.xxx registry sues US government

The company behind the unsuccessful bid for a new .xxx domain for internet pornography, ICM Registry, has embarked on a legal fight-back.

ICM will file a suit against the United States Department of Commerce in the Washington district of Columbia later today, in order to gain access to information withheld by the department in a Freedom of Information Act (FOIA) request made back in October 2005.

That information will provide the "extra evidence that provides the irrefutable proof" that the United States government intervened in the issue to prevent .xxx going ahead, ICM Registry head Stuart Lawley told us. If true, it would also contradict public statements made by the Department of Commerce (DoC) that it "plays no role" in the day-to-day running of the internet.

There is already significant evidence in the 1,600 documents provided under the Act that the United States government lobbied hard against .xxx, having come under significant pressure from domestic right-wing Christian groups, to the extent that it actively solicited other governments to complain against .xxx and even threatened to overrule internet overseeing body ICANN if it did agree to the internet registry. But of those 1,600 documents, 120 pages contain "redactions" i.e. blanked out text, with 98 blank in their entirety.

The DoC justified removing the information by claiming it was "predecisional or privileged". But ICM claims in its lawsuit that this defence is only applicable if ICANN "is an administrative agency of the federal government and/or is under DoC control". As a result, the lawsuit will put the relationship between ICANN and the US government under the microscope on the same day that an international meeting of the Internet Governance Forum (IGF) meets in Geneva to discuss problems with the existing internet.

That forum was formed after a World Summit in Tunisia last November in which the US retained control of the internet, but only after assuring world governments that it had a hands-off approach.

ICM's appeal against the redactions was made on 2 December 2005, but the 20 day response time has been constantly extended by the DoC without explanation. When it learnt ICANN was due to vote on the .xxx domain on 10 May, ICM sent a letter stating it would take the DoC to court unless the appeal was responded to before the vote took place.

There was again no response and, in the end, ICANN's Board voted nine to five against .xxx, with both chairman Vint Cerf and CEO Paul Twomey crucially changing their previous stances. Lawley told us he wasn't sure what is contained in the blanked-out text, but felt confident it would show the extent to which the US government interfered with what was supposed to be an independent process.

It's not just Lawley that is unhappy about the role of the US government, however. European commissioner for information society and media, Viviane Reding, has already gone on record complaining about the "first clear case of political interference in ICANN" by the US government. ICANN's own directors have expressed similar concerns.

One, Susan Crawford, wrote on her personal blog: "We should not run the risk of turning ICANN into a convenient chokepoint for the content-related limitations desired by particular governments around the world."

Another, Veni Markovski, opined: "I hope that our decision will not be interpreted as governments dictating ICANN what to do."

ICANN CEO Paul Twomey has called the claims of US government interference both "unfounded and ignorant" and, later, "ill-founded and surprising". But Twomey, both as head of ICANN and as the former chairman of ICANN's Governmental Advisory Committee (GAC), stands at the very heart of the controversy.

The existing DoC internal documents and emails - which ICM Registry is due to make available in their entirety on its website today - demonstrate that the department was extremely concerned about the pressure from the Christian pressure groups, which included the Family Research Council, Concerned Women for America, and American Family Association.

It closely monitored both press reports of the .xxx issue and the volume of mail it received concerning the registry. A letter sent by the then commerce secretary Michael Gallagher on 11 August 2005 to both the CEO and chairman of ICANN requesting that a planned vote on .xxx be delayed, was forwarded to other governments who were encouraged by the DoC's GAC representative within ICANN to send similar letters.

In an effort to distance itself from US influence, ICANN crucially delayed recognition of Gallagher's letter for four days, despite copies of it being widely available that same day, and solicited a letter from GAC chairman Mohamed Sharil Tarmizi in which he expressly noted that "sovereign governments are also free to write directly to ICANN about their specific concerns".

Soon after, the FOIA documents reveal, Tarmizi wrote to the DoC. "I am just wondering if you could share with me how far the USG is going to take the issue? I need to know what the acceptable future course of action might be so that we can do some strategising."

When the .xxx issue was due to be decided at an ICANN meeting in Vancouver more than three months later, commerce secretary John Kneuer unexpectedly flew in and met with ICANN chairman Vint Cerf. Shortly afterwards, Cerf stunned a meeting of ICANN's GAC on 29 November when he said the issue had been taken off the board's meeting agenda so it was able to properly review a report that had been released months earlier, on 31 August.

After further delay at ICANN's next meeting in New Zealand in March, an executive committee of ICANN decided on 1 May that it would vote on .xxx at a board meeting nine days later. In those nine days, another series of letters between Twomey, ICANN lawyer John Jeffrey, and GAC chairman Sharil, sealed the fate of the .xxx domain.

Lawley says his motivation for the lawsuit is to expose double-dealing at the heart of the internet. "Our story needs to be told," he said. "We've been done wrong. I think what's going on here is already clear, but I want the extra evidence."

ICM Registry has also filed a reconsideration request with ICANN claiming that the board voted on inaccurate information, were unaware of the "inappropriate involvement of the United States government in this process", and had been misled by Twomey and Jeffrey in relation to contract negotiations with ICM. That request will be reviewed by four of ICANN's directors, three of whom voted against .xxx last week. ®