Judge Says We Can't Look Inside US .XXX deliberations

It's “Sunshine Week” in Washington, a week devoted to “open government,” but the light came a few days late for ICM Registry and Stuart Lawley, proponents of the .xxx top level domain for adult content. A US court dismissed ICM Registry's litigation to pry more information out of the US government about the pressure it put on ICANN to reject ICM's application to operate the .xxx top level domain. The court decision favoring darkness is posted here.

Using the US Freedom of Information Act, ICM succeeded in getting a lot of embarrassing information about the US government's intervention in the .xxx case. Documents proved that the Commerce Department reversed its position, moving from a favorable opinion of the application and a willingness to let ICANN make its own decision, to concern about its political impact on the Bush administration. The released documents also prove that the reversal in the US position was driven by the lobbying of “religious Right” groups close to the Bush administation.

But the USG was careful to keep certain documents concealed because they touched on the very sensitive issue of US control of the Internet domain name system, the unconstitutionality of interference with freedom of expression, and the degree to which the USG can override the decisions of ICANN.

For example, the court decision mentions:

Documents EP62-EP69: “an e-mail chain and all contain the same redaction of the opinions of Ms. Atwell as to Commerce’s authority to make changes to the authoritative root zone file.”

Documents 000008-000010: “drafts of a document entitled 'USG Opinions for Including .xxx in the Authoritative Root Zone file.'”

Document 000016: “a draft entitled “USG Procedural Options Regarding the Creation of .xxx”

It is clear from these documents that Commerce engaged in a careful explorations of how much authority it had to modify the root zone. It is possible that it considered overruling an ICANN decision.

Also withheld were documents that would have revealed how the USG lobbied the GAC to oppose the .xxx domain.

The case turned on what is, in the larger picture, a legal technicality concerning the US Freedom of Information Act (FOIA). FOIA does not require the release of materials that document deliberation over policy options or the process of formulating policy. The US government claimed that the withheld documents were all “pre-decisional” in nature. ICM contended that the government can point to no legitimate policy that it could have been deliberating with respect to .xxx, and so the deliberative process privilege should not apply. ICM’s position was that the US government’s involvement in ICANN is wholly ministerial. Thus, in ICM’s view, any deliberations regarding such policy are out of scope for the USG and thus constitute a kind of “misconduct.”

The court rejected ICM's argument and upheld the Government's assertions that the withheld documents were not established policies but part of the deliberative process of making policy. The judge wrote: “If the government “leaned on” ICANN or any other decision-maker that it did not directly control, its policy choice to do so is discoverable under FOIA. That choice (if it was made) was not “political abuse,” however, and so the deliberations that underlay it are properly exempt from disclosure.”

This leaves open the issue of whether NTIA's action can be legally challenged on First Amendment grounds. It is clear that the information ICM registry was trying to extract would have provided more of a smoking gun had ICM decided to go for the constitutional challenge.