The ICANN Board voted today 9-5, with Paul Twomey abstaining, to reject a proposal to open .xxx. This is my statement in connection with that vote. I found the resolution adopted by the Board (rejecting xxx) both weak and unprincipled.

I am troubled by the path the Board has followed on this issue since I joined the Board in December of 2005. I would like to make two points. First, ICANN only creates problems for itself when it acts in an ad hoc fashion in response to political pressures. Second, ICANN should take itself seriously as a private governance institution with a limited mandate and should resist efforts by governments to veto what it does.

Role of the Board

This decision, whether to admit a particular non-confusing, legal string into the root, is put before the ICANN Board because (1) we purport to speak on behalf of the global internet community and (2) the U.S. Department of Commerce defers to the judgments of that community when deciding what to tell its contractor to add to the authoritative root zone file.

As a Board, we cannot speak as *elected* representatives of the global internet community because we have not allowed elections for Board members. This application does not present any difficult technical questions, and even if it did we do not as a group claim to have special technical expertise. So this is not a technical stability and security question. It seems to me that the only plausible basis on which the Board can answer the question in the negative (“a group of people may *not* operate and use a lawful string of letters as a top level domain”) is to say that the people affected by this decision have a broadly shared agreement that the admission of this string to the root would amount to unjustifiable wrongdoing. Otherwise, in the absence of technical considerations, the Board has no basis for rejecting this application.

Let me explain. The most fundamental value of the global internet community is that people who propose to use the internet protocols and infrastructures for otherwise lawful purposes, without threatening the operational stability or security of the internet, should be presumed to be entitled to do so. In a nutshell, “everything not prohibited is permitted.” This understanding, this value, has led directly to the striking success of the internet around the world.

ICANN’s role in gTLD policy development is to seek to assess and articulate the broadly shared values of the internet community. We have very limited authority and we can only speak on behalf of that community. I am personally not aware that any global consensus against the creation of an .xxx domain exists. In the absence of such a prohibition, and given our mandate to create TLD competition, we have no authority to block the addition of this TLD to the root.

It is very clear that we do not have a global shared set of values about content online, save for the global norm against child pornography. But the global internet community clearly *does* share the core value that no centralized authority should set itself up as the arbiter of what people may do together online, absent a demonstration that most of those affected by the proposed activity agree that it should be banned.

Process

More than three years ago, before I joined the Board, ICANN began a process for new sponsored top level domains. As I have said on many occasions, I think the idea of “sponsorship” is an empty one. *All* generic TLDs should be considered “sponsored” in that they should be able to create policies for themselves that are not dictated by ICANN. The only exceptions to this freedom for every TLD should be, of course, the (very few) global consensus policies that are created through the ICANN forum. This freedom is shared by the country code TLDs.

Notwithstanding my personal views on the vacuity of the “sponsorship” idea, the fact is that ICANN evaluated the strength of the sponsorship of xxx (the relationship between the applicant and the “community” behind the TLD) and, in my view, concluded that this criteria had been met as of June 2005; ICANN then went on to negotiate specific contractual terms with the applicant.

Since then, real and “astroturf” comments (filed comments claiming to be grassroots opposition that have actually been generated by organized campaigns) have come in to ICANN that reflect opposition to this application. I do not find these recent comments sufficient to warrant re-visiting the question of the “sponsorship” strength of this TLD which I personally believe to be closed.

No applicant for any “sponsored” TLD could ever demonstrate unanimous, cheering approval for its application. We have no metric against which to measure this opposition, and thus we have no idea how significant it is. We should not be in the business of judging the level of market or community support for a new TLD before the fact. We will only get in the way of useful innovation if we take the view that every new TLD must prove itself to us before it can be added to the root.

It seems to me that what is meant by “sponsorship” (a notion that I hope we abandon) is to show that there is enough interest in a particular TLD that it will be viable. We also have the idea that registrants should participate in (and be bound by) the creation of policies for a particular string. Both of these requirements have been met by this applicant. There is clearly enough interest (including more than 70,000 pre-registrations from 1,000 or more unique registrants who are members of the adult industry), and the applicant has undertaken to us that it will require adherence to its self-regulatory policies by all of its registrants. To the extent some of my colleagues on the board believe that ICANN should be in the business of deciding whether a particular TLD makes a valuable contribution to the namespace, I differ with them. I do not think ICANN is capable of making such a determination. Indeed, this argument is very much like those made by the pre-divestiture AT&T when it claimed that no “foreign attachments” to its network (like answering machines) should be allowed, in part because AT&T asserted there was no public demand for them. The rise of the internet was arguably made possible by allowing many “foreign attachments” to the network - called modems.

We established a process for sTLDs some time ago. We have taken this applicant through this process. We now appear to be changing the process. We should not act in this fashion.

Politics

Discomfort with this application may have been sparked anew by (1) the letter from individual GAC members Janis Karklins and Sharil Tarmizi (to which Amb. Karklins has told us the GAC acceded as a whole by its silence), and (2) the letter from the Australian government.

I am not at all opposed to receiving advice from the Government Advisory Committee. But the entire point of ICANN’s creation was to avoid the operation of chokepoint content control over the domain name system by individual or collective governments. The idea was that the US would serve as a good steward for other governmental concerns by staying in the background and overseeing ICANN’s activities, but not engaging in content-related control. Australia’s letter, and concerns expressed in the past by Brazil and other countries about xxx, are explicitly content-based and thus inappropriate, in my view.

If, after creation of an xxx TLD, certain governments of the world want to ensure that their citizens do not see xxx content, it is within their prerogative as sovereigns to instruct internet access providers physically located within their territory to block such content. Also, if certain governments want to ensure that *all* adult content providers with a physical presence in their country register exclusively within xxx, that is their prerogative as well. (I note that such a requirement in the U.S. would violate the First Amendment to our Constitution.) But this content-related censorship should not be ICANN’s concern, and ICANN should not allow itself to be used as a private lever for government chokepoint content control by making up reasons to avoid the creation of such a TLD in the first place. To the extent there are public policy concerns with this TLD, they can be dealt with through local law. Registration in (or visitation of) domains in this TLD is purely voluntary.

If ICANN were to base its decisions on the views of the Australian (or US, or Brazilian) government, ICANN would have compromised away its very reason for existence as a private non-governmental governance institution.

Conclusion

I continue to be dissatisfied with elements of the proposed xxx contract, including but not limited to the “rapid takedown” provision of Appendix S,¹ which is manifestly designed to placate trademark owners and ignores the many due process concerns that have been expressed about the existing UDRP. I am confident that if I had a staff or enough time I could find many things to carp about in this draft contract. But I am certain that if I complained about these terms my concerns would be used to justify derailing this application for political reasons. I plan, therefore, to turn my attention to the new gTLD process that was promised for January 2007 (a promise that has not been kept) in hopes that we will someday have a standard contract and objective process that can help ICANN avoid engaging in unjustifiable ad hoc actions. We should be examining generic TLD applicants on the basis of their technical and financial strength, and we should avoid dealing with “content” concerns to the maximum extent possible. We should be opening up new TLDs. I hope we will find a way to achieve such a sound process in short order.

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1. “5. Rapid Takedown. Analysis of UDRP disputes indicates that the majority of UDRP cases involve obvious variants of well-known trademarks. ICM Registry does not believe that the clearest cases of abusive domain registration require the expense and time involved in traditional UDRP filings. Accordingly, ICM Registry will institute a rapid takedown procedure in which a response team of independent experts (qualified UDRP panelists) will be retained to make determinations within 48 hours of receipt of a short and simple statement of a claim involving a well-known or otherwise inherently distinctive mark and a domain name for which no conceivable good faith basis exists. Such determinations will result in an immediate termination of resolution of the domain name, but will not prejudice either party’s election to pursue another dispute mechanism. The claim requirements will be modeled after the Digital Millennium Copyright Act. (ICM welcomes IP community input on this procedure.)”