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Why ICANN Doesn't Need to Go Back to the GAC Over Dot-XXX

Kieren McCarthy

This Friday, it looks as though the ICANN Board will follow the clear conclusions drawn by its independent review and approve dot-xxx.

Given the importance of the first use of the review process, the importance of the Board being seen to be accountable and the fact that the community was pretty unanimous in recent public comment, it is pretty much the only reasonable course of action.

The question then is: how do things move forward? The company behind dot-xxx, ICM Registry, has published what it thinks is the best approach, but in both pieces of work put before the Board by ICANN staff, has been the suggestion that the Board would need to go back to the Governmental Advisory Committee (GAC) before making dot-xxx a reality.

The question is: why? Unfortunately, neither paper makes it particularly clear. As far as I can determine, not only is there no need to go back to the GAC over dot-xxx but it also unlikely to serve any real purpose, and it may even put the GAC into a difficult position where it effectively approves a controversial top-level domain.

So what is the logic for why the Board needs to talk to a specific advisory committee before it makes a decision on its own independent review process?

According to the staff's logic, this specific ICANN bylaw (Article XI, 2.1j) is the reason.

It says that when it comes to public policy issues, ICANN needs to take into account any GAC advice, and if the Board decides to do something that does not follow any advice the GAC has provided, it needs to explain why.

Here's what I don't understand though:

• The Board has already taken into account GAC advice
• The independent review has also already taken into account GAC advice
• Approving dot-xxx doesn't break any of that advice

What's more, it's very unlikely that the GAC will have any other advice to give. It's also easy to forget that the GAC has never said: don't approve dot-xxx. Yes, it has said it wants the Board to explain why it approved the application, and yes it has pointed out that some of its members were opposed to dot-xxx but there's a world of difference between the GAC expressing concerns and the ICANN Board effectively deferring to the GAC following a full ICANN process and an independent review.

Of course you as a reader probably have no recollection of what the GAC has *actually* said, so here is a rundown:

In November 2005, in Vancouver, the GAC said [pdf] that it was glad to have additional time to review the Evaluation Report for dot-xxx. (And that was it.)

In March 2006, in Wellington, it said [pdf] it wanted an explanation from the Board explaining its decision to approve dot-xxx, and it noted that the public interest benefits that ICM Registry had promised didn't appear to be part of the registry agreement drawn up for dot-xxx (I'm pretty sure they have been pulled in since).

In February 2007, the GAC chair sent a letter [pdf] to ICANN's chairman saying that the GAC wouldn't have time to send a public response before the Lisbon meeting, and reiterating its message from Wellington.

And finally, in Lisbon in March 2007, it referred back [pdf] to its message in Wellington again and said it wanted more information from the Board than it had provided, and drew attention to a comment from one government that it was concerned ICANN could become a regulator under the terms of registry contract.

And that is the extent of advice the GAC has provided to the Board on dot-xxx. None of this means there is any reason that ICANN can't start negotiating a final registry contract with dot-xxx and it certainly doesn't point to any "potential violation" of the ICANN bylaws, as the staff paper has argued.

But minutiae aside, let's look at the reality of the situation: if the GAC *is* asked by the Board to comment on dot-xxx, what can it say other than: we've already told you what we think?

What's worse from the GAC perspective is that if the Board puts off negotiating a registry contract with dot-xxx until it gets back, the GAC could be put into the impossible position of effectively deciding whether a new top-level domain that has passed all the evaluation criteria *and* been through an independent review process should move ahead.

If the Board does insist on asking the GAC an empty question, is it going to be very difficult to paint it as any more than an unnecessary additional process in the approval of dot-xxx.

Everyone wants to put this issue to bed after years of process, and that means no additional processes.

The Board needs to be seen as not only accountable but responsive to its own independent review. I for one hope it puts an end to what has been a damaging six years for the organization as a whole and just says yes to dot-xxx on Friday. I'm sure the GAC will understand.

In the interests of full disclosure, ICM Registry hired me to write a summary and analysis of the recent public comment review on dot-xxx and I have also done some communications work for the company. Read into that what you will.

By Kieren McCarthy, Executive Director at IFFOR; CEO at .Nxt
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Even if the ICANN approves the .xxx John Briscoe  –  Jun 24, 2010 3:42 PM PDT

Even if the ICANN approves the .xxx domain, I like to see who is going to use it as the adult industry doesn't want the .xxx domain.

And if they do it I also like to see what arguments the ICANN could have not approve future applications for a .sex and .naughty TLD.

A bad idea altogether, here we would have a sensitive .xxx domain in the hands of a private company who does not represent anyone but hunger for profit.

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