You mentioned “IRT” twice in the final paragraph, instead of IRP (which you got right in the first sentence. The “IRT” is something entirely different (“Implementation Recommendation Team”, the widely criticized cabal of TM attorneys who came up with the URS, etc. for new TLDs).

George, the two “IRT” references have been corrected to read “IRP”.

Thank you

Rod, I represented ICM Registry in connection with its application, and testified in the arbitration hearing in September. I appreciate your prompt posting of the IRP Declaration. It is disappointing, however, that your recitation of the “key points” arising from the Declaration fails to mention that a panel of extraordinarily distinguished jurists found that ICANN’s handling of the ICM application violated ICANN’s bylaws and its obligation of good faith under international and California law. The Declaration is not a testimant to ICANN’s enhanced accountability – what matters is how the Board and ICANN’s new leadership respond to the Declaration. I sincerely hope that ICANN and its new leadership seizes this opportunity to demonstrate its commitment to meaningful accountability.

Rod –

Your quick reaction to the Independent Review Panel’s decision on .xxx is to be commended. Even more commendable will be a decision by the ICANN Board to continue to restore ICANN’s eroded credibility, already much enhanced under your leadership, by honoring its commitments, its bylaws, and its processes.

I write as one of many to whom the idea of .xxx makes little sense (see Is .xxx Ever Really Dead?). My personal feelings, however, are beside the point — ICANN needs to follow its rules and bylaws.

ICANN could, no doubt, find reasons to wriggle out of its obligations, but that would be a mistake. Now is the time to show that the fair and just application of its bylaws and program-specific rules, without fear or favor, is how ICANN will operate. The only way to do this is to accept the Independent Review Panel’s decision. The ICANN Board should demonstrate to the world that the unfortunate legacy of half-truths and subversion of process, left to it by its previous administrations, is finally ended.

The argument used against .xxx — that ICANN shouldn’t get involved in regulating Internet content — is fallacious, because by its rejection of .xxx in 2006, ICANN did just that. If governments want to censor content, that is within their power — the .xxx TLD might even make that easier — but regulation of content is not within ICANN’s remit. Furthermore, the fact that government meddling was clearly behind the Board’s 2006 decision to reject .xxx makes it even more imperative for ICANN to clear the air and approve .xxx.

Those who fear the effects of pornography on the Internet should note first of all that .xxx will neither increase nor decrease its prevalence, and second, that the rules for the new gTLD program are carefully crafted to allow governments and other parties an opportunity to object to TLDs that they find troublesome.

The rules for creation of TLDs were different in 2006 than they are for the new gTLD program now under consideration. I believe the new rules are much improved: ICANN has learned from the 2006 round. Nonetheless, ICM Registry applied for .xxx in good faith under the previous rules, and ICANN needs to consider .xxx under the rules in place at the time, to honor its commitments, and to set a standard for fairness and openness that will give it much-needed credibility as it makes decisions on global Internet policy in years to come.

There can be no better summary of the issues and why they matter than former Board member Susan Crawford’s dissenting remarks following the 2006 decision to reject .xxx. They should be required reading for ICANN Board members as they consider their responsibilities to the Internet.

Sincerely,

Antony Van Couvering
Minds + Machines

Rod

I don’t want to criticize the decision making process and it is good that the accountability mechanisms work, but if the reports about ICANN being put under pressure by various governments & lobbies regarding .XXX, I have to wonder who will ultimately pay for the costs for this arbitration. Will those costs of about US$ 750k – in my opinion costs of litigation/arbitration caused by lobbying and government pressure – be ultimately paid for by ICANN-registrars who may or may not pass the costs on to customers (=domain-registrants)?

Also what steps will be taken so that such a thing will not happen again in the future – I don’t mean the reconsideration of the proposed .XXX top-level domain, but a costly and according to some media reports avoidable revision procedure like this lost arbitration?

Sincerely,
Thomas Moroder
ICANN accredited registrar Own Identity, Inc.

As an ICANN-Accredited Registrar, I have some concern about ICANN’s position that the IRP’s decision is not binding.

In the Registrar Accreditation Agreement, section 5.6 entitled “Resolution of Disputes Under this Agreement” , ICANN requires Registrars to use Arbitration to settle a dispute with ICANN. However, if ICANN is going to take a position that such decisions are not binding on itself, how will ICANN be held accountable to Registrars (and other stakeholders)?

Yours Truly,

Thomas Barrett
President
EnCirca, Inc
http://www.encirca.com

ICANN’s accountability at the crossroads

In my professional practice as a consultant for new gTLDs for municipalities as well as for corporations I am frequently asked by executives if in the upcoming new gTLD round some of the applicants may face the same fate as .xxx did. One overarching issue for all my dialog partners still is whether the gTLD process will eventually lead to an application window or whether it still can be stopped altogether. Another issue concerns the influence of governments and trademark laws on the application process and filed applications and the protection of an approved gTLD against political forces. Since we all are living with the .xxx case in mind, it is not easy to persuade intelligent people that ICANN will stick to its own rules this time.

My hope, and I think the hope of the majority of people within the Internet community is that by adding the .xxx TLD to the root ICANN’s accountabilty will be finally restored. Today, ICANN is clearly at a crossroads regarding the new gTLD process as well as other important topics.

Dirk Krischenowski
Founder and CEO of the .berlin top-level domain

Rod,

Firstly, thank you for making the ruling of the IRP public so quickly. Much appreciated in the interests of transparency and accountability.

I hereby enclose the text of my letter sent to Peter Dengate-Thrush on the 25th February which, I am sure, will appear on your correspondence page in due course.

I look forward to meeting with you in Nairobi to discuss this very important matter:

February 25, 2010

Mr. Peter Dengate-Thrush
Chairman of the Board of Directors
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, California 90292

Re: Declaration of the Independent Review Panel in ICM Registry, LLC vs. ICANN

Dear Peter,

I sincerely hope you share my view – and the view expressed by so many others in the past week – that the completion of the first ever Independent Review Process following the issuance of the Panel’s recent ruling is a defining moment for ICANN. The decision of the panel that ICANN, in light of its founding history and global responsibilities, must operate in conformity with relevant principles of international law, in addition to the laws of the State of California, and that its actions are subject to objective review under the Independent Review has significance for ICANN that reaches well beyond the facts of the dispute between ICM and ICANN. I am hopeful, as are others in the community, that ICANN will embrace the conclusions of the Panel and use them to improve its processes and restore confidence in ICANN as an institution.
You will no doubt recall the views you expressed in Lisbon nearly three years ago when the Board voted to reject ICM’s application. Similarly, the Panel has (1) ruled that the ICANN Board conclusively determined on June 1, 2005 that the ICM application met the criteria that were established for the 2004 sTLD round and that the Board’s later reconsideration of that decision was “not consistent with the application of neutral, objective and fair documented policy;” (2) identified “grounds for questioning the neutral and objective performance of the Board” during registry agreement negotiations with ICM; (3) concluded that the Board had breached “its obligation not to single out ICM Registry for disparate treatment” in violation of ICANN’s Bylaws, international law, and the law of the State of California. I am writing to express ICM Registry’s sincere interest in working cooperatively with the Board to decisively act at the earliest opportunity on the findings of the Independent Review Panel and to put this dispute, which has consumed so much time and resources of both parties, well behind us.
Assuming, as I do, that the Board takes its obligations under the accountability provisions of the Bylaws seriously and will respect the conclusions of this Panel of preeminent international jurists, we believe that it is now incumbent on ICANN to move expeditiously to execute a registry agreement with ICM for operation of the .xxx top level domain. Further discussion about the merits of the proposal or questions regarding satisfaction of the eligibility criteria established for the 2004 sTLD round would be fundamentally inconsistent with the conclusions of the Panel. Specifically, in light of the fact that the Panel declared that the ICM application met the eligibility criteria (paras. 147, 152), held that the reconsideration of the sponsorship criteria was not consistent with the Bylaws (paras. 149 and 152), and stated its view that after the 1 June 2005 vote, ICANN should have “proceeded to conclude an agreement with ICM on commercial and technical terms, without reopening whether ICM’s application met the sponsorship criteria” (para. 149), any attempt to “reconsider” ICM’s application would be yet another violation of ICANN’s Bylaws in clear contradiction of the findings of the Panel. Nothing in the declaration would justify a decision to reconsider the ICM application in connection with the upcoming new gTLD round, nor is there any principled reason to apply new rules or requirements to a proposal that was already determined to comply with the rules and procedures governing the 2004 sTLD round.
ICM Registry stands ready to execute the registry agreement that was the product of extensive negotiation between ICM Registry and ICANN staff in early 2007, that fully reflected the public policy advice of the Government Advisory Committee, and that was publicly posted for approximately 6 weeks before the ICANN meeting in Lisbon. I am available to meet with you at your earliest convenience and will be attending the ICANN meeting in Nairobi, Kenya, and look forward to meeting with you then, if not before.
ICM has been and remains a strong supporter of ICANN’s private sector led, self regulation of a global resource. We have attempted always to work collaboratively with ICANN for our mutual benefit and shared interests, and we will continue to do so in the future. Accordingly, ICM is not only willing, but eager to close the book on this dispute and turn our energies to the launch of the long delayed .xxx sTLD. ICM is mindful that our patience has not always been rewarded in the past and can see no purpose (other than the expenditure of yet more time, money and effort by both parties) that would be served by delay. Accordingly, and with respect, I hope you will understand that we must protect our rights if it appears that our efforts to work in partnership with ICANN are failing, once again, to bear fruit.
I look forward to meeting with you and working together to implement the plans that have been pending for so many years. And again, I remain eager to discuss the future of .xxx with you at your earliest convenience.
Sincerely,

Stuart Lawley
Chairman

Milton Mueller says: “Governmental opposition to .xxx comes from a hypocritical attempt to appear to be against pornography when we all know that the porn is in existing domains and .xxx actually makes it easier to identify and regulate.”

I believe Dr. Mueller meant to say “self-regulate,” or at least I hope so. Unfortunately, though, it appears as if the question of regulation or self-regulation has become moot for Mueller and others, as has the question of support for .XXX within the industry. If that were not so, he would never have written, “The issue here is whether ICANN adheres to its stated policies in making decisions. In that regard, it doesn’t matter how popular or unpopular .xxx is among various stakeholders.” I beg to differ. It will continue to matter, even if ICANN votes in the affirmative this tomorrow.

As someone who has argued in good faith against the ICM sTLD application for many years, I cannot tell you how disappointed I am to see such statements so blithely expressed. It is comments like these that will only further encourage those of us who have actually have worked for years to promote the “responsible” evolution of adult entertainment to continue to oppose those who would impose their own agenda upon the industry. I put the “R” word in quotes because ICM has taken such pains to define those who support the application as just that, with the clear implication that those who oppose it, and who do not buy in, are by definition irresponsible. This is odious thinking by any standard of democratic thought or philosophy, and ICANN would be well-advised to reject it.

In some ways, of course, the introduction of .XXX now, on the verge of the opening up of the domain space to an unknown but unrestricted number of gTLD, lessens the damage a sole sponsored .XXX would have wrought. For that we can only thank the many conscientious people from the industry who have stood up to express their opposition, as well as the previous ICANN Board, which, as the review panel clearly acknowledged, acted with integrity. “The Panel does not question the integrity of the ICANN Board’s disposition of the ICM Registry application, still less that of any of the Board’s members,” the panel wrote in its report.

The panel also was quite clear that despite pressure from the U.S. and other governments to press the Board to reconsider the question of sponsorship. “It is not possible to estimate just how influential expressions of governmental positions were,” reads the report. “They were undoubtedly very influential but it is not clear that they were decisive. If the Board simply had yielded to governmental pressure, it would have disposed of the ICM application much earlier. The Panel does not conclude that the Board, absent the expression of those governmental positions, would necessarily have arrived at a conclusion favorable to ICM. It accepts the affirmation of members of the Board that they did not vote against acceptance of ICM’s application because of governmental pressure.”

So can we please stop asserting the patently false claim that ICANN folded under pressure by the Commerce Department? It makes sense that Stuart Lawley et al would continue to make that argument, but the claim is simply unfounded, even for the review panel.

The panel also was not at all convinced that ICANN was not within its rights to further question the sponsorship criteria after the June 1, 2005, vote. “While the Panel has concluded that by adopting its resolutions of June 1, 2005, the Board found that ICM’s application met financial, technical and sponsorship criteria, less clear is whether that determination was subject to reconsideration. The record is inconclusive, for the conflicting reasons set forth above in paragraphs 63, 65 and 66 (on behalf of ICM) and paragraph 149 (on behalf of ICANN). The Panel nevertheless is charged with arriving at a conclusion on the question.” The panel then arrived at a conclusion based on narrow technical grounds, citing the Carthage RFP resolution. Hardly an unambiguous ruling.

Needless to say, I do not agree with the panel’s conclusion that the ICM application met sponsorship criteria prior to the June 1, 2005, vote, but that’s just my opinion. I cannot prove it. All of the “evidence” in support is confidential. This has always been the case with respect to those who ICM claims have supported (and still support) the application. All except for one. To date, I believe I am the only person ICM has chosen to ‘out,’ when it made public in 2007 a letter I sent to ICM president Jason Hendeles in Feb. 2004, stating that if .XXX was approved I would consider being on the IFFOR Board.

That letter was provided on the sole condition that it not be shown to ICANN or used in the application process, which Hendeles knew I opposed when I wrote it. Stuart, who called me at home in early June, shortly after I had joined the Free Speech Coalition, also knew my position. In fact, it was during that very call that I reiterated the fact that they were forbidden from using my letter to support the application, and I also said I had changed my mind and would not serve on IFFOR, no matter what happened. ICM did use my letter to support its application and in fact had it posted to the ICANN website for all to see, which is ironic considering its current argument to the review panel regarding good faith by ICANN.

I had told all of my colleagues about the Feb. 2004 letter already, so ICM’s illegitimate and fraudulent use of it did not harm me in the ways I believe it was intended, except for the fact that it was used to further an application which both Hendeles and Lawley knew back in 2004 that I opposed. I also now question whether others who demanded the same promise that their letters not be shown to ICANN were likewise illegitimately used. The problem with all of this, of course, is that ICANN has said many times over the years that it does not have the resources to determine the accuracy of any of the sponsorship claims, and time and again has simply taken ICM’s word for it. This is, unfortunately, one of the profound flaws in the sponsored application process, which the .XXX application clearly exposed. That otherwise thoughtful people like Dr, Mueller would simply sweep that fact under the rug has to be of concern to anyone who takes ICANN’s responsibilities seriously.

To conclude, I will simply repost here my submission during the ICANN pubic comment period that took place in May 2006, a comment period ICM would now remove from the history books. Indeed, if the current board votes tomorrow to proceed as if everything after June 1, 2005 never happened, it will set a horrible precedent. You simply cannot muzzle that many people and businesses and hope to get away with it.

I would add that the issues that face us today are simply too important for ICANN to allow ICM to create further divisions in an industry that faces ever-increasing censorship around the world. Those of us who actually do work to protect the right of all people to express themselves freely are increasingly alarmed by what we see happening. We have children, too, and care about their safety as much as anyone, but stifling speech—especially sexual speech—is hardly the way to accomplish that goal.

My comments to the ICANN Board from 2006:

“Dear ICANN Board,

I was told in Wellington by ICM Registry that ICANN will not approve .XXX in
Marrakesh for fear of offending a Muslim host nation? If that is true, is it not an excellent argument for rejecting .XXX? How can you approve a TLD that cannot even be mentioned in one of your member countries? What sort of craziness is that? Please, ICANN, do not approve this application. Everyone makes mistakes. Only fools build on those mistakes by not recognizing and correcting them before more damage is done. You will be forgiven for backing down from an ill-conceived original decision, but you most assuredly will not be forgiven for remaining loyal to it. A business plan that will make a few people rich is not reason enough to segregate adult speech. What will you say when these domains are filtered out at the ISP level, and adults are forced to “register” with those ISPs to receive them? Or will you not respond at all because it is not in your mandate to consider such things? I say that you must begin to consider the unintended consequences of your actions.

ICANN also must recognize the problem with having no provision for overseeing the sponsored TLD application process to make sure that applicants behave ethically when gathering support. I spoke in New Zealand with the ICANN staff member responsible for the sponsored application process, and she told me herself that ICANN does not have the resources to follow up on how applicants acquire support. So how do you know if the application process has become corrupted? Apparently, you do not. I suggest that it is your responsibility to make sure that an applicant being granted the lucrative right to control a TLD should be vetted not only as to technical and financial criteria, but also and as importantly as to whether their methods of gaining support within the sponsor community can withstand ethical scrutiny. Without that safeguard in place, no sponsored applications should be approved.”

Tom Hymes
Los Angeles

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