What’s going to happen this week on .XXX? Nairobi is the first public board meeting since the independent review panel’s nonbinding declaration in February that ICANN acted against its own rules in refusing to go ahead with .XXX. Reports that ICANN is going to ‘do something’ about .XXX have gone around the world via BBC news, and even surfaced on the radio in rural Ireland. The ICM team are out in force here in Nairobi, and there is endless speculation about what will happen at the Board’s meeting on Friday.
ICM has no interest in being fobbed off with an invitation to join the new gTLD application process. That process is horribly delayed, of still uncertain timing and outcome, and would expose ICM to immediate competition from other porn-related TLDs. ICM has assiduously played by the rules and understandably does not wish to go to the back of the queue.
This could go one of two ways. First and most likely, the Board will fulfill its legal obligation to consider the panel’s decision by having, and being seen to have at its public meeting on Friday, a discussion of the ruling. Then, perhaps regretfully, it will punt on any action by adopting some sort of delaying mechanism. One way to buy time and maybe even some credibility would be for the Board to put the 2007 registry contract with ICM out for another round of public comment. ICM says it will take legal action if there’s any delay, though this might be hard to justify if it’s ‘just one more’ round of public comment.
The second possibility is that the Board simply directs staff to execute the 2007 registry contract with ICM. This could and should happen. The US administration has changed and is no longer as beholden to the religious right. The remaining opposition within the GAC is likely quite isolated and far more concerned about new gTLDs in general. .XXX has been a thorn in the Board’s side for several years, undermining ICANN’s credibility and costing both parties around $6 million dollars. It can’t go on. In arguments for ‘not now’: it would be a dramatic step that repudiates ICANN’s past actions. The 2007 contract may no longer be fit for purpose. No one wants to be the host city or the CEO to open up the floodgates to yet more porn on the Internet.
Like any long running disagreement, the facts and sequence of events are in dispute. A posting by CEO Rod Beckstrom on the ICANN blog included an incomplete timeline and didn’t commit to implementing anything more than the narrowest legal interpretation of the panel’s findings. Many commenters attacked this, saying ICANN should just get on and do the right thing. This week in Nairobi CEO Rod Beckstrom has distanced himself from the blog posting, saying it was written by ICANN’s General Counsel John Jeffrey. While that’s not the most courageous stance I’ve ever seen, I hope it signals a move toward decisive action on .XXX.
Why is .XXX so difficult to sort out? The .XXX application triggered the perfect storm of conflict that got right to the heart of ICANN’s mission and its point of deepest vulnerability. The average quango bumbles along for decades and never faces the precise set of people, motivation and cause with the potential to tear it apart. ICANN does so about every five years.
The .XXX affair exposed ICANN’s core vulnerability, and gave flesh to all the conspiracy theories about the US government ‘controlling the root’. The independent review panel’s account sets out in black and white the invincible pressure on ICANN caused by a right wing religious lobby group’s letter writing campaign to the US Department of Commerce. The panel drew strongly on Paul Twomey’s statement that in the summer of 2005 the DoC said it would not put .XXX into the root. The version of events now in the public domain has not been publicly contested by the DoC.
The DoC’s threat to unilaterally keep .XXX out of the root meant that ICANN, having gone through its whole consultative process and come to a decision well within the limits of its powers, would have publicly and finally been stripped of every last rag of its authority and raison d’etre. If this had been made public, ICANN would have been finished. At that point in the global Internet governance debate, the proof that the US government felt free to interfere in ICANN’s work and exercise ultimate control over the Internet root would have fatally weakened the case for multi-stakeholder governance.
Not surprisingly, ICANN’s leadership decided that is own failure to honour its commitment to ICM was the lesser of two evils. For the second time in eighteen months, ICANN faced down an existential threat and limped away, badly damaged. A legitimate question we can all ask ourselves is ‘was it worth it’?
From the relative comfort of a lawyer’s briefing room, it’s easy to condemn ICANN’s then leadership for not following through on the .XXX contract. ICANN’s leaders faced the appalling dilemma of ‘bombing the village in order to save it’. All ICM wants to do is run a registry and make some money. They played by the rules and didn’t want to be drawn in to a world of international realpolitik. But there’s no denying that’s the world this dispute lives in. The legalistic nature of the dispute means ICM and most critics focus on ICANN’s abrogation of its own procedures. This is important, but narrows the view too much to appreciate the big picture.
Who is the most at fault? Political appointees at DoC allowed religious extremists and bully boy tactics to drive policy on the stewardship of a global resource. They let momentary, parochial domestic impulses over-ride America’s larger interest in a free and global Internet.
Stuart Lawley of ICM was absolutely right when he told me a couple of days ago that this issue is about much more than just a smutty little porn thing. It’s a test of ICANN’s accountability. The independent review panel is the jewel in the crown of ICANN’s accountability mechanisms. Its declaration demands a substantive response, not just a discussion of the issues.
But .XXX is about more than ICANN’s accountability, too. On a day in Nairobi that included a closed session on the role of the Government Advisory Committee and ICANN’s institutional evolution, the transparency and accountability of individual governments should be in the spotlight, too.