FSC Supports Option #3

["Diane Duke" <diane@xxxxxxxxxxxxxxxxxxxxxxx>]

The Free Speech Coalition (FSC) has carefully reviewed the recommendations
of ICANN's 19 February 2010 Independent Review Panel and the 26 March 2010
process options for further consideration of the ICM application for the
.XXX sTLD submitted by ICANN CEO Rod Beckstrom and General Counsel John
Jeffrey. FSC decidedly supports Option 3 of the aforementioned process:
"Adopt the Findings of the Dissent". 

 

FSC agrees with the dissenting opinion of the IRP in that ICM "never
satisfied the sponsorship requirements and criteria for a sponsored TLD."
Moreover, FSC agrees with that same opinion in that "the Board denied ICM's
application for the .XXX sTLD on the merits in an open and transparent
forum." 

 

ICANN's 2004 sTLD Application clearly states that: 

A key requirement of a sTLD proposal is that it demonstrates broad-based
support from the community it is intended to represent. 

Applicants must demonstrate that there is: 

                         

Evidence of broad-based support from the Sponsored TLD Community for the
sTLD, for the Sponsoring Organization, and for the proposed
policy-formulation process; 

 

 From the adult entertainment perspective, ICM has never engaged the actual
community it professes to serve. ICM's weak representation of support
included the results of a Web poll conducted by XBIZ in February 2005.
XBIZ's surveys have no scientific validity and are simply an item of
interest to readers. Moreover, survey participants do not have to be part of
the adult entertainment industry and they can vote multiple times. ICM's
claims of support from the sponsorship community seem wholly self-generated
and self-serving. In light of ICANN's commitment to transparency, FSC also
finds it troubling that thorough reviews of online chat rooms, bulletin
boards, as well as discussions with major and minor producers, distributors,
and retailers with online presence reveal that virtually no online adult
merchants or wholesalers support .XXX . 

 

As for the "proposed policy formulation process," ICM created the
International Foundation for Online Responsibility (IFFOR), an entity that
by its very name insinuates that the adult entertainment community is
irresponsible, an insinuation that is not only insulting, but also is
completely without merit. Moreover, both the selection process for IFFOR and
its ultimate authority are disturbingly vague. ICM intends to create policy
for the adult entertainment industry through IFFOR, about which the adult
industry knows little. For these reasons alone, FSC and the industry cannot
support IFFOR and believe that governance from such an entity would not only
damage the adult entertainment industry, but also stifle its expression and
increasingly robust online presence. 

 

FSC does not agree with the IRP's first finding that, "the ICANN Board
decided on 1 June 2005 that ICM's .XXX sTLD met the sponsorship criteria."
FSC concurs with Dr. Vinton Cerf's testimony after the 2005 Board meeting
that, "At the point where the 

question arose whether we should proceed or could proceed to contract
negotiation, in the absence of having decided that the sponsorship criteria
had been met, the board consulted with counsel [the General Counsel, Mr.
Jeffrey] and my recollection of this discussion is that we could leave
undetermined and undecided the question of sponsorship and could use the
discussions with regard to the contract as a means of exposing and
understanding more deeply whether the sponsorship criteria had been or could
be adequately met.prior to the board vote on the question, should we proceed
to contract, this question was raised, and it was my understanding that we
were not deciding the question of sponsorship. We were using the contract
negotiations as a means of clarifying whether or not.the sponsorship
criteria could be or had been met or would be met." (Tr. 600:6-18, 601:
1-8). 

 

Moreover, FSC does not agree with the IRP's second finding that "the Board's
reconsideration of that finding in 2007 was not consistent with the
application of a neutral, objective, and fair documented policy." FSC
asserts that ICANN was provided with misleading and shoddy data in ICM's
initial claim of support from the sponsorship community- including a
suspicious XBiz "poll." Therefore, when information of .XXX sTLD's lack of
support from the sponsorship community was established by the 2007 ICANN
Board meeting in Lisbon, the Board was not only well within its rights to
deny ICM's request, but also obligated to do so by Section 2 of its Bylaws. 

 

All of these reasons support the findings and conclusions of the IRP
dissent, and so they strongly support current Option 3. However, should
ICANN decide to move forward with options 1 or 2, FSC would like to address
two key elements of the Decision Process. The first option in the process is
to "Apply 2004 round criteria." According to those criteria, the applicant
must show "evidence of broad-based support from the Sponsored TLD Community
for the sTLD." Clearly, this was a key area of concern for ICANN throughout
the application process. But a critical portion of ICM's showing of support
within the sponsored community was received by the ICANN Board at a meeting
without any opportunity for response or evaluation by the community in
question or by other interested groups such as the GAC. Indeed, to this very
day, some of ICM's original showing of support remains confidential and thus
immune from any meaningful review or comment. In keeping with ICANN's
commitment to transparency, FSC urges ICANN to approach the sponsorship
community, the adult entertainment industry, in order to measure anew the
support, or lack there of, for a .XXX sTLD. This could be achieved through a
sponsorship community comment period that requires the commenter to provide
verifiable confirmation that he or she is part of the proposed sponsorship
community. There seems little point and there is much danger in proceeding
with a sponsored TLD which may have initially intrigued a few when it was a
new idea to be thought through but which since that time -- and continuing
to this day -- faces demonstrable and overwhelming opposition in the
supposedly sponsored community. 

 

FSC also rejects ICM Registry's claim that those who pre-registered .XXX
domains with ICM meant to simultaneously register their actual support for
the TLD. We believe that the vast majority of those registrations were
understandably defensive in nature. .XXX was seriously considered as an sTLD
at a time, before plans to vastly expand the gTLD 

domain name space were announced, when many still sought to preserve their
second level domain names across the entire TLD space. FSC also believes
that Lawley misrepresented registration of a domain name as separate from a
show of support. Quoted in a May 30, 2006 XBiz article ICM's CEO Stuart
Lawley insisted, "The reservation period is separate from our appeal and any
lawsuits. We are simply using our resources efficiently while we are in the
appeals stage. We had already built these systems as part of our anticipated
launch, and we also have very skilled staff on hand." Moreover, ICM's
registration process mandates signing onto a statement that states, "Support
XXX-wish to register" (http://www.icmregistry.com/join.html ) with no option
is given for defensive registrants who oppose .XXX. 

 

The second element of the decision process is to apply gTLD criteria. It is
critical in considering this element that the differences between a gTLD and
sTLD be taken into account. As the IRP pointed out in its declaration, "An
unsponsored TLD operates under policies established by the global internet
community directly through ICANN, while a sponsored TLD is a specialized TLD
that has a sponsor representing the narrower community that is most affected
by the TLD. The sponsor is delegated, and carries out, policy-formulation
responsibilities over matters concerning the TLD." Many have suggested that
it is unworkable as a practical matter and dangerous as a policy matter to
establish IFFOR, or any ICANN- related body, with delegated "policy
formulation responsibilities" over sexually explicit expression in a world
where Nations and even many within Nations so deeply differ over that
expression. On the other hand, a gTLD would avoid delegating any "policy
formulation responsibilities" to any ICAAN delegate and thus avoid
ensconcing ICANN in what --we assure you -- has been aptly called the
"intractable" debate over sexually explicit expression. For this reason, FSC
remains open, as it always has been, to the adoption to a .XXX gTLD as part
of the roll out of a multitude of new TLDs into a vastly expanded domain
name space. Under those circumstances, whether ICM or someone else
ultimately administers a .XXX gTLD would be a matter of much less concern to
FSC. 

 

Again, FSC strongly supports and prefers option 3 of the ICANN Options
concerning the Independent Review Panel Declaration. We believe that the
ICANN Board made the right decision in Lisbon for the right reasons, and we
believe that it did so after listening appropriately to all of the relevant
voices. Regardless of the option chosen, FSC asks that ICANN continue to
consider the widespread opposition of the sponsored community in any further
decisions concerning a .XXX sTLD.

 

Diane Duke

Executive Director

Free Speech Coalition

PO Box 10480

Canoga Park, CA  91309

818-348-9373  Fax 818-348-8893

 

Cursing the darkness only delays the dawn 

- Ralph Waldo Emerson