ICANN approves .XXX red-light district for the Internet

Eric Brunner-Williams brunner at nic-naa.net
Sun Mar 27 15:01:07 CDT 2011

On 3/27/11 2:35 PM, John Levine wrote:
>>>                          ... I expect the board and staff really
>>> really would not want to have to answer questions under oath like "who
>>> did you talk to at the US Department of Commerce about the .XXX
>>> application and what did you say?" and "why did you vote against .XXX
>>> when they followed the same rules as the TLDs you voted for?"
>> The first assumes that a beneficiary should exist that is distinct
>>from the applicant-sponsor.
> On the contrary.  Since it is clear that all of the other sTLDs have
> failed to attract the predicted support from their nominal
> communities, why should a similar lack of support for .XXX make any
> difference?

First, you (John Levine) are free to interpret the comments of Stephen 
Fouant (the author of the first comment) any way you please, his 
statement (below) suggested to me that he expected to find a 
beneficiary other than the applicant (consistent with rfc1591 aka 
ICP-1), and he did not also assert that beneficiaries other than the 
applicant do not exist for all other sTLD applicants, or perhaps all 
other gTLD operators.

>> I can't seem to find anyone that would benefit from this, with the exception
>> of Stuart and ICM's shareholders.

However, you're free to assert the contrary, though to what is unclear 
to me.

Next, on what basis do you make the claim that .coop and .cat have 
failed to attract the predicted support from their nominal communities?

>> The second assumes the principle liability that exists is specific to
>> a single application.
>> While possible, this fails to place a controversy in its complete
>> context, and assumes an implied pattern of conduct by an agency of
>> government at a point in time reflects a continuous primary issue of
>> that agency.
> Heck no.  I expect that were a case to bring documents to light, they
> would show that what ICANN said to the US government was at odds with
> what they were saying in public.  I know none of us would find that at
> all surprising, but we're not a judge looking at the contracts.

I don't think you caught the sense of my point that the transparency 
and accountability issue may transcend any specific case or 
controversy, however, as I pointed out, all theories of ICANN 
liability wait for a first test, and so are all equally hypothetical.


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