Why ICANN's Approval of the XXX domain is an important precedent

The 7 year old saga of the XXX top level domain ended, more or less, on Friday March 18. And as luck would have it, the story turned out to have a happy ending. If you read the ICANN Board's rationale for its decision, and can make sense of the legal and process details, there is an abundance of good precedents and good news. The only blemish is that only 9 Board members voted the right way: 3 voted no and 4 abstained, two due to conflict of interest issues.

The decision is important because of what it means for process and institution-building in Internet governance. The best part of the decision is the Board's uncompromising willingness to accept and act upon the Independent Review Process's decision. That decision slapped ICANN on the wrist for its actions in 2005-2007, when the US government, hounded by religious conservatives, threatened ICANN and tried to get GAC to kill the domain. In its explanatory memo, ICANN said that its decision “gives the ICANN community renewed confidence in ICANN’s commitment to accountability and to adhering to its processes” Yes, it does.

The decision is also notable because ICANN refused to be intimidated by GAC advice that emphasized emotion rather than reasons. The GAC tried to scare ICANN into taking the heat for vetoing XXX even when the GAC itself could not agree to advise against it. The GAC said, in effect, “a lot of governments really don't like this, and none of us really support it,” but its advice cited no legal basis against it and stopped short of directly advising against it. The implication was that the Board should do the dirty work.

The Board would have none of this. It noted that “Active support of the GAC [was] not a required criteria in the 2004 sTLD round” and the Board was committed to following only stated criteria in making its decision. It went on to note that its decision to approve .XXX did not, in fact, contradict GAC's advice: “this is not advice from the GAC either to delegate .XXX or to not delegate .XXX, and therefore the decision to delegate .XXX is not inconsistent with this advice.” That's very good; it called the bluff. If the GAC wants to influence a decision it had better come up with strong, sound and rule-based advice, and not rely on intimidation and implication.

An even more important aspect of this decision is that ICANN soundly rejected the idea that we should pre-censor domains in order to prevent governments from blocking them. The Board noted: “The issue of governments (or any other entity) blocking or filtering access to a specific TLD is not unique to the issue of the .XXX sTLD. Such blocking and filtering exists today. While we agree that blocking of TLDs is generally undesirable, if  some blocking of the .XXX sTLD does occur there's no evidence the result will be different from the blocking that already occurs.”

What a wonderfully concise dismissal of the nonsense promulgated by the GAC and some misguided folk in the technical community. The idea that it is somehow better for the Internet to use centralized, global administrative mechanisms to block domains from existing in order to prevent a few individual countries from using technical means to block them locally is absurd and dangerous, and deserves to be consigned to the dustbin once and for all. I am thrilled that the Board has seen through this.

The only question remaining now is whether the XXX top level domain will actually be placed into the root by the U.S. Commerce Department. Frankly, I am not worried. The Commerce Department claims that it will not abuse its role at gatekeeper to the root but is holding on to that power simply in order to ensure stability. Because ICANN has followed its criteria and process in this case, including giving due consideration to GAC advice, there is no basis for the U.S. to refuse. This, too, will be a key test as to whether the whole ICANN system works properly. If the U.S. goes crazy and interferes with XXX's entry into the root it will completely kill ICANN and open a Pandora's box for governmental control of the DNS, a box that will never be closed. There should be no doubt about the effects of that. I don't think the Commerce Department is going to do that.

Ultimately, this decision is not about whether one is for or against pornography, or favors or opposes the idea of an .XXX domain. Registration and use of the domain is completely voluntary, so the fate of .XXX should be settled by the marketplace. As I said before, it's about institution-building. XXX is a significant issue because it tests whether ICANN is a coordination regime focused on keeping the Internet DNS growing and working properly, or a chokepoint where various parties try to control what the rest of us can see or think.

[Update: If you'd like to hear each Board member's comments leading up to the vote, Joly MacFie of ISOC-NY has put together a nice compilation.

00:00 Peter Dengate Thrush - Chair 

04:37 Bruce Tonkin (abstain) 

05:17 Ram Mohan (abstain)

05:55 Sebastien Bachollet (abstain)

06:46 George Sadowsky (oppose) 

17:30 Katim Touray (oppose)

20:28 Bertrand de la Chapelle (in favor)

26:02 Erika Mann (in favor) 

27:50 Raymond A. Plzak (in favor) 

29:03 Kuo-Wei Wu (oppose)

29:53 Steve Crocker – Vice Chair (in favor) 

31:28 Rita Rodin Johnston (in favor) 

35:34 Suzanne Woolf – RSSAC Liaison (technical) 

36:48 (Vote) 

37:56 Rob Beckstrom – CEO (abstain)]