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Derived From: Lennard G. Krugarm, Internet Governance and the Domain Name System: Issues for Congress, Congressional Research Service May 23, 2014

Since 2000, ICANN has repeatedly considered whether to allow the establishment of a gTLD for adult content. On June 1, 2005, ICANN announced that it had entered into commercial and technical negotiations with a registry company (ICM Registry) to operate a new “.xxx” domain, which would be designated for use by adult websites. With the ICANN Board scheduled to consider final approval of the .xxx domain on August 16, 2005, the Department of Commerce sent a letter to ICANN requesting that adequate additional time be provided to allow ICANN to address the objections of individuals expressing concerns about the impact of pornography on families and children and opposing the creation of a new top level domain devoted to adult content. ICANN’s Governmental Advisory Committee (GAC) also requested more time before the final decision.

On March 30, 2007, the ICANN Board voted 9-5 to deny the .xxx domain. ICM Registry subsequently challenged ICANN’s decision before an Independent Review Panel (IRP), claiming that ICANN’s rejection of ICM’s application for a .xxx gTLD was not consistent with ICANN’s Articles of Incorporation and Bylaws. On February 19, 2010, a three-person Independent Review Panel ruled primarily in favor of ICM Registry, finding that its application for the .xxx TLD had met the required criteria.

Subsequently, on June 25, 2010, at the ICANN meeting in Brussels, the Board of Directors voted to allow ICM’s .xxx application to move forward, and at the December 2010 ICANN meeting, the ICANN Board passed a resolution stating that while “it intends to enter into a registry agreement with ICM Registry for the .xxx TLD,” the Board would enter into a formal consultation with the Governmental Advisory Committee on areas where the Board’s decision was in conflict with GAC advice relating to the ICM application.25

While not officially or formally in opposition to the approval of .xxx, the GAC advised ICANN that “there is no active support of the GAC for the introduction of a .xxx TLD” and that “while there are members, which neither endorse nor oppose the introduction of a .xxx TLD, others are emphatically opposed from a public policy perspective to the introduction of an .xxx TLD.”26 The GAC listed a number of specific issues and objections that it wished ICANN to resolve.

A February 2011 letter from ICANN to the GAC acknowledged and responded to areas where approving the .xxx registry agreement with ICM would conflict with GAC advice received by ICANN.27 The Board acknowledged that ICANN and the GAC were not able to reach a mutually acceptable solution, and ultimately, on March 18, 2011, the Board approved a resolution giving the CEO or General Counsel of ICANN the authority to execute the registry agreement with ICM to establish a .xxx TLD. The vote was nine in favor, three opposed, and four abstentions.

The decision to create a .xxx TLD was not viewed favorably by many governments.28 In an April 6, 2011, letter to the Department of Commerce, the European Commissioner for the Digital Agenda asked that the introduction of .xxx be delayed.29 In its response, NTIA said it “share[s] your disappointment that ICANN ignored the clear advice of governments worldwide, including the United States, by approving the new .xxx domain.”30 However, NTIA stated why it would not (and did not) interfere with the addition of .xxx:

While the Obama Administration does not support ICANN’s decision, we respect the multi- stakeholder Internet governance process and do not think that it is in the long-term best interest of the United States or the global Internet community for us unilaterally to reverse the decision. Our goal is to preserve the global Internet, which is a force for innovation, economic growth, and the free flow of information. I agree with you that the Board took its action without the full support of the community and accordingly, I am dedicated to improving the responsiveness of ICANN to all stakeholders, including governments worldwide.31

 

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