Porn-friendly .xxx domain backer loses suit against federal agencies

ICM Registry, thwarted in its bid for .xxx in part by the Bush administration, gets dealt a setback in suit to unearth State and Commerce Department documents.

The company behind the proposed .xxx top-level domain, which was rejected after the Bush administration intervened, has been trying to dig up embarrassing government documents through a federal lawsuit.

Make that "was trying." A federal judge on March 12 granted summary judgment to the Bush administration in the Freedom of Information Act lawsuit brought by the ICM Registry.

By way of background, ICM Registry had proposed the porn-friendly .xxx domain in 2004 to the Internet Corporation for Assigned Names and Numbers, four years after ICANN rejected the idea the first time. In June 2005, ICANN approved .xxx--but the Bush administration objected two months later, and ICANN's board subsequently reversed itself by a 9-5 vote.

ICM Registry's Stuart Lawley, an indefatigable entrepreneur who made his fortune by founding a U.K. Internet service provider, didn't give up. He filed a FOIA request to learn how conservative groups pressured the Bush administration, and he released the first round of documents in May 2006. But the State Department and Commerce Department withheld others--claiming they were part of an internal "deliberative process"--and those are the documents at issue in the current lawsuit.

Robert Corn-Revere, an attorney at Davis Wright Tremaine who is representing ICM Registry, said a lawsuit against ICANN for denying the .xxx top-level domain is now possible.

"ICM Registry is planning to examine and pursue all of its legal options," Corn-Revere said Tuesday. "We were waiting to see what the outcome of this FOIA litigation was."

ICM had argued that if there's reason to suspect government misconduct such as improper influence by Focus on the Family et al., the documents should be turned over straightaway (this is known as the misconduct exemption).

U.S. District Judge James Robertson in Washington, D.C., sided in part with ICM, saying that argument would be valid if the administration "opposed .xxx for nefarious purposes" but that none had been demonstrated. Robertson, however, didn't actually read the withheld FOIA'd documents for himself, which is something that ICM could raise, if it chooses to appeal.

The key part of Robertson's ruling is:

Whatever the boundaries of the misconduct exception, they cannot be as expansive as ICM declares them to be...Absent some showing that consideration of domain name and Internet policy is outside these departments' and agencies' domains--and none has been made--or that they opposed .xxx for nefarious purposes, their action is not misconduct within the meaning of the exception to the deliberative process privilege.

If the government "leaned on"? ICANN or any other decision maker that it did not directly control, (its) policy choice to do so is discoverable under FOIA. That choice (if it was made) was not "political abuse," however, and so the deliberations that underlay it are properly exempt from disclosure.

Descriptions of some of the documents that were not released certainly make their contents sound intriguing. One is a State Department staffer's response to a Wall Street Journal article about alternatives to the domain name system; others deal with meetings between the State Department and a delegation from Japan.

On the Commerce Department side, the documents--again, these have not been released in full--include:

- Document EP59: This is an e-mail containing a Commerce employee's opinions regarding the effects of a .xxx domain on children's access to pornography.

- Document EP61: This reflects the opinions of Commerce Department employees on the effects of .xxx on children's access to pornography and on what Web sites would be in a .xxx domain.

- Documents EP90-92: These are part of an e-mail chain, and the redactions relate to the opinions of Commerce employees on how to present Commerce's role in making changes to the authoritative root zone file to the public.

Documents EP125-126: These are e-mails, and the redactions include the opinions of a Ms. Atwell on the roles of ICANN and Commerce in the approval of the .xxx domain, and her opinions regarding control of children's access to pornography. (By Atwell, this presumably means Meredith Atwell Baker, then the deputy assistant secretary for communications and information in the National Telecommunications and Information Administration.)

- Documents EP46, EP98: These are e-mails from which questions and opinions of White House employee Helen Domenici have been redacted. These include the status of .xxx approval, as well as opinions regarding approval. (Domenici is listed as Assistant Associate Director for Telecommunications and Information Technology (PDF) in the White House's Office of Science and Technology Policy.)

- Documents 000001-000007: These are all drafts of a document entitled "USG/DOC Options Regarding GAC Consideration of the Proposed .xxx Domain." (Because it's not a final policy and contains options not acted on, the judge ruled, it can't be obtained through FOIA.)

- Documents 000008-000010: These are all drafts of a document entitled "USG Opinions for Including .xxx in the Authoritative Root Zone file."

- Document 000016: This is a draft entitled "USG Procedural Options Regarding the Creation of .xxx"

- Document 000019: This is a draft entitled "The Department of Commerce's Role in Additions to the Internet Domain Name System Authoritative Root Zone File."

To be sure, the Commerce and State Departments did release a good number of documents in redacted and non-redacted form. Corn-Revere said: "I expect we will be releasing the other documents we have."

But those additional files could have provided a valuable glimpse into how much pressure conservative groups applied--and into what the U.S. government thinks of ICANN and its own role in approving new domain name suffixes. Unfortunately, given the limitations of FOIA and a judge who was unwilling to go along with ICM's arguments, we may never know the whole story.

 

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