| abstract
| - 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. Registration by adult websites into the .xxx domain would be purely voluntary, and those sites would not be required to give up their existing (for the most part, .com) sites. Announcement of a .xxx domain proved controversial. 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. The ICANN Government Advisory Committee (GAC) also requested more time before the final decision. At the March 2006 Board meeting in New Zealand, the ICANN Board authorized ICANN staff to continue negotiations with ICM Registry to address concerns raised by the DOC and the GAC. However, on May 10, 2006, the Board voted 9-5 against accepting the proposed agreement, but did not rule out accepting a revised agreement. Subsequently, on January 5, 2007, ICANN published for public comment a proposed revised agreement with ICM Registry to establish a .xxx domain. However, on March 30, 2007, the ICANN Board voted 9-5 to deny the .xxx domain, citing its reluctance to possibly assume an ongoing management and oversight role with respect to Internet content. 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, the three-person Independent Review Panel (from the International Centre for Dispute Resolution) ruled primarily in favor of ICM Registry, finding that its application for the .xxx TLD had met the required criteria, and that the ICANN Board’s reversal of its initial approval “was not consistent with the application of neutral, objective and fair documented policy.” The IRP decision was not binding; it was the ICANN Board of Directors’ decision to determine how to proceed and whether ICM’s application to operate a .xxx TLD should ultimately be approved. At ICANN’s March 2010 meeting in Nairobi, the Board voted to postpone any decision about the .xxx TLD, and directed ICANN’s CEO and general counsel to write a report examining possible options. On June 25, 2010, at the ICANN meeting in Brussels, the Board voted to allow ICM’s .xxx application to move forward. The Board approved next steps for the application, including expedited due diligence by ICANN staff, negotiations between ICANN and ICM on a draft registry agreement, and consultation with ICANN’s Government Advisory Committee (GAC). At the December ICANN meeting in Cartegena, Colombia, 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 will enter into a formal consultation with the Government Advisory Committee on areas where the Board’s decision is in conflict with GAC advice relating to the ICM application. 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. With the GAC ultimately opposed to approval of .xxx at this time (and continuing to raise specific objections), the ICANN Board acknowledged that the Board and the GAC were not able to reach a mutually acceptable solution. Ultimately, on March 18, 2011, at the ICANN meeting in San Francisco, the ICANN 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.
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