"We will pursue this through the courts as necessary," ICM president Stuart
Lawley told reporters. He's invested years and millions of his own money trying
to get the .xxx domain approved.
ICANN's board of directors rejected .xxx with a 9 to 5 vote at a meeting in
Lisbon, Portugal last month. Its president, Paul Twomey, who had helped
negotiate the proposed contract, abstained. Chairman Vint Cerf voted to reject.
Lawley claimed that the two-year process leading up to the vote had been
focused on hammering out the details of the contract under which .xxx would
operate, and yet at the final hour many directors voted against it based on
extra-contractual concerns.
"We got them in a position where their excuses had run out on the contract and
they had to take a deep breath and say we don't want to do it for other
reasons," Lawley said.
"You can't get away with wasting two years and $2m of somebody's time and money
negotiating a contract you have no intention of signing," he added.
As well as the relatively small fees paid to ICANN, ICM had recruited a number
of high-profile attorneys to help fight its cause, including noted civil
liberties lawyer Robert Corn-Revere and former US government official Becky
Burr, who was closely involved in ICANN's very creation in 1998.
Lawley is convinced that pressure from the US government following a
letter-writing campaign by its right-wing religious supporters was responsible
for the domain being rejected. He's currently suing the government for access
to documents he claims will prove this.
"I think that without US government interference in 2005, this would be a
signed contract right now," he said.
In June 2005, ICANN voted to start negotiating a contract with ICM. To some
observers it was implicit, but certainly not binding, that .xxx would
ultimately be approved.
Later that summer, several American "family" groups with a heavily religious
bent got wind of the proposal and started lobbying the US Department of
Commerce, which oversees ICANN, to get .xxx killed.
Government emails released to ICM under the Freedom of Information Act show
that Commerce took this right-wing outrage very seriously.
It does not appear based on current evidence that the US government directly
pressured ICANN's directors, most of whom are not US citizens, to vote down the
.xxx proposal. Lawley says that the US worked through ICANN's Government
Advisory Committee to stonewall and raise enough reasonable doubt to have it
rejected.
That's arguably what ICANN's GAC is supposed to do - provide public policy
feedback from international governments. Any pressuring that went on must have
gone on between government representatives behind the closed doors of GAC
meetings.
The GAC's objections, which are over a year old and have been responded to by
ICM on a number of occasions, comprised four of the five reasons that were
entered into the record at the ICANN meeting for rejecting the .xxx proposal.
"ICM's response does not address the GAC's concern for offensive content, and
similarly avoids the GAC's concern for the protection of vulnerable members of
the community," the ICANN board resolved. "The Board does not believe these
public policy concerns can be credibly resolved with the mechanisms proposed by
the applicant."
ICM's proposal, while specifically not mandating that all adult content should
be restricted to .xxx, did propose some level of oversight of the content that
would end up on .xxx web sites. The 'mandating of content regulation' is a key
sticking point in the squabble.
The ICANN board resolved "there are credible scenarios that lead to
circumstances in which ICANN would be forced to assume an ongoing management
and oversight role regarding Internet content, which is inconsistent with its
technical mandate."
Lawley, at an airport having just arrived back in the US from Lisbon, was
disconnected before he could elaborate on what kind of legal action ICM intends
to take.
An Uninformed View
ICANN may not want or have mandate to regulate content, but some beleive that's
exactly what it just did.
They argue that the .xxx domain was rejected because it was intended for porn
and say other excuses are as disingenuous as they were poorly articulated.
Compare the rejection of .xxx to the approval of .mobi they say.
Several ICANN directors who voted to reject .xxx did so because they believed
there were "credible scenarios" in which ICANN would be forced to answer for
content regulation under .xxx, which is not its mission. Its mission is the
technical stability of the DNS.
They argue that these same directors had no such concerns when they approved
.mobi, which was proposed to voluntarily and unexclusively carry the
content of a mobile phones as a top-level domain. The .mobi domain was approved
despite arguments that it might "break" the spirit of the DNS by using
top-level domains as protocol denominators.
Some directors voted against the .xxx domain because they were not convinced
that ICM had met the ICANN definition of a "sponsored TLD community", but
ultimately this is true: They didn't.
According to ICANN's 2003 request for proposals, a sponsored TLD community
"should address the needs and interests of a clearly defined community...
Precisely defined, so it can readily be determined which persons or entities
make up that community; and Comprised of persons that have needs and interests
in common differentiated from those of the general global Internet community".
ICM's community would have consisted of pornographers. A pretty distinct group
of folk, they argue, but really it is not. 'Adult content, mature audiences,
Rated R, Rated NC-17, Rated X, adult subject matter, sexually explicit
educational content'; where the line is really drawn is murky at best. Some
Republicans you talk to these days would make condoms, line drawings of
genitalia and the word 'abortion' all in the catergory of 'adult, mature,
sexual' and sometimes, 'pornographic' content. So is that .xxx domain material?
The .mobi community by contrast was "restricted" to everybody on the planet who
owns a mobile phone - a higher percentage of the population of Earth than those
who own a PC. The gated community of .mobi ergo has a potentially broader
audience than .com.
Clearly, those making this uninformed arguement, beleive that the excuses used
to reject .xxx were not evenly applied to other newly introduced domains. The
.xxx proposal was rejected, fundamentally, because it was for porn and because
some people are uncomfortable with that kind of thing. This arguement is failed
because it assumes inclusive versus exclusive content presentation that ICANN
cannot and does not want to mandate.
That all being said, several ICANN directors were clearly correct when they
said that, in the real world, many would look to ICANN to enforce .xxx's
content policies, and that this would be a nightmare of epic proportions given
the variety of pornography legislation around the world and the vehemence of
the industry's opponents.
But that still boils down to the fact that .xxx was rejected because it was for
porn. ICANN made a decision to regulate content when it rejected .xxx, even if
it believes otherwise.
On the flipside, it should also be noted that .xxx was not and is not ICM's
birthright. Stuart Lawley is an entrepreneur businessman with no history in,
and far from unanimous support from, the porn business. He and his company
stood to gain financially from a .xxx approval. If it ever ends up on the
internet, it will be a lucrative business.
ICM took an expensive gamble, investing millions in an ICANN process that so
often appears arbitrary. It was a gamble that did not paid off. Not yet,
anyway.
An Informed View
ICANN is not intended or empowered to regulate content. So the argument that
the .xxx domain's rejection was an act of regulation can only be made by those
who are techincally shortsighted.
Yes the .xxx domain was proposed to be a domain of adult content - but not the
'exclusive' domain of porn. So this is why the religious conservatives
objected, because it would create a TLD dedicated to pornography and thus 'more
porn.'
The shortsighted argue that the domain would 'compartmentalize' porn to only
the .xxx domain (thus making it easier to filter). This could not be further
from the truth because this is actually where the actual 'content regulation'
issue would have take place - ICANN can not regulate what content is on a .com
versus .xxx under the current rules.
So then do we really assume that an adult website like Playboy.com is going to
suddenly give up all the marketing, internet optimization and advertising that
they put into .com? Of course not and this is why .xxx would simply add more
porn, by having adult websites rush to register their .xxx domains to protect
domain and trade names from squatters. Meanwhile adult sites would likely do
little other than duplicating the content (via forwarding links), on to the new
.xxx domain. There is little chance that without mandate that Playboy.com is
going to abandon the .com and 'move' to .xxx voluntarily; futhermore the legal
wars over being forced to abandon Playboy.com to a 'non-adult' web operator
would boggle the minds of intellectual property experts.
The final ICM issue and their arguments are moot other than financial gain they
were counting on. Stuart Lawley could care less about safer internet in this
regard because it would not be the result. The only result would be a rush of
adult content providers to register their domains under the .xxx TLD and a
financial windfall for ICM.
Again, Mr Lawley not yet, and hopefully never.
Editor's note: Though some organizations seem to struggle to define Asian Sex
Gazette as 'news', 'adult', and/or 'porn' we'd unhappily register our .xxx
domain simply for trade name protection, but would not move there unless
forced. That would only happen after a lawsuit arguing that just because we are
'mature' content does not mean we are 'adult' content.
