Appeared in the Toronto Star on May 22, 2006 as Domain Names Shouldn’t Be Only a U.S. Domain
Appeared on the BBC on May 22, 2006 as the Rights and Wrongs of .xxx

Earlier this month, the Internet Corporation for Assigned Names and Numbers (ICANN), the U.S.-based non-profit corporation that administers the Internet’s domain name system, rejected a proposal to establish a new dot-xxx domain name extension.  The year-long debate over whether to approve the adult-oriented domain may have long-term implications for Internet governance since it sparked enormous controversy and provided ample evidence of U.S. government intervention into ICANN matters.

In the 1980s, seven generic top-level domains, including dot-com, dot-net, and dot-org, were established.  Those domains remain among the most popular on the Internet, with millions of registrations worldwide.

Since its inception in 1998, the introduction of new generic top-level domains has emerged as one of ICANN’s thorniest policy issues, with the governance body approving seven new domains, including dot-biz and dot-info, in 2000.

Interest in the creation of yet additional domain name extensions remains high as the domain name registry business presents a lucrative opportunity to collect annual registration fees for potentially millions of new domain names.  Moreover, domain name registrars support additional domains as they provide new products to market to the Internet community.

ICANN’s initial reluctance to establish dozens or hundreds of new top-level domains initially centered on fears that an influx of new domain name extensions might adversely impact the reliability of the Internet.  Those technical concerns are rarely voiced today.
 
Similarly, the intellectual property community opposed new domains on the grounds that they might encourage domain name speculation known as "cybersquatting."  That issue has been largely addressed through "sponsored" domain extensions that restrict access to the new domains as well as through advance registration systems that grant trademark holders the right to register the domain name equivalent of their trademarks before the general public.

With millions of dollars at stake, the Internet community has relied on ICANN to establish a transparent system for creating new domain name extensions.  The resulting process has left many observers unhappy.  They argue that it is too expensive (application costs alone are now estimated at US$250,000), too cumbersome (creation of the domain name extension may require months of negotiation after preliminary approval is granted), and too subjective (rather than establishing objective criteria, the decisions are fraught with subjective policy choices). 

In March 2004, ICM Registry, a Florida company, joined forces with a Toronto-based organization called the International Foundation for Online Responsibility, to propose the creation of a new dot-xxx top-level domain.  The proposal maintained that dot-xxx would "clearly and unequivocally convey to the Internet user that the site contains adult material of a sexual nature."

Fifteen months later, ICANN announced that it had entered into commercial and technical negotiations to establish the dot-xxx domain.  The decision came as a surprise since there were many other worthy domain name proposals awaiting approval and this particular domain was sure to generate controversy.

Indeed, the prospect of a dot-xxx domain name extension created an immediate firestorm in the United States.  According to U.S. government documents released last week under a Freedom to Information Act request, U.S. officials quickly recognized the sensitivity associated with the new extension and considered whether it could influence the process.  Those concerns grew as several groups actively opposed the new domain extension with letter writing campaigns that generated thousands of critical letters and emails.

Faced with a brewing domestic political issue, the U.S. government urged ICANN to delay final approval to allow for an extensive global consultation.  In the months that followed, several other countries voiced opposition to the new domain extension.  The ICANN board raised several concerns with the dot-xxx backers, who repeatedly adjusted their proposal in response.

Despite the changes, a divided ICANN board ultimately voted nine to five against the establishment of the dot-xxx domain.  The decision predictably elicited criticism from several quarters.  Many ICANN watchers noted that the function of the organization was to address technical Internet issues in an independent manner, yet this decision appeared to be based on political considerations with near-obvious intervention from the U.S. government.

The European Union echoed those concerns.  A spokesperson characterized the episode as a "clear case of political interference in ICANN" and lamented that "it is a worrying development that the U.S. administration has interfered in this process."

In caving to U.S. pressure, ICANN may have traded short-term gain for long-term pain.  In the short-term, ICANN has staved off immediate government pressure and has likely ensured continuing support from the U.S. government.  In fact, late last week the U.S. government announced that it planned to renew one of its ICANN agreements for an additional five years. 

Looking ahead, however, proponents of a multi-lateral Internet governance framework will cite this case as a classic illustration of why the ICANN approach must be altered to ensure transparency, independence, and to better reflect the needs of the global community.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.  He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.