The company behind the unsuccessful bid for [tag].xxx[/tag], [tag]ICM Registry[/tag], is going to suing the US Department of Commerce later today for access to the information that the DoC pulled out of documents released under the Freedom of Information Act back in November.
This has the potential of becoming a huge issue as the whole court case will focus on what is the relationship between the US government and ICANN – the Net overseeing organisation.
There is no doubt, at least not in my mind, that both ICANN CEO Paul [tag]Twomey[/tag] and chairman and Vint [tag]Cerf[/tag] changed their minds over .xxx because of extraordinary pressure from the US government, who themselves had been swamped by protests by right-wing Christian groups.
And some of the 1,600 FOIA documents that ICM Registry got hold of demonstrate just how seriously the DoC was taking it. Plus the lengths to which they went to get people rallying against .xxx, including encouraging – and, I hear, pressuring – other governments to complain about it. Plus fixing up the pressure groups with ICANN. Sending letters to ICANN. Meeting with Cerf. Email communications wth the GAC chairman. It is a catalogue of interventions and it underlines what everyone has known to be true for a long time: that the US government *does* intervene with the running of the Internet, despite its constant claims that it has nothing to do with the day-to-day running.
(It has also intervened incidentally with .Net, .Com, and several ccTLDs including Libya, Afganistan and Iraq.)
The fact is that [tag]ICANN[/tag] will pretty much do anything that the DoC tells it at the moment because its entire future hangs in the balance when both its founding MoU and the IANA contract finish on 30 September this year.
Anyway, of the 1,600 documents ICM received, 120 of them were “redacted” and 98 of them were blank entirely. ICM appealed against these cuts back in December but the DoC has strung out what was supposed to be a 20-day reply time – without any explanation – and as yet has still not got back.
ICM warned the DoC that if it didn’t reply before 10 May – when ICANN voted on .xxx – it would sue. It didn’t, so ICM is lodging the lawsuit in the Washington District of California today. And, of course, that puts all the documents into the public domain.
At the heart of this is ICANN relationship to the DoC. The justification that the DoC used to remove the information only holds true, ICM claims in the lawsuit, if ICANN is a federal body or the DoC has control over it. So it could come down to: does the DoC accept it has control over ICANN and so undermine all its previous statements, or be forced to release information that shows it abuses its position to control ICANN?
ICM has got a top First Amendment lawyer on this one – Robert Corn-Revere – so it will be interesting to see what the DoC does. I predict it will stall the whole process until the MoU in September, and then use the new contracts to find a legal way out of the mess.
I have done a story for The Times on the saga, but it lacks significant detail. But I written have another more in-depth version for The Register. I see that Kevin Murphy has stuck up quite an extensive story on it that includes some details that I haven’t included in my story.
But what will be of far greater interest to those who want to full ins and outs is a series of documents attached to this post. They are:
- ICM Registry’s letter to the DoC on 5 May [pdf] threatening to sue it if it didn’t reply to its appeal by 10 May.
- That appeal, outlining what was in those documents, and attaching a large number of them as exhibits. Comes in two parts. The first, outlines the legal case and reveals the most interesting information [pdf] in the documents provided. And the second contains those documents as exhibits [pdf].
It is likely to be no coincidence that ICM has decided to file this lawsuit now – when the very high-powered [tag]IGF[/tag] Advisory Board is meeting in Geneva to decide what will be on the agenda of the first meeting in Athens in October.
I hope to have a copy of the actual lawsuit later today, which I will post on this blog.
