FSC: ICANN Makes No Determination on .XXX

“The ICANN board did not approve .XXX today,” said Diane Duke, executive director of the Free Speech Coalition.

“To the contrary, it passed a resolution that among other things, directs the staff to evaluate whether the ICM application is still current and meets the application criteria today. We believe that it is a standard that will be difficult for ICM to meet. Moreover, if the board is looking to GAC (ICANN’s Government Advisory Committee) for advice, the GAC could not have been clearer in its last communication to the board in 2007 that it thought ICM’s application should be denied. The adult entertainment community is opposed to ICM’s application and the Free Speech Coalition is confident that ultimately the Board will make the right decision.”

Essentially, Duke said, the board resolved that, although they had not made a determination as to whether they agreed with the findings of the majority of the independent review panel, they would accept and act in accordance with some of the panel’s findings.

“It is clear that we made an impact,” Duke said. “ICANN board members were extremely uncomfortable knowing that no support exists for a .XXX sTLD in the sponsoring community.”

FSC Board Vice President Tom Hymes said, “My feeling is that the board is painfully aware of ICM’s threat to sue ICANN, and was forced to pass a resolution that many of the board members feel is at odds with the truth. This is not speculation. At the meeting today, several said as much, and I can only add that I was deeply moved by their courage to do so under the circumstances. I do not fault them for acting to protect their organization, and I believe there are a plenitude of serious obstacles to the ultimate realization of this profoundly flawed application.”

In the board discussion prior to the vote, a number of board members commented on why they felt conflicted about the resolution.

Board member Harald Alvestrand kicked off the discussion, saying, “...effectively this forces me to say that it is in the best interest of the organization (ICANN) and the interest of the furtherance of the organization's goals to act as if something is true that I believe is not, in fact, so. This is a very uncomfortable situation, but I can see no better way to move forward.”

ICANN CEO Rod Beckstrom said that while he accepts the contribution to ICANN's accountability and transparency provided by the existence and the use of the independent panel review process, he is nonetheless concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs.

“In my view as CEO, the board must be able to use business judgment in order to protect the global public interest in the coordination of the root of the Internet and the domain name system,” Beckstrom said.

ICANN developed an internal review process (IRP) as a mechanism for stakeholders to challenge Board decisions. ICM was the first to use the process, which put significant pressure on the board to follow the IRP’s decision or risk losing all credibility in the process. Also, Lawley hinted at a possible lawsuit if .XXX is not approved.

“Avoiding an expensive lawsuit and saving face in the IRP process is good for ICANN but as ICANN’s CEO pointed out, it may not be in the best interest of the ‘global public interest’. In the end, I believe that ICANN will do the right thing,” Duke added.

Both ICANN and ICM’s Stuart Lawley will undergo several weeks of due diligence, checking up on technical and financial promises, then spending another few weeks negotiating the contract.

The contract would then go before the board, which would be expected to decide whether it is consistent with previous advice given by ICANN’s Governmental Advisory Committee.

If the document is GAC-compliant, the ICANN board will vote on the contract itself and either approve or not approve .XXX for use.