN's first two CEO's, were roundly condemned for our view that some "taxonomic" common sense in the rules for registries and registrars should be faced up to.)

Initially, the free enterprise advocates, along with American 1st Amendment fans, carried the day. 

On further reflection, with new Board members, and looking at the obvious ability of the US and other governments to sanction ICANN, the Board changed its mind.  (It's surprising to me that so many folks maintain ICANN can't change its mind.  Even the US Supreme Court does this.)

So now we have toxic mix of legal options on offer, with claims of virtuous positions from all sides.  And the would-be registry, ICM, continuing to claim there's really nothing to worry about in its free enterprise promotion of sex sites.  Kind of like promoting the legalization of prostitution - a topic on which there will never be a consensus social view.

The current Board realizes both the intractable nature of the .xxx debate, and the very tangible limits of its sphere of action when laid out in front of dozens of freely elected governments with their own views on sexual conduct and business activity.  And worries about its new obligations to explicitly favor the global public interest that came with the Affirmation of Commitments from the Department of Commerce last year.

I suspect that the outcome of this benighted effort lies in the hands of the lawyers.  And remember, "hard cases make bad law."

Gentlemen of the bar, go back to your briefs, find me a clear, unambiguous, and universally favored precedent on which to hang the decision in .XXX.

This is a self inflicted wound Karl Auerbach  –  May 09, 2010 11:23 AM PST

One of the ironies of this situation is that the triple 'X' is derived from the flag of the city of Amsterdam on which the three crosses represent the Christian symbol for the crucifixion on Calvary.

Another irony is how ICANN's claims that it exists to coordinate the domain name system to assure stability.

ICANN has never bothered to stop in its race to regulate the internet to figure out what DNS stability means.

I have long argued that DNS stability is a technical measure; that it means that DNS query packets at the root and TLD level of DNS are efficiently, promptly, and accurately turned into DNS reply packets without bias against any query source or query question.

By that definition, .XXX, and indeed almost all of the things that ICANN does, are out of scope, ultra vires.

Rather than being a coordinator of technical matters pertaining to stability ICANN has become a heavy handed, and ham handed, regulator on par with the worst regulatory excesses of the the 1950's and 1960's.

ICANN-the-regulator stands astride the internet domain name marketplace not so much as a colossus but more like Jabba the Hutt.

Those who aspire to create completely lawful DNS businesses can not do so without ICANN's blessing.

Without that blessing lawful aspirations die.  Witness the 40 applications, for which ICANN took $2 million.  Applications that ICANN, to use a phrase from the Nixon era, has left slowly twisting in the wind.

ICANN's control of the DNS industry in this early 21st century is more complete than was John D. Rockefeller's control of the oil industry during the latter 19th century.  Rockefeller is the epitome of the monopolist.  Is ICANN allowed to do what Rockefeller was not?

Most countries in which ICANN has legal presence or an effect have laws regulating monopoly practices and restraint of trade.

I am surprised that ICANN has not been sued, in the US or elsewhere, on the grounds that ICANN is an unlawful combination or conspiracy in restraint of trade.

Before the kiss of separation of the recent "affirmation" with the US Dept of Commerce ICANN may have had some protection as a putative government actor, but ICANN is now clearly rowing its own boat.

The .XXX case is so devoid of technical aspects that there is no way for ICANN to claim some sort of anti-trust safe harbor based on technical necessity.

ICANN can no longer raise the Chicken Little defense that the internet will collapse - it is now well understood that DNS can hold huge numbers of top level domains.  And tweaking of DNS (largely by people outside of ICANN) - tweaking such as anycast routing, IPv6 DNS Resource Records, and DNSSEC - has shown that DNS is not going to collapse if bushed by the feather of a .XXX top level domain.

ICANN's elimination of any effective means for meaningful participation by the public in ICANN's decision making processes and ICANN's abandonment of any real form of public accountability gives strength to the argument that ICANN is not acting as a "public benefit" corporation and instead is a modern guild of industrial interests establishing prices, products, and terms of sale while limiting guild membership.

ICANN's pains are self inflicted.

Had ICANN abided by its early mantra that it engages only in matters that clearly and proximately pertain to technical coordination then ICANN would not be in the .XXX mess.

But from nearly its inception ICANN has taken the course of an economic and social regulator - and an expensive one at that.  ICANN pays its President more than twice the salary given to the President of the United States.  ICANN's budget is on a growth track to eventually exceed that of the ITU.  And ICANN's direct impact on the domain name industry through fiat and un-founded domain name registry fees is pulling nearly a billion dollars a year out of the pockets of internet users and pumping that money into the wallets of a few incumbent "stakeholders" who have obtained ICANN's blessing to have a TLD.

There are more dangerous TLDs on the horizon - I've heard of a TLD for Christians.  ICANN's posture with .XXX if applied in a more directly religious context could bring on the internet equivalent of the Thirty Years War.

I doubt that at this time that ICANN can return to its proper role.  Rather, I suspect that it will be rent asunder by legal actions or obviated by technological change.

@Karl - XXX for the flag of amsterdam doesnt strike me as very true etymology wise Suresh Ramasubramanian  –  May 10, 2010 3:58 AM PST

Not even with De Wallen in Amsterdam.

Here's what the Straight Dope has to say - something about X on beer casks meaning they'd had duty paid on them, with people adding extra Xs for extra strong beer.  Castlemaine with 4 Xs anyone?

http://www.straightdope.com/columns/read/1628/whats-the-origin-of-xxx-as-in-porn-movies-and-booze

Forgot to add my conclusion Karl Auerbach  –  May 09, 2010 11:34 AM PST

I forgot to add my conclusion, which is this:

ICANN ought to be blind to anything but matters of technical stability of DNS.  And as such, any semantics that some people take from .XXX ought not to be of any concern to ICANN and ought to play no part in ICANN's processes.

ICANN could, consider the technical effects, such as traffic loadings, that a TLD might engender, but that is all.

If, as ICANN's review indicates, that ICM has jumped through all of the hoops then ICANN should put it into its root zone file - ICANN should pay no attention to what the letters of the TLD mean to some people or what kind of content might be hosted on websites (or other internet services) under at TLD

@Mike Roberts -- The Supreme Court changes Antony Van Couvering  –  May 09, 2010 11:34 AM PST

@Mike Roberts —

The Supreme Court changes its mind, but it does so based on principle, custom and usage — but largely on principle. Furthermore, it presents its arguments for the world to see, and to criticize on their merits. It frequently makes unpopular decisions. Once decided, it can change its mind, but it gives a lot of weight to previous decisions.

The Supreme Court gives a very high value to process.  Otherwise meritorious claims are thrown out for technicalities, and otherwise abhorrent claims are upheld because the claimants followed the rules, and the law.

The attention to procedure is not an accident.  It's done because it's the closest approximation to fairness and — dare I say it? — justice.  And it's comprehensible to almost anyone.  Although I don't have the skill or background to argue a case before the Supreme Court, I can generally understand why they have decided something in the way that they did, and even when I disagree, I typically respect at least the consistency of the individual justices.

ICANN's Board displays few of these qualities. While I know and like many of the ICANN Board members, as a group they are disappointing. Consistency in Board decisions is difficult to discern; principles are worn like clothing; and the precedent they most often follow is to ignore prior precedent. 

Of course, ICANN as a whole is a political, not a judicial body, but the Board itself would gain some credibility by doing the things that, well, make people credible, like being consistent, explaining its actions according to its stated principles, and giving credence to its past actions. Instead, it too often appears to make decisions by putting its finger in the air to test the wind.

ICANN would have been far better off following its own rules and approving .XXX in its original form.  Even the wrath of the Bush administration and/or other governments, even up to the disbanding of ICANN and its reconstitution under different rules, would have been preferable.  Now, whatever its decision, it will be viewed — rightly, in my opinion — as a waffling and non-serious body that cannot lead.  This in turn will invite even more back-channel meddling, as happens whenever a power vacuum is apparent.

Sadly, I think that the leaving this in the hands of lawyers might be the best outcome. Although the proceedings will be hugely expensive, at least the U.S. legal system is largely immune from special pleading, and while any decision is subject to appeal, it will at least produce a result.

"The lesson here is clear: if you Constantine Roussos  –  May 10, 2010 4:57 PM PST

"The lesson here is clear: if you want to get something done at ICANN, forget the rules, figure out who knows who, and make sure you have insiders lobbying for you. Yuck."

That is quite a depressing thought and unfortunately right on the money. Seems ICANN seems to be at the mercy of companies such as Verisign or plainly said the self-interest of individuals. You look at vertical integration. What a better way to keep Verisign's monopoly at check?

Unfortunately this is an industry where conflict of interest runs rampant. We have members on the Board who represent interests of Registries, Registrars and constituencies such as the Business Constituency which is run by a few people who reject any newcomers from joining. How do they represent all business interests including entrepreneurs or small business?

I think if things continue in this manner, ICANN will have some major problems. Not that it does not right now. Why on earth would you have an open comment period for .xxx? This is a waste ICANN staff resources. Over 200 pages of junk, spam and points that have nothing to do with the issues. I would rather have ICANN stuff focus on important issues such as the gTLD program for example than have them waste time reading meaningless comments.

Stuart of ICM has every right to be disappointed. Many of us lay here waiting as well. At least the IDN ccTLDs are out. Too bad IANA decided to function as an independent body from ICANN and tweet and blog about Arabic IDNs without even notifying their corresponding governments and TLD managers. Awesome milestone but seriously, the IANA communication is absolutely unacceptable and, bluntly said, quite rude and inconsiderate.

ICANN needs to do their job. They really do. They are overstepping their boundaries and creating bigger problems than they should be accountable for. IDN ccTLDs and new gTLDs are major accomplishments. Why doesn't ICANN follow their own bylaws as well as use some courtesy in their timelines and communication process with potential TLD managers/applicants?

Then we have the communication process to alert the world about getting and running new TLDs. People in fashion (.fashion) or in law (.law) have no idea how to run domain related registries. They work in clothing or legal matters. They are experts in their fields. How can ICANN expect others to start a completely new business, in an industry where they have no knowledge of and dealing with politics and learning curve that surrounds ICANN? This is a recipe for disaster in my opinion. Common business sense can tell you that the probability of success will be quite low. I just can't imagine fashionistas running TLDs :)

No more resources should be wasted for .xxx. The writing is on the wall and ICANN has to follow its own procedures. Oh yea, this isn't about bylaws and what is in the best interests of society. It is all about politics. It is getting quite tiring though. Let us hope for some progress in Brussels,

Constantine Roussos
.music

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