ICANN orders re-evaluation of dot-gay

But it may still not be gay enough

ICANN has ordered that the application for the dot-gay top-level domain be re-evaluated after 54 letters in support of it "inadvertently" fell through the cracks.

Controversially, the application was rejected last year for not being gay enough. The independent evaluators argued, peculiarly, that since a large number of gay people were not public about their sexuality that the application – which would require people to go through a gay organization to register a dot-gay domain – was not sufficiently broad enough.

The re-evaluation decision [PDF] by ICANN's reconsideration committee will see a new team from the same evaluator – the Economic Intelligence Unit (EIU) – review the application to see whether it meets the criteria for a "community" application and so is given precedence over other applications for the same name.

While the decision has been heralded as a victory, the reality is that the review has been so tightly defined that the new evaluation team would have to approach the application completely differently to reach a different conclusion.

ICANN's reconsideration committee – made up of Board members – continues to reject any complaint about the organization's processes unless there is absolutely no question a mistake was made. This decision was no different. The only change, if the decision is followed closely, will be that a block of 54 letters supporting the dot-gay application are verified. That in itself will not give the application sufficient additional points to pass evaluation.

Relying on the formulation that only something "that could comprise a policy or procedure violation" is within the bounds for reconsideration, ICANN rejected a long list of complaints from the applicant, including about ICANN's refusal to provide it with information that would allow it to create a stronger case against the evaluator's actions.

Range of issues

Those complaints included the fact that ICANN failed to provide the EIU with information about what the applicant says were erroneous letters of opposition (ICANN notes there is nothing that obliges it to do so); that the EIU used an Oxford English Dictionary definition of "gay" to determine what the term really meant; that the evaluators did not go back to the applicant and ask any clarifying questions (again, it is not obliged to do so); that the evaluators found the applications for "radio" and "hotel" met community criteria even though, arguably, they are far less of a "community" in the normal use of the term; and a range of other concerns.

Most disturbingly, ICANN found that it had not done anything wrong by refusing to provide details to the applicant of its conversations with the EIU over the application. The determination of whether to release the information was made by the very people that had produced it. And they decided that "the potential harm did outweigh the public interest in the disclosure of certain documents" and so did not release it.

In other words, ICANN's staff decided that they should not release information that they had created because it would damage their own case for dismissing the complaint. And ICANN's Board committee supported that decision because that is the process that the staff themselves drew up.

It's not hard to see why the internet community is concerned about the organization's accountability.

Additionally, it is not clear whether the applicant will be allowed to provide any additional information to the new evaluation team. Spokesman for dotGay, Jamie Baxter, told us that they had no clarity over the issue and would be asking ICANN about it when the organization meets in just over a week in Singapore.

This is far from the first complaint and request for reconsideration that ICANN has received over the EIU's evaluation efforts.

Notably, the applicant for three domains – dot-inc, dot-llp and dot-llc – has already been through the reconsideration process, and several iterations of ICANN's final review process, the Independent Review Process (IRP).

Earlier this month, ICANN was prevented from auctioning off those domains to the highest bidder by an emergency panelist. ®


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