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ICANN to reconsider .xxx denial

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Why the review is just as important as the decision

Regardless of the decision, the review process itself has been recognized as a crucial step in ongoing efforts to embed an open and multi-stakeholder decision-making body at the heart of the Internet’s domain name system. Under the ICANN model, all those affected by changes in the Internet’s infrastructure – whether governments, business, or individual Internet users – are entitled to an equal say in its evolution. It is especially ironic then that it is the Board’s decision to deny dot-xxx that has been subject to review and rejected.

It was initial approval of the dot-xxx application in 2005 that sparked vigorous opposition from governments, particularly the US government, which had been the focus of a determined campaign by right-wing Christian groups. This proved particularly difficult for ICANN’s management and Board since at the time, governments were debating the organization’s very existence at the World Summit on the Information Society (WSIS).

The review panel’s declaration makes specific mention of an apparent “volte face” in ICANN’s approach to dot-xxx as soon as it received a letter from the US government recommending that the top-level domain not be introduced. This was followed by letters from a number of other countries attacking dot-xxx and led to furious diplomacy on the part of ICANN’s then-president and CEO Paul Twomey, who was put in the impossible position of trying to placate governments while at the same time arguing that ICANN needed to remain independent of government influence.

In the view of acknowledged expert on Internet governance, Professor for International Communication Policy and Regulation at the University of Aarhus, Wolfgang Kleinwächter, the dot-xxx decision came down to these high-level politics. “In my eyes the ICANN Board was afraid to risk a confrontation with the GAC (Governmental Advisory Committee) and in particular the US government.”

Kleinwächter points out that the decision was made while ICANN was still beholden to the US government under their Joint Project Agreement (JPA) – an agreement that was replaced with a more autonomous Affirmation of Commitments (AoC) this November. “I would be interested to see how such a process would work under the AoC framework,” Kleinwächter notes.

Ultimately, ICANN survived the WSIS process and set about fixing holes in its constitution, not least of which was a perceived gap in the organization’s accountability and transparency. One of the key elements of that accountability was the Independent Review Process (IRP), created in December 2002 but unused until ICM Registry filed its complaint in 2007.

As such, the successful conclusion of the first IRP complaint represents the first time that an ICANN Board decision has been reviewed by external experts.

The process wasn’t fast, or cheap, with ICM’s Lawley telling us initial estimates were a factor of nine out. It ended up costing the company $3.5 million and took two years to complete. ICANN’s costs, separate from the $475,000 costs, are expected to top $2 million.

The fact that it was the first use of the IRP process also led to the unusual situation that three of the five issues under discussion were about the process itself.

Ultimately, the panel reached several crucial conclusions: that its declaration should not be considered binding on the ICANN Board, but that the review process itself would not be “deferential” to decisions by the ICANN Board.

The result is that the ICANN Board is free to make whatever subsequent decisions it wants but that it can expect panel reports to be blunt and free-thinking in their assessment.

The panel sidestepped the issue of whether ICANN should be subject to international law (instead of just Californian law) but did decide that the organization should not be entitled to use solely the “business judgment rule” – which would have put a far higher burden of proof on the applicant before a decision can be made in their favor. Instead, ICANN was held to a “good faith” standard.

The result of the whole process is a clear demonstration of accountability at the top level of the Internet. It is now the unenviable task of ICANN’s current Board to determine how to respond to strong criticism of a previous decision, especially since the organization is due to open up applications to many more top-level domains in the next year – something that former chairman Cerf thinks will provoke similar issues to the dot-xxx application. ®

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