Reconsideration Request 00-15 Received: 16 December, 2000

SENT VIA E-MAIL

December 15, 2000

Louis Touton
Internet Corporation for Assigned Names & Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, CA 90292-6601

Re: Motion for Reconsideration

Dear Louis:

ICM Registry formally requests the Internet Corporation for Assigned Names and Numbers (“ICANN”) for reconsideration with respect to the circumstances involving the ICANN Board Resolution 00.89. The scope of this motion for reconsideration is to remedy inaccurate statements made about ICM Registry’s proposal, and does not in any way seek to alter the number or nature of those registry applicants included in the 00.89 Board Resolution.

This request is written in accordance with the reconsideration policy described on the ICANN web site at: http://www.icann.org/general/reconsideration.htm 

1. Name, address, and contact information for the requesting party, including postal and email addresses

Requesting Party:

ICM Registry, Inc.
2300 Yonge Street, Suite 907, PO BOX 2326
Toronto, Ontario  M4P 1E4
Canada

Contact:          Jason Hendeles
Phone:             416-322-7740
Fax:                 416-485-6195
Email:              jason@icmregistry.com

2. The specific action of ICANN for which review or reconsideration is sought

ICM Registry requests ICANN to review comments and representations made by ICANN’s staff and board members with respect to ICM Registry’s proposal to become the registry operator for the .XXX top level domain and the selection process surrounding Board Resolution [00.89].

3. The date of the action

The date of the action corresponds to Board Resolution [00.89] dated November 16, 2000.

4. The manner by which the requesting party will be affected by the action

ICM Registry was one of forty-seven applicants to submit an application to ICANN for a proposed new top-level domain. Although ICM Registry commends the Board for the unenviable task of selecting seven applicants from a highly competitive field, ICM Registry has serious concerns about inaccurate representations made by both ICANN’s staff and directors.  These misrepresentations have seriously damaged our ability to continue to generate consensus within both the adult content community and the broader Internet community and to our ongoing efforts to enhance our proposal for ICANN’s next registry submission.

5. Whether a temporary stay of the action is requested

ICM Registry is not seeking a temporary stay of the action.  ICM Registry seeks clarification from the Board with respect to inaccurate statements made involving our registry proposal. A temporary stay of the Board’s decision to expand the name space would be an injustice to the many Internet stakeholders that have invested so much time and effort into this process.

6. The grounds on which the action should be reversed, cancelled, or modified

ICM Registry sets forth the following inconsistencies and mischaracterizations by either the ICANN Board members or which appeared in the ICANN Staff report for which we request clarification.

(a) ICM Registry clearly stated in both our original registry proposal and in supplemental correspondence with ICANN’s staff that our TLD application was exclusively to become the registry operator for .XXX.  While we had proposed to operate the .KIDS registry as a non-profit service for the broader Internet community, it was only in the event that there was no other credible submissions for a .KIDS registry.  ICANN’s staff never clarified this position to the board.  As a result, ICANN’s staff may have mistakenly categorized our proposal as a restricted content category, when our proposal should have been categorized as a restricted commercial application.  In addition, this miscommunication damaged the evaluation of our submission and more importantly our credibility with the various stakeholders involved in our consensus building efforts.

Our original submission and all our supporting correspondence presented below clearly show that ICM Registry’s proposal was exclusively to operate the .XXX TLD:

“Upon information and belief, there may be multiple third party submissions for a green space top level domain for children. In such a scenario, ICM Registry is willing to work with these entities to financially fund their operation or provide the necessary technical support. If ICANN rejects ICM REGISTRY Registry’s effort to operate or financially sponsor a .KIDS registry (or related green space), then ICM REGISTRY will donate the money ear marked for these efforts to an acceptable non-profit organization. In the alternative, the money can be set aside in a trust fund until a future non-profit organization is established.” ICM Registry Volume 3, Description of TLD Policies, Section I.E2. TLD String, October 2nd, 2000.

 “After consulting with the other submissions for a green-space, top-level domain for children, ICM Registry has decided to withdraw its proposal to develop a non-profit .KIDS registry. As per Section E2, Volume – Description of TLD Policies, ICM Registry has decided to donate the money allocated for this initiative toward the creation of the Child Online Protection Organization (COPO), a non-profit organization.”  ICM Registry Supplemental Information, Page 4, Section C.  November 12th, 2000.                                   

These two documents clearly show that ICM Registry retracted its proposal to operate a non-profit .KIDS TLD before the ICANN staff and board had publicly begun to evaluate the ICM Registry submission.  Had ICANN contacted us for clarification, this could have been quickly resolved, unfortunately, ICANN’s staff did contact us and chose not to disclose this important information to the ICANN board or post it publicly on the ICANN website as was a consistent practice for many of the other applicants. 

                                                

(b) During the morning session of the ICANN Public Forum on November 15, 2000, Charles J. Neuhauser, PhD, a technical consultant employed by the ICANN staff, made the following unsubstantiated comments about the potential of a .XXX domain:

"The other side of the coin is the .XXX.  There are a number of questions, which we may wish to look at in the report.  They're not really technical questions they are constitutional questions, for instance, in this country.  But one of the most important things is that we found out by looking at the public comment forum and other information that came to us is that .XXX is not really supported by the potential registrant community, that's an issue that needs to be taken under consideration, and I think if you look at the report, you'll see that there are a number of reasons for this, like interrupt freedom of speech, someone might try to control that area one way or the other, forcing domains in or forcing domains out, so there are some very tough questions here."

ICM Registry is unaware of any information that shows that a voluntary .XXX is not supported by the both the potential registrant community and the majority of adult content webmasters.  Dr. Neuhauser suggests that this information came from the public comment forum and other information that came to him.   After carefully reviewing the public comment forum, we found only one comment from the hundreds posted that even attempts to support this assertion.  In addition, Mr. Andrew Edmond, the only source quoted in the ICANN staff report, confirmed with ICM Registry that he disagrees with both Dr. Neuhauser’s interpretation of his position and the use of his testimony to the COPA Commission in the context in which it was used.

Even more disturbing to ICM Registry was Dr. Neuhauser’s comment that a .XXX TLD might “interrupt freedom of speech, and that someone might try to control that area one way or the other.”  This unsubstantiated comment immediately biased our proposal and implied that somehow a voluntary adult TLD submission raised Constitutional questions.  This assertion is inconsistent with both ICM Registry’s proposal and United States case law.  In Name.Space v. NSI (2nd Circuit Court of Appeals) and National A-1 v. NSI (District Court of New Hampshire) the courts refused to extend First Amendment protection in second-level or top-level domains. It is important to also point out that were Dr. Neuhauser’s assertion correct, it would apply to all seven of TLD’s recently approved by ICANN except .INFO, the only approved generic registry. 

If Dr. Neuhauser's has additional information supporting his representations, ICM Registry formally requests that ICANN in compliance with its open and transparent mandate disclose this documentation.  Alternatively, Dr. Neuhauser should retract his unsubstantiated representation, especially when you consider the extremely damaging and false perception it cast upon our submission.

ICM Registry has never represented that it would segregate content or attempt to restrict the distribution of content.  ICM Registry recognizes that neither it nor ICANN has the power to restrict freedom of speech within a specific top-level domain.  ICM Registry’s voluntary top-level domain was attractive to the majority of adult content providers that we spoke with because it offered a rational first step towards self-regulation and an important pro-active effort to improve the Internet as a content distribution medium.

(c) Ester Dyson during the November 15, 2000 ICANN Public Forum made the following statement:

“I have one question.  The staff told us that they had checked with I guess their friends in the adult content industry…and they contradict what you said, they said that most people in the adult content industry were not that interested in a .XXX they very happy where they were and I’d like to just understand that contradiction better.”

Review of the staff report indicated no discussions with any adult content industry representatives aside from a select quote from Andrew Edmond during his testimony before the COPA Commission. 

ICM Registry seeks clarification as to if, the ICANN staff had ex parte communications with individuals in the adult-content community, or if Ester was referring solely to the select and isolated quote of Andrew Edmond. If in fact the ICANN staff had communication with representatives from the adult content community, ICM Registry feels that it is entitled to have these discussions disclosed to it, so that it may investigate and respond.

(d) Ester Dyson further stated that "they (referring to ICANN's friends in the adult content community) contradict what you said, they said that most people in the adult content industry were not that interested in a .XXX, they are very happy were they were."   ICM Registry again seeks clarification as to who "they" are.  In addition, ICM Registry's proposal in no way implies there should be a relocation of adult content from other top-level domain names to the .XXX TLD.  This misrepresentation was consistently represented by ICANN directors and was also present in the ICANN staff report.

ICM acknowledges that there is lack of unanimity within the adult content community, as there is in most industries on cutting issues. However, ICM Registry again must respectfully disagree with the ICANN Board's former chairperson in her broad sweeping characterization of "most" people in the adult content industry.  ICM Registry has expended significant time and effort in attempting to build consensus, and this overreaching and unsubstantiated statement of fact damages ICM Registry's ongoing consensus building efforts.

As will be discussed later in this motion, ICM Registry was never able to respond to the very elements upon which its proposal was ultimately not selected. If ICM Registry is correct in its assumption that ICANN had no ex parte communications with the adult content industry, then the ICANN Board and staff’s sole basis for making the statement that the adult content community did not support the ICM Registry proposal would rest on the select and isolated comments of Andrew Edmond before the COPA Commission. Included as Attachment #1 is a letter from Mr. Andrew Edmond, which supports the principles upon which the ICM Registry is based.

Mr. Edmond is only one of the many people that ICM Registry has been in contact with to build consensus for this proposal. Needless to say ICM Registry was disappointed upon learning ICANN Board’s potential erroneous mischaracterization and reliance on Mr. Edmond’s testimony. ICM Registry believes that its’ chances for being included in the proof-of-concept phase would have been greatly enhanced. However, ICM Registry continues to stand behind and support the Board’s recommendation in Resolution [00.89]. All that ICM Registry requests through this motion is clarification of these discrepancies and reaffirmation as to the strength of its proposal.

(e) In ICANN’s New TLD Application Instructions dated 15 August 2000, instruction I36 states:

“As needed, after the application period is concluded the ICANN staff may gather additional information by sending applicants e-mails asking for the information, by conducting telephone or in-person interviews with applicants, by attending (possibly with ICANN-retained experts) presentations by applicants or their experts, or by other means. These inquiries will be initiated by the ICANN staff; if you feel a presentation to ICANN is necessary to properly present your proposal you should suggest that in your written application.”

ICM Registry recognized at the outset the complexity of its proposal and requested an in-person interview as part of its original submission. After the ICANN staff missed several of its original target dates, they announced that it would not be conducting in-person interviews. Instead, the staff stated that it would rely upon email communications to answer any questions, in part because of the thoroughness of the original applications.

As part of this modified process, ICM Registry received only one email with two generic questions that were asked of almost every applicant. At no time was ICM Registry notified nor did it receive any information about the Constitutional concerns or lack of consensus within the adult content community upon which the ICANN staff and Board seems to have based their decision.  In addition, the board clearly failed to review or respond to the supplemental information provided on November 1^st, November 10th and November 12th, 2000.  This was evidenced by ICANN's decision not to post these letters on the ICANN website as was consistent with many of the other applicants.

The ICANN Board and staff report also seemed to rely heavily upon the report from the Child Online Protection Act (COPA) Commission. The COPA Commission was created by mandate of the United States Congress and chaired by Don Telage, executive adviser for Global Internet Strategy at Network Solutions.  The Center for Democracy and Technology, another active ICANN participant in connection with the at large election process, also participated in this Commission through its director Jerry Berman who served as a Commissioner.

ICM Registry recognized the potential significance of this commission and was present at several of its public meetings.  ICM Registry was disappointed that its final report cast a cloud of legal uncertainty around the existence of red-light and green-light top-level domains, when the existing case law cited above declined to provide First Amendment protection in second-level or top-level domains. The Commission also heard testimony from industry experts that spoke of the Constitutionally of mandatory zoning of Internet content through use of top-level domains and IP block addresses. A radical step that ICM Registry believes raises serious technical and legal issues.  ICM Registry's proposal was never specifically reviewed by the COPA Commission. 

ICM Registry finds ICANN’s references and potential reliance on the COPA Commission problematic. If the COPA Commission recommended creating mandatory red-light and green-light districts, ICANN would have found itself in the very unenviable position of the United States government potentially adding/requesting new top-level domains to the Root “A” Server, which as ICANN acknowledges is currently under the authority of the United States Department of Commerce.

It was for this very reason that ICM Registry sought an industry lead, market driven, non-regulatory solution to the problem of red-light districts. ICM Registry sought to create such a district within the ICANN process prior to a mandate by a national government that would threaten the autonomy of the ICANN institution.  As a technical oversight body, ICM Registry believes that ICANN should rely primary on the technical and financial criteria of future registry proposals and not let governmental initiatives influence its decisions.

Included as Attachment # 2, is a draft report that ICM Registry had prepared if questioned by ICANN about the COPA Commission. As indicated above, despite referencing the COPA Commission report in the staff report and during the ICANN Public Forum, ICM Registry was never given an opportunity to address these issues prior to the issuance of the staff report as originally provided for in the ICANN New TLD Application Instructions. In this attachment, ICM Registry sets forth in detail why its proposal for a .XXX TLD complies with the guidelines enumerated in the final COPA Commission report.

ICM Registry recognizes the tight time line and the unenviable task that confronted the ICANN staff. However, the mischaracterizations that appeared in the final staff report that were further reinforced during the ICANN Public Forum and Board meeting have impeded ICM Registry’s effort to build consensus in connection with this top-level domain and is the primary reason for which it seeks clarification from the Board.

(f) Elements of ICANN’s staff report were unreasonably biased and significantly damage ICM Registry’s credibility and ongoing consensus building efforts.   In Part 1.c. of the staff report, ICANN suggests that the ICANN Board sponsor a separate request for adult TLD proposals:

“If an adult TLD is to be introduced, moreover, it would be beneficial to have a diversity of proposals, with a diversity of possible approaches to the various problems, from which to choose.”  ICANN Report on TLD Applications: Application of the August 15 Criteria to Each Category or Group, Section III, B, Part 1.c., dated 9 November 2000.

This direction by the ICANN staff report penalizes ICM Registry for taking the initiative to file its submission first.  ICM Registry abandoned its confidentiality rights and disclosed its proprietary ideas, business processes, financial arrangements and consensus building efforts to the broader Internet community.  This was done in good faith in order to work with ICANN towards securing the .XXX registry.  Rather than making specific recommendations in support of our efforts, ICANN’s staff discredited our submission without justification by requesting a “diversity of possible approaches…from which to choose” clearly suggesting that our submission was inadequate.  To our knowledge there was no other proposal in which such a prejudicial comment was made.  On the contrary, many submissions, including .GEO, .I and .KIDS all received conditional support for their efforts, with the suggestion that subject to certain enhancements to their application, they would likely be accredited in the next round.

ICANN should reward ICM Registry for endeavoring to address this complex initiative.  Having been involved in this process since 1996, ICM Registry should be recognized as a pioneer in the domain name industry and as an ideal candidate to test-bed the first adult content TLD. 

(g) Another concern presented in the ICANN staff report was the assertion that “ICM Registry's application for an .xxx TLD does not appear to meet unmet needs. Adult content is readily available on the Internet.”  ICANN Report on TLD Applications: Application of the August 15 Criteria to Each Category or Group, Section III, B, Part 1.c., dated 9 November 2000.

ICM Registry clearly identified its strategy in both its original submission and in the supplemental letter sent to ICANN November 12^th, 2000. 

To summarized, our submission meets unmet needs because we have proposed to:

i. Offer a next-generation domain-based rating system. This new service would  enhancement the DNS’s utility through the creation of a domain-based rating system for adult-oriented content.  Additional detail on this system and process can be found in Attachment #4.

ii. Promote the development of a code of conduct for the online adult-content industry. With the support and direction of the ICM Registry Policy Advisory Board, ICM Registry proposes to work cooperatively toward the development of a code of conduct for the adult-content industry.  Additional detail on this strategy can be found in Attachment #4.

iii. Offer a non-profit company to educate, conduct R&D and protect children online.ICM Registry proposes to sponsor a non-profit company to fund an online educational campaign, evaluate the many child-protection technologies andprovide reports to the public about the capabilities of these technologies. In addition, it will invest in the research and development of technology solutions to the problem of protecting children online. ICM Registry’s proposed non-profit company has the largest percentage per registration and dollar non-profit contribution of any registry proposal to ICANN.  Additional detail on this company and its funding can be found in Attachment #4.

iv. Create an industry-led policy advisory board (PAB) to represent and address concerns about adult content registrations and registrants. Formed to develop registration policy and respond to legal and policy-related issues, the PAB will be a broad coalition of the Internet's business, technical, academic and user communities, and will be chaired by leading industry adult-content providers. (See also “An Industry-led Policy Advisory Board” under “Supplementary Information” below.)  Additional detail on the PAB and its funding can be found in Attachment #4.

v. Develop an effective "proof of concept.” concerning the introduction of new adult TLDs. This will lead to enhanced competition for registration services and the expansion of new, adult-oriented domain registration services.

In developing our proposal, ICM Registry consulted with: established Internet businesses and service providers; industry-leading adult-content providers; intellectual-property organizations; prominent academic representatives; child protection advocacy groups; several of the COPA commissioners; First Amendment rights organizations; law-enforcement agencies; and a variety of Internet user communities. ICM Registry’s model was developed by responsively analyzing the concerns and needs expressed by this broad coalition of representatives. Our proposal offers the adult content industry an opportunity to begin to self-regulate its activities and to pro-actively take steps to manage the distribution of adult content in order to protect minors without restricting free speech.   In addition, our proposal offers a way to sponsor non-profit educational programs and the development of new technology to protect both children and adults from harmful content online.  ICANN should support ICM Registry’s efforts to enhance our proposal and to coordinate the development of policy through private-sector, bottom-up, consensus-based measures.

(h) ICM Registry also requests reconsideration of the Board’s deliberations with regard to Affilias and IO Design’s application for the .WEB TLD. ICM Registry believes that by acknowledging IO Designs operation of the .WEB TLD on an alternate root server and then declining not to award this TLD to Affilias (which indicated it as its first choice) has sent mixed signals to the Internet community.

Specifically, since the Board’s Resolution on November 16^th, Domain Name Systems, which claims to be an "accredited registrar," prominently displays on its Website (http://www.domainnamesystems.com/) the following message: "now available through our alternate registry system. The ones ICANN didn't want - adult domains .XXX and .SEX." ICM Registry believes that based upon its favorable treatment of IO Design’s application, third parties will seek to operate TLDs in alternate root servers in circumvention of the ICANN process.  ICM Registry believes that pre-registration in these alternate roots will undermine its legitimate consensus building efforts and lead to consumer confusion.

In a letter dated December 13^th, 2000 ICM Registry wrote to Louis Touton requesting that ICANN make a public statement with regard to registration services provided for top-level domains in alternate root servers. A copy of that letter is enclosed as Attachment #5.

(i) Finally, ICM Registry respectfully asks the Board to carefully consider its’ comments during future public forums. Although ICM Registry was disappointed that it did not make it into the ICANN Board’s final “shopping basket” this time, it was particularly hurt by an unintentional remark that although intended as a joke was a blow to the morale of the ICM Registry team. 

On November 16, Vint Cerf made the statement  "didn't somebody somehow combine .KIDS and .XXX is that child porn or something?" ICM Registry and the broader Internet community hold Mr. Cerf with high regard.  However,  the gravity of this comment in the international forum, in light of the many other misrepresentations and inaccuracies made it painfully clear that Mr. Cerf and many other members of the board did not adequately review our submission or have sufficient information disclosed to them by ICANN’s staff.

7. What specific steps the requesting party asks ICANN to take i.e., whether and how the action should be reversed, cancelled, or modified

This motion to reconsider is not seeking inclusion of the .XXX TLD into the initial proof of concept phase.  ICM Registry has submitted this request in order to solicit clarification from the ICANN Board and staff with respect to irregularities and mischaracterizations made during this process.  This clarification will both remedy the public's perception of our registry proposal and enable ICM Registry to continue to both develop consensus within the broader Internet community and enhance our proposal accordingly. 

The clarification that ICM Registry would like to see is as follows:

a. It appears that ICM Registry was the only applicant to submit an application exclusively to operate an adult content top-level domain registry.

b. It appears that ICM Registry's proposal has met the threshold criteria for an application.

c. It appears that ICM Registry has actively started to develop consensus within the broader Internet community and has begun to address the many complex issues surrounding this type of top-level domain.   ICANN supports efforts to develop consensus within constituencies within the broader Internet community and the adult content community. 

d. ICANN’s evaluation team should consider disclosing which representatives from the adult content community they spoke with and correspondence relating to our application.  Alternatively, ICANN should consider retracting its assertion that our registry is not supported by the adult content community in light of the enclosed letter from Andrew Edmond.

e. ICANN should reconsider its recommendation that there should be multiple adult content submissions.  This assertion damages our initiative and ongoing efforts especially after ICM Registry withdrew all confidentiality from our submission and made it accessible to the broader Internet community.  Clearly, this request was not made of any other TLD application and is not a fair representation.

f. ICANN should have represented our proposal as "Best of Class" among the applicants for an adult content top-level domain. ICM Registry believes that such a statement is appropriate in light of Frank Fitzsimmons' statement on November 16th that made reference to .KIDS Domain, Inc. as "best of class" in the restricted content top-level domain. In the alternative, ICM Registry would accept a ICANN public statement that .KIDS Domain, Inc. is not best of class in the restricted content top-level domain category.

g. ICANN staff’s should post a list of all registry applicants that passed the threshold criteria and identify the specific TLD string associated with their bid and post it on the ICANN site. This list would be of value for future applicants to identify and avoid potential conflicts for the same string.

ICM Registry proposes the following as an example of an acceptable clarification statement:

“Upon further consideration, the ICANN Board is of the opinion that ICM Registry’s proposal was the best-in-class adult content top-level domain name submission.  ICM Registry appears to have addressed many of the complex issues surrounding this complex top-level domain and appears to be working successfully toward building consensus among the adult content community on this issue.  The ICANN staff report suggestion that there should be multiple adult content top-level domain submissions was not a prudent assertion to make at this time.”

ICM Registry would like to thank in advance the Committee on Reconsideration for reviewing and addressing these concerns.

8. Any documents the requesting party wishes to submit in support of its request

Attachment #1 - Letter from Andrew Edmond

Attachment #2 - Summary of COPA Commission Comments

Attachment #3 - Letter to ICANN dated November 1, 2000

Attachment #4 - Letter to ICANN dated November 14, 2000

Attachment #5 - Letter to Louis Touton dated December 13, 2000

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Attachment #1

Sent via email

To Whom it May Concern,  

Early last week, I was notified that my testimony to the COPA commission in regards to a possible .xxx Top Level Domain was used in the process of the application of ICM Registry for the rights to administer that .xxx domain as registrar.

I would like to take the opportunity to clarify my position to the decision makers at ICANN so that there is no misunderstanding of my position on this important issue.  As one of the adult Internet's foremost policy leaders in regards to the legislative or regulatory processes, I feel that my position on this issue will heavily influence the viability of the domain - before and after the approval process.

Therefore, I would like to make it clear that my position on a .xxx domain, as stated to the COPA commission, was one of disapproval ONLY if there were ever to be legislation removing our rights from publishing adult content material to the .com TLD, in favor of the .xxx domain.

We insist, and will continue to insist, that it is our right to publish our material to .com, .org, and other major domains with open content policies.  It would be a given that not only would the majority of our industry turn loose an army of lawyers to defeat this policy, but it would also be highly likely that our legal defense of such a censoring policy would be joined from major organizations such as the ACLU and Electronic Frontier Foundation.

Alternatively, if the .xxx domain was used to bring value to adult content consumers, adult content businesses, and adult search engines as a voluntary domain, we would clearly enjoy the benefits as outlined in ICM Registry's proposal.

As an important part of my support of this domain, I foresee that in the future the legal process would prove a limitation of liability for those that publish on the .xxx domain, and a higher liability to those publishing on the .com domain.  In that very basic legal incentive, I think we would see .xxx flourish with business, and a natural DECLINE of material being published on the other open content domains such as .com and .net.

Additionally, the added benefits of the .xxx TLD advisory board, the research and development funding made available through .xxx revenues, and ratings system integration with the TLD makes me feel that the .xxx TLD would be a great success.

HOWEVER, I state strongly that my warning above need be mentioned again: any attempt to make the .xxx domain the only legitimate adult content domain, removing our rights to .com, .net and other content policy free domains would erupt into an obscenity battle like we haven't seen since the Reagan administration.  Let me remind those in charge of policy, history has shown that the 1st Amendment always prevails in censorship disputes.

In summary, I am glad to support ICM Registry in their efforts to provide value to adult content consumers, adult content businesses, parents, employers, and other Internet bodies with their .xxx domain.  I see great benefit to all Internet citizens from their successful bid towards this domain. 

Andrew Edmond

December 15th, 2000

Attachment #2

INTRODUCTION

In October 1998, Congress approved a congressionally appointed panel to "identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet."  This panel, known as the COPA Commission, was mandated by the Child Online Protection Act.

As part of its mandate, the COPA Commission was tasked to evaluate and comment on “the establishment of a domain name for posting of any material that is harmful to minors.”

On October 2^nd, 2000, ICM Registry submitted an application to the Internet Corporation for Assigned Names & Numbers (“ICANN”) for the creation of a .XXX and .KIDS top-level domain name.  ICM Registry’s proposal introduces the concept of a voluntary green and red-light district on the Internet to better manage adult-oriented content in order to protect children online. 

On October 20, 2000, the COPA Commission released its final report to Congress.  In this report, "the Commission concludes that no single technology or method will effectively protect children from harmful material online." Instead it recognized that a "combination" of elements was needed to adequately address this problem. 

As part of the COPA Commissions mandate, the potential of establishing of a new gTLD for harmful to minors content was evaluated and commented on.  The commission concluded that while “the existence of such a domain would make it easy for browsers or ISPs to filter out explicit material”, the creation of a voluntary new top level domain name “raises privacy and first amendment right concerns”, “adverse effects on law enforcement” and “may be only moderately effective because of questions about whether harmful to minors content sources would locate material exclusively in the .xxx domain.”

This document is for internal purposes only and addresses the COPA Commissions comments and recommendations and evaluates the methods and technologies which form the basis of the Commissions preliminary findings.  ICM Registry will show that its proposal to ICANN is an effective combination of elements in order to protect minors from harmful material online without adversely effecting Internet users first amendment rights or law enforcement.

After further review ICM Registry has serious concerns about both the structure of the COPA Commission and the legitimacy of its findings based on the methods implemented.  The following are the key concerns that must be addressed:

1. 39% of the COPA Commission represented first amendment rights advocates or special interest groups.  Does this comply with the original recommendations set out in the Child Online Protection Act?

2. COPA arbitrarily chose to include first amendment rights as the most prominent consideration in its evaluation of potential methods and technologies to protect children online from harmful content. 

3. The commission lacked sufficient funding and technical expertise to properly evaluate the technologies and methods proposed.

4. COPA may have not completely evaluated the benefits a TLD would offer to the law enforcement community

5. COPA made a short-term rather than long-term evaluation of the potential effectiveness of potential technologies and methods.

6. COPA’s decision to only support labeling and rating technology undermines the efforts of many groups offering other new technologies and methods.

7. COPA’s comments failed to evaluate the potential for a TLD to become an effective rating or labeling system for Internet content.

8. COPA’s recommendations are all indirectly support our top-level domain registry proposal.

9. Don Telage and the COPA Commissions support of First Amendment rights concerns contradicts the legal representations of his own company.

In response to the scope mandated by the Child Online Protection Act, the COPA Commission chose to limit the scope of its evaluation to the following technologies and methods with respect to domain names: 

• Establishment of voluntary domain for sites that self-identify as not suitable for children
• Establishment of mandatory domain for content meeting some specified standard (e.g. dotXXX domain)
• Establishment of a mandatory domain for content intended by the producer to be for adults only

The following table details the legal and policy questions develop and used by the COPA Commissions to evaluate the three methods described above in the context of ICM Registry’s proposal to ICANN:

Additional reference information can be found at:

http://www.copacommission.com/report/technologiesmethods.shtml

http://www.copacommission.com/commission/technologies.shtml

1.  39% of the COPA Commission represented first amendment rights advocates or special interest groups.  Does this comply with the original recommendations set out in the Child Online Protection Act?

SEC. 1405. STUDY BY COMMISSION ON ONLINE CHILD PROTECTION.

(a) ESTABLISHMENT.-There is hereby established a temporary Commission to be known as the Commission on Online Child Protection (in this section referred to as the "Commission") for the purpose of conducting a study under this section regarding methods to help reduce access by minors to material that is harmful to minors on the Internet.

(b) MEMBERSHIP.-The Commission shall be composed of 19 members, as follows:

(1) INDUSTRY MEMBERS.-The Commission shall include-

(A) 2 members who are engaged in the business of providing Internet filtering or blocking services or software;

(B) 2 members who are engaged in the business of providing Internet access services;

(C) 2 members who are engaged in the business of providing labeling or ratings services;

(D) 2 members who are engaged in the business of providing Internet portal or search services;

(E) 2 members who are engaged in the business of providing domain name registration services;

(F) 2 members who are academic experts in the field of technology; and

(G) 4 members who are engaged in the business of making content available over the Internet. Of the members of the Commission by reason of each subparagraph of this paragraph, an equal number shall be appointed by the Speaker of the House of Representatives and by the Majority Leader of the Senate.

(2) EX OFFICIO MEMBERS.-The Commission shall include the following officials:
(A) The Assistant Secretary (or the Assistant Secretary's designee).

(B) The Attorney General (or the Attorney General's designee).

(C) The Chairman of the Federal Trade Commission (or the Chairman's designee).

The following is a list of commissioners and our assumption as to their potential position (as per the Congresses recommendations set out in Section 1405 above):

• Donald Telage, Network Solutions Inc. - Commission Chairman [1E]
• Stephen Balkam, Internet Content Rating Association   [1C]
• John Bastian, Security Software Systems [1F]
• Jerry Berman, Center for Democracy & Technology ??
• Arthur H. DeRosier, Jr., Rocky Mountain College ??
• J. Robert Flores, National Law Center for Children and Families ??
• Albert F. Ganier III, Education Networks of America ??
• Michael E. Horowitz, Department of Justice ??
• Donna Rice Hughes, Author, Kids Online/Founder, Protectkids.com ??
• William M. Parker, Crosswalk.com ??
• C. Lee Peeler, Federal Trade Commission [2C]
• Gregory L. Rohde, Department of Commerce/NTIA  [1G]
• C. James Schmidt, San Jose State University [1F]
• William L. Schrader, PSINet  [1B]
• Larry Shapiro, Walt Disney Internet Group [1G | 2D]
• Srinija Srinivasan, Yahoo! Inc. [1G | 2D]
• Karen Talbert, Nortel Networks [1B]
• George Vradenburg III, America Online, Inc. [1G | 1B | 2D]

When you review the composition of the commission, you will note that there was:

• only 1 representative from businesses  providing domain services
• no representatives from Internet filtering or blocking service providers
• only 1 representative from labeling or ratings services

When you consider that 1 of the commissioners resigned leaving 18 representatives, Seven (7) of the commissions or 39% of the commission represented first amendment rights advocates or special interest groups.  This contradicts the recommendations set out in Section 1405 of the Study by Commission on Online Child Protection.  The result of this imbalance is that:

• the commission did not include sufficient industry representatives
• the commission arbitrarily chose to include first amendment rights concerns as a prominent consideration.  The inclusion of undermines the commission’s ability to objectively evaluate the technologies and methods proposed.
• the commission lacked sufficient expertise to evaluate the testimony, methods and technologies presented to them.

2.  COPA arbitrarily chose to include first amendment rights as the most prominent consideration in its evaluation of potential methods and technologies to protect children online from harmful content

"Privacy" refers to potential and actual risks to information that may or may not be kept secure. "First Amendment" refers to impact on overall First Amendment values concerning the free flow of information, rather than narrowly to actions taken by governmental actors. The Commission directly rated only adverse effects on law enforcement but comments will note where a technology or method could create specific positive benefits for law enforcement.  [Final Report of the COPA Commission, October 20, 2000, Section 2,  Paragraph 4.]

Under the direction of Jerry Berman, J. Robert Flores and several other prominent commissioners, the COPA commission arbitrarily chose to adopt the issue of First Amendment rights as one of the prominent considerations for evaluating new technologies and methods of protecting children from harmful content.  This was done under the auspices of the catch all in Section 1405 (C) (3) (F) of the Child Online Protection Act. 

Nowhere in the COPA legislation is there an explicit or implied reference to the First Amendment.  The term First Amendment appears thirty-nine times in the final COPA report.  Because the majority of these new technologies and methods by there very nature are intended to ‘restrict the free flow of information’ to minors, by adopting this consideration, the Commission has undermined it’s ability to fulfill its mandate. 

The following cases site evidence proving that top-level domain names and the majority of other technologies and methods proposed do not restrict First Amendment rights:

The Court of Appeals for the Second Circuit recently concluded that the existing generic top-level domain names (e.g., .com, .gov, .edu), all of which are limited to three letters, do not constitute protected speech. [Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d at 585]

“The DNS has already undergone considerable change in the Internet's brief history to date, and may undergo even more radical changes in the near future under the auspices of ICANN and DNSO. There is nothing inherent in the architecture of the Internet that prevents new gTLDs from constituting expressive speech. [National A-1 Advertising, Inc.and Lynn Haberstroh v. Network Solutions, United States District Court, the District of New Hampshire, CV-99-033-M 09/28/00]

A domain name is "simply a routing instruction that helps computers find each other."  “There does not appear to be a requirement that a computer user wishing to establish an Internet site have a domain name at all. This is because domain names serve the sole purpose of making it easier for users to navigate the Internet; the real networking is done through the IP numbers."  [PGMedia, Inc. v. Network Solutions, Inc., 51 F. Supp. 2d 389, 408 (S.D.N.Y. 1999), ), aff'd sub nom. Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2d Cir. 2000).]

“A recent and novel function such as domain name registration hardly strikes us as a 'quintessential' government service."  [See also Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999) cert. denied, 120 S.Ct. 934 (2000).]

3.  The commission lacked sufficient funding and technical expertise to properly evaluate the technologies and methods proposed.

The Commission is concerned that its lack of funding and short timetable has limited the inquiry in which it has been able to engage. We anticipate that, with additional resources and an extension of the statutorily allotted time for submission of this report, the Commission would have undertaken the following efforts to provide the Congress with a more in-depth and detailed report:

1. Engage in a more robust analysis of technologies and methods.

• Conduct a more in-depth examination of individual technologies. This examination could include convening additional hearings on technologies about which we received insufficient testimony and observing technology demonstrations.
• Present our recommendations for review by a panel of technical experts.
• Investigate new technologies that came to the Commission's attention.
• Clarify and break out the criteria and assumptions for evaluation of technologies and methods to allow the Commission to make more meaningful and specific assessments of individual technologies. Such an approach would allow the Commission to examine the distinct Constitutional and privacy impact, as well as the usefulness of these technologies in the home, school and libraries.

2. Investigate the criteria and explore models for an independent testing lab that would provide consistent, reliable evaluation of technologies and provide an optimal service to the industry and consumers.

3. Solicit input from additional operators of filtering and monitoring systems.

While this additional effort would have been desirable, it does not detract from the fact that the information gathered by the Commission was significant in quality and quantity, and provides an ample basis for our conclusions and recommendations.  [Final Report of the COPA Commission, October 20, 2000, Section 5]

The commissions comments and recommended are brief and unsubstantiated, suggesting that:

• the COPA Commission lacked the ability to properly evaluate the many technologies and methods being proposed. 
• the COPA Commission lacked the capital to properly evaluate the many technologies and methods being proposed. 

4.  COPA may have not completely evaluated the benefits a TLD would offer to the law enforcement community

COPA’s Position:  The Commission directly rated only adverse effects on law enforcement but comments will note where a technology or method could create specific positive benefits for law enforcement.

ICM Registry’s Response:  ICM Registry's proposal for dotXXX significantly augments law enforcements activities by:

1. Organizing the content into a prominent destination which law enforcement can more directly monitor.

2. Law enforcement will have access to more detailed registrant technical and administrative information, making illegal activity easier to manage.  Unlawful material will still not be distributed with a dotXXX designation.

5. COPA made a short-term rather than long-term evaluation of the potential effectiveness of potential technologies and methods.  

“The Commission⁶ rated each technology or method in light of both its current effectiveness and near-term potential effectiveness, relative to other technologies and methods, in reducing access by children to harmful to minors materials (when used along with other related technologies and methods).” [Final Report of the COPA Commission, October 20, 2000, Section 2,  Paragraph 1.]

Technology is always changing and growing.  New technology cannot be evaluated in terms of its ‘current and near-term potential effectiveness.’

The Commission should have emphasized the long-term potential of the technologies and methods proposed.  Historical, technology moves through several stages of evolution and maturity.  COPA’s evaluation should have been sensitive to this responsiveness.

6.  COPA’s decision to only support labeling and rating technology undermines the efforts of many groups offering other new technologies and methods.  

The findings of the commission indirectly undermine the continued development of new technologies and methods to protect children.

COPA should drafted its comments and recommendation in order to be supportive of all new technology and methods being proposing to protect children online.  By only supporting rating and labeling technology, the COPA Commission undermines the efforts of a wide variety of companies and organizations developing creative technologies and methods of  protecting children online.

7.  COPA’s comments failed to evaluate the potential for a TLD to become an effective rating or labeling system for Internet content.

8.  COPA’s recommendations are all indirectly support our top-level domain registry proposal.

9.  Don Telage and the COPA Commissions support of First Amendment rights concerns could undermine ICANN’s ability to offer new competitive TLD registries

By supporting the COPA Commissions final report, Don Telage, Chairman of both the Commission and Network Solutions is supporting First Amendment rights advocates and special interest groups and contradicting the legal representations of his own company, Network Solutions Inc.

"The work of this Commission shows that people holding widely-divergent political points of view can reach consensus as to the strengths and weaknesses of technologies and methods that may help protect America's children from accessing "harmful to minors" material on the Internet." [Don Telage, Chairman, Executive Advisor for Global Internet Strategy Network Solutions Inc.
Chairman, Commission on Online Child Protection, PERSONAL STATEMENTS OF COPA COMMISSIONERS COMPANION VOLUME TO THE COMMISSION ON ONLINE CHILD PROTECTION (COPA) REPORT TO CONGRESS, October 20, 2000, Paragraph 3]

Attachment #3

Sent by Courier & by Facsimile

November 1, 2000

Mr. Louis Touton
Vice President, Secretary, and General Counsel
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Ray, CA 90292

Re:      ICM Registry, Inc. Application to ICANN to become the Registry Operator for the .XXX top level domain name

Dear Mr. Touton:

ICM Registry would like to advise ICANN of the following items in connection with our application to become the registry operator for the .XXX top-level domain. These items were going to be disclosed to ICANN during our requested in person interview. This information does not in any way alter our originally submitted proposal, it is only supplemental information that ICANN may wish to consider in its evaluation process:

1. Within ninety (90) days of ICANN's public notification that ICM Registry is an accredited registry for the proposed top-level domain, Jason Hendeles, the Chairman and President of ICM Registry, Inc. shall divest in excess of 75% of his total shares outstanding in A Technology Company, Inc. an ICANN accredited and operational registrar.  ICM Registry. Inc. also will employ appropriate safeguards, approved by ICANN, to ensure that revenues and assets of the registry are not utilized to financially advantage any specific registrar activities to the detriment of other registrars.

2. On January 14th, 1997, A Technology Company, Inc. filed a trademark application for the mark .XXX.[1]  in the United States Patent and Trademark Office. A Technology Company has elected to let this application lapse in light of existing federal case law and guidance from the United States Patent and Trademark Office which you accurately referenced in your letter dated October 23, 2000 to Mr. John M. Cone Esq.

3. ICM Registry has retained Derek Newman of Newman & Newman[2]  to assist in building consensus among the adult content industry for our proposal.   Mr. Newman’s skills and experience include Internet law, intellectual property law and First Amendment rights issues. Mr. Newman is widely respected in the adult content industry and was actively involved in proposing legislation to the United States Senate Commerce Committee on hearings to regulate pornography on the Internet. Mr. Newman will be a prominent spokesperson and outside legal counsel for ICM Registry’s application to ICANN.

Please contact us if you have any questions or require any additional supporting documentation confirming the information presented above.

Sincerely,

Jason Hendeles

President

ICM Registry, Inc.

cc. Jose I. Rojas, Esquire, Holland & Knight LLP

Michael Palage, ICM Registry, Inc.

Attachment #4

SENT VIA E-MAIL

November 14^th, 2000

Louis Touton

New TLD Applications Department

Internet Corporation for Assigned Names & Numbers

4676 Admiralty Way, Suite 330

Marina Del Rey, CA 90292-6601

Re: Report on New TLD Applications (November 9, 2000)

Dear Sirs,

In light of ICANN's decision not to allow individual presentations, please accept this letter as supplemental information to our original submission dated October 2, 2000. 

Introduction

On October 2, 2000, ICM Registry submitted an application to the Internet Corporation for Assigned Names & Numbers (ICANN) for the creation of a .XXX and .KIDS top-level domain name. ICM Registry’s proposal introduces the concept of a next generation ratings system and a strong non-profit program to protect children on the Internet. This unique combination of solutions will better manage adult-oriented content and offer a wide variety of enhanced ways of protecting children online. 

ICANN’s evaluation team was charged with reviewing ICM Registry’s proposal to become the registry operator for .XXX and .KIDS, and to evaluate the company’s proposals under the following considerations:         

• The need to maintain the Internet's stability, particularly in terms of protecting domain-name holders from the effects of registry or registration-system failure.
• The extent to which the proposal would lead to an effective "proof of concept" concerning the introduction of top-level domains in the future. This includes the diversity the proposal would bring to the program, such as fully open top-level domains; restricted and chartered domains with limited scope; non-commercial domains; and personal domains; as well as a variety of business models and geographic locations.
• The enhancement of competition for registration services at the registry and registrar level.
• The enhancement of the utility of the DNS.
• An evaluation of delegating policy-formulation functions for special-purpose TLDs to appropriate organizations.
• The extent to which the proposal would meet previously unmet needs.
• The importance of appropriate rights protection (including intellectual-property rights) in connection with the TLD’s operation, especially during the start-up phases.

Executive Summary

ICM Registry is confident its proposal meets all the criteria set by ICANN, and that ICMR’s unique, non-profit and for-profit business model is an important first step in protecting minors from harmful material online, one of the most significant problems on the Internet today. 

Features of ICM Registry’s proposal include:

1. Next-generation domain-based rating system. The enhancement of the DNS’s utility through the creation of a domain-based rating system for adult-oriented content.
2. The promotion of a code of conduct for the online adult-content industry. With the support and direction of the ICM Registry Policy Advisory Board, ICM Registry proposes to work cooperatively toward the development of a code of conduct for the adult-content industry.
3. A non-profit company to educate, conduct R&D and protect children online. ICM Registry proposes to create a non-profit company to fund an online educational campaign, evaluate the many child-protection technologies andprovide reports to the public about the capabilities of these technologies. In addition, it will invest in the research and development of technology solutions to the problem of protecting children online. ICM Registry’s proposed non-profit company has the largest percentage per registration and dollar non-profit contribution of any registry proposal to ICANN.
4. An industry-led policy advisory board (PAB). Formed to develop registration policy and respond to legal and policy-related issues, the PAB will be a broad coalition of the Internet's business, technical, academic and user communities, and will be chaired by leading industry adult-content providers. (See also “An Industry-led Policy Advisory Board” under “Supplementary Information” below.) 
5. An effective "proof of concept.” ICM Registry’s proposal will lead to an effective "proof of concept" concerning the introduction of the next generation ratings system on the Internet. The many benefits of having a .XXX registration will motivate adult-content providers to voluntarily host their content from the .XXX domain.
6. A strong technical and financially complete proposal. ICM Registry’s proposal demonstrates realistic business, financial, technical and operational plans.
7. A strong IP protection and sunrise strategy. ICM Registry has submitted thestrongest and most detailed proposal in terms of addressing the question of rights protection, including both common-law and trademark intellectual-property rights, especially during the start-up phases.
8. Enhanced competition for registration services. ICM Registry’s senior management is recognized for its technical and political expertise. As trusted and responsible representatives within the ICANN process, the team members have been actively involved in the consensus-building process since 1997. 
9. Enhanced competition for registration services. ICM Registry’s proposal offers enhancedcompetition for registration services at the registry and registrar level through the expansion of new, adult-oriented domain registration services.

In developing our proposal, ICM Registry consulted with: established Internet businesses and service providers; industry-leading adult-content providers; intellectual-property organizations; prominent academic representatives; child protection advocacy groups; many of the COPA commissioners; First Amendment rights organizations; law-enforcement agencies; and a variety of Internet user communities. ICM Registry’s model to become the next-generation system for rating and identifying Internet content was developed by responsively analyzing the concerns and needs expressed by this broad coalition of representatives. ICM Registry continues to cooperatively enhance our proposal and to coordinate the development of policy through private-sector, bottom-up, consensus-based measures.

Supplementary Information

a. Next-Generation Domain-Based Rating System

In light of the proprietary nature of the technology developed, ICM Registry, in Section D13.2.1 of our Registry Operators Proposal, formally proposed to present ICANN with detailed information describing this advanced new service. In light of ICANN’s decision not to allow applicants to present their proposals, please find enclosed a summary providing additional information about our advanced new content-rating service.

ICM Registry proposes to create a next generation rating service. ICM Registry’s rating system will significantly expand the effectiveness of traditional rating services by both expanding their ability to secure use by adult content webmasters and by enhancing the effectiveness of traditional rating and filtering technologies.  ICM Registry’s rating service continues to be a consensus-based, industry-led strategy.                                 

Upon registration of a .XXX domain, registrants will voluntarily select those ratings that best describe the content on their website. Policy for this new system will be led by the ICM Registry Policy Advisory Board, which will represent and the support the recommendations of both prominent adult-content representatives and the broader Internet community. Registrants will have the opportunity to make modifications to their rating simply by making changes to the relevant new fields within their .XXX domain-name record. 

The following is an example of the data fields that ICM Registry proposes be added to .XXX domain-name records at the root level:

ICM Registry’s proposed rating system will be responsive to other popular rating systems, and will work to enable them to take advantage of ICM Registry’s domain rating system.  ICM Registry will also be responsive to recommendations from individuals, companies and organizations. The Policy Advisory Board, with the leadership of the adult-content community, will work cooperatively to develop the next-generation system for rating and identifying Internet content. (See also “The Development of a Code of Conduct” below.) ICM Registry will audit Websites from time to time to ensure .XXX registrants are properly educated on the ICM Registry rating process.

ICM Registry commits that this service will be free to the end-user. ICM Registry also commits that this service will restrict First Amendment rights.

c. The Promotion of a code of conduct for the online adult-content industry

In addition to ICM Registry’s goal of developing a next-generation rating system, the company has begun discussions with industry leaders in the adult-content industry to develop an industry-led code of conduct. This code of conduct would discuss:

• Voluntary efforts to provide a standard format for front pages of commercial adult-content sites
• Voluntary efforts to adopt the most effective technologies for verifying age, and to enhance the effectiveness of these technologies.
• Voluntary efforts to comply with federal and state laws applicable to unsolicited commercial email, and not to use mass unsolicited emails likely to include addresses available to children to promote adult content. Efforts should be made to explore ways to direct commercial email to adults with standards of disclosure that the email is promoting explicit sites.
• Voluntary efforts to develop an acceptable-use policy. This will disclose to parents what safeguards and technology are available to protect them and their children.
• Voluntary efforts to avoid the use of metatags that result in adult Websites being selected by search engines in response to searches seeking information of a nonsexual nature, and to avoid the posting of search-engine responses containing sexually explicit text or graphics.
• Voluntary cooperation with Internet service providers to develop “best practices” to protect minors and to ensure First Amendment rights concerns are addressed. ICM Registry will also work to ensure legal adult content is unrestricted.
• Voluntary cooperation with international law-enforcement agencies to support their efforts to prosecute violations.

c.  A non-profit company to educate, perform R&D and protect children online.

After consulting with the other submissions for a green-space, top-level domain for children, ICM Registry has decided to withdraw its proposal to develop a non-profit .KIDS registry. As per Section E2, Volume – Description of TLD Policies, ICM Registry has decided to donate the money allocated for this initiative toward the creation of the Child Online Protection Organization (COPO), a non-profit organization. 

COPO is proposed as a nonprofit, private-sector, global corporation formed by ICM Registry and a broad coalition of the Internet's business, technical, academic and user communities. COPO is dedicated to protecting children online from harmful content, and to coordinating policy through private-sector, bottom-up, consensus-based measures.

COPO will coordinate a major educational campaign to promote public awareness of technologies and methods currently available to protect children online. It will also independently evaluate child-protection technologies and provide reports to the public, and will work with adult-content providers, filtering, blocking, monitoring companies and search engines to develop technologies that protect children without restricting the First Amendment rights of Internet users.

COPO will receive funding from ICM Registry and the private sector, including industry foundations and public-interest foundations. It will provide international Internet users with:

• An online educational campaign. COPO will fund a Website and an educational campaign to promote public awareness of technologies and methods available to protect children online. Public education will be done in a sustainable manner that effectively reaches families both online and offline. This campaign will include:

ü       The importance of caregivers’ involvement in a child’s online activities.

ü       The availability of both online and offline resources to assist both caregivers and children.

ü       The range of available technologies that can protect children online, and the testing and assessment of these technologies.

ü       Access to child-friendly sites and .KIDS domains, subject to ICANN approval.

ü       A comprehensive educational site where families can obtain detailed information, report any problems, and find links to technologies and resources.

ü       Access to resources, including information about law-enforcement and child-advocacy organizations.

• An independent evaluation of child-protection technologies. COPO will allocate resources for the independent evaluation of child-protection technologies and will report to the public on the capabilities of these technologies. These reports will also provide consumers with objective, well-researched information on the features, effectiveness, prices, search criteria, transparency, flexibility and ease of use of child-protection technologies.
• Research and development of technology solutions. COPO will work with adult-content providers, filtering, blocking, monitoring companies and search engines to develop technology that does not restrict Internet users’ First Amendment rights.

ICM Registry has allocated significant funding to enable COPO to perform these services, as can be seen in the chart below.

ICM Registry proposes that COPO contributions over the four-year term of accreditation should initially be allocated as follows (subject to change from time to time by the representatives of COPO):

In its final report, the COPA Commission expressed concern that its lack of funding and short timetable limited its inquiry. The Commission suggested that, with additional resources, it would have provided Congress with a more in-depth and detailed evaluation of individual technologies.

ICM Registry proposes to both fund and perform some of the functions recommended in the COPA Commission’s final report. ICM Registry has developed relationships with industry-leading domain-technology partners to assist with both for-profit and non-profit technology-development initiatives. Some of these relationships include: I-DNS International, Inc.; Neteka; and Verisign Global Registry Services.  No formal arrangements have been made, but subject to ICANN’s accreditation of ICM Registry’s proposal, the company is confident that contracts can be developed and presented to ICANN in short order.

D.         An Industry-Led Policy Advisory Board (PAB)

As per our letter of November 3, 2000, to Lisa Polanski, ICM Registry has proposed to contribute US$4.00 per .XXX domain registration exclusively to supplement legal fees and support costs associated with its Policy Advisory Board. ICM Registry anticipates the following legal and policy contributions over the term of the company’s accreditation:

ICM Registry proposes that contributions to legal fees over the four-year term of accreditation should be allocated as follows:

E.         An effective "proof of concept”

ICM Registry’s .XXX will become an effective proof of concept because the company will continue to work to develop consensus between the diverse representatives involved in this process.

ICM Registry is also exploring ways to provide not only additional legal protection but also additional advantages to becoming a .XXX registrant. These advantages include:

• The availability of new domain names. New names offer new opportunities to generate traffic and revenue.
• Enhanced search-engine capabilities. It is likely that search engines will modify existing search algorithms, allowing priority placement in connection with adult-content-related searches.
• Potential for litigation and disputes is minimized. ICM Registry will actively lobby for affirmative defenses on behalf of all .XXX registrants. This affirmative-defense strategy is intended to give .XXX registrants added protection from legal action for the distribution of adult-oriented content. By securing a .XXX registration and abiding by a mutually agreed-upon code of conduct, adult-content Webmasters can argue that they have taken reasonable steps to inform and protect minors from accessing adult content online.
• Brand promotion & development. .XXX domains are easier to brand and remember, since there is universal recognition of the goods and services associated with this letter string.
• Adult content will be categorized, not segregated. .XXX will be a voluntary registration service.
• Consensus policy-development. Registrants will have an opportunity to participate in the development of registration policy and procedures to best represent their needs. 
• Recognition for their non-profit contribution. A significant portion of registration fees will go to fund COPO.

F.         A strong technical and financially complete proposal

ICM Registry’s senior management is recognized for its technical and political expertise. As trusted and responsible representatives within the ICANN process, the team members have been actively involved in the consensus-building process since 1997.  ICM Registry hassecured industry-leading registry-service providers, supporting-application service-provider and a variety of value-added sub-contractors which include industry-leading domain-name research and development partners. These companies include: .TV Corporation International; Exodus; Verisign Gobal Registry Services; DMR Consulting; i-dns Corporation; and Neteka.

G.         A strong IP protection and sunrise strategy

According to ICANN’s Intellectual Property Constituency (IPC) report on proposed TLDs, ICM Registry’s .XXX proposal tied with three other proposals as having the strongest strategy to protect the rights of others, including both common-law and trademark intellectual-property rights, especially during the start-up phases.

H.         Enhanced competition for registration services

ICM Registry’s proposal will enhance competition for registration services at the registry and registrar levels through the expansion of our new adult-oriented domain-registration services.

ICM Registry continues to cooperatively enhance our proposal and to coordinate the development of policy through private-sector, bottom-up, consensus-based measures.

Our proposal was the only proposal that seriously addresses one of the most serious problems on the Internet today-the protection of children from adult-oriented content. 

ICM Registry continues to work with the broader Internet community to generate consensus.  

Sincerely,

Jason Hendeles
ICM Registry, Inc.

cc:       Louis Touton, Esq., Vice-President, Secretary, and General Counsel, ICANN
Vinton G. Cerf, Chairman, ICANN
Alejandro Pisanty, Vice-Chairman, ICANN
Amadeu Abril i Abril, Director, ICANN
Karl Auerbach, Director, ICANN
Robert Blokzijl, Director, ICANN
Ivan Moura Campos, Director, ICANN
Jonathan Cohen, Director, ICANN
Philip Davidson, Director, ICANN
Frank Fitzsimmons, Director, ICANN 
Ken Fockler, Director, ICANN
Masanobu Katoh, Director, ICANN
Hans Kraaijenbrink, Director, ICANN
Sang-Hyon Kyong, Director, ICANN
Andy Mueller-Maguhn, Director, ICANN
Jun Murai, Director, ICANN
Nii Quaynor, Director, ICANN
Michael Roberts, Director, ICANN
Helmut Schink, Director, ICANN
Linda S. Wilson, Director, ICANN
John Funk, Jones, Day, Reavis & Pogue
Paul Goldean, Jones, Day, Reavis & Pogue
Michael D. Palage, Vice President Policy, ICM Registry, Inc.
Jose I. Rojas, Holland & Knight LLP
Derek A. Newman, Newman & Newman, LLP

Attachment #5

SENT VIA E-MAIL

December 13, 2000

Louis Touton

Internet Corporation for Assigned Names & Numbers

4676 Admiralty Way, Suite 330

Marina Del Rey, CA 90292-6601

Re: PRE-REGISTRATIONS IN DECLINED PROOF OF CONCEPT TLDs

Dear Louis,
 
It has come to the attention of ICM Registry that Domain Name Systems Inc. and other companies have begun to offer pre-registrations for .XXX domain names. This letter is a request for ICANN's guidance as to how ICM Registry should respond to TLD registries that operate on private root servers and offer second-level domain name pre-registrations.  We feel ICANN's actions with regard to pre-registration (http://www.regland.com  and http://www.nameit.net) and IO Design’s .WEB TLD application have sent mixed signals to the Internet community, and we are therefore writing this letter to seek clarification.

As you will recall, ICM Registry filed a submission during ICANN's recent registry proof-of-concept process. ICM Registry was the first and only applicant applying exclusively for .XXX and for an adult top-level domain name. Although the staff report noted the sound intellectual-property protection, business plan, technical and financial aspects of our proposal, it was nevertheless deemed premature for the proof-of-concept stage.

While ICM Registry was, of course, disappointed by the Board's decision, our company also recognized the limited size of ICANN's "shopping basket." Currently, we have turned our full attention to enhancing ICM Registry's proposal and building consensus within the adult-content and broader Internet communities in preparation for the next submission process.

However, our efforts have recently been undermined by third parties that are advertising registration services for the .XXX TLD in an alternate root service. Domain Name Systems, which claims to be an "accredited registrar," prominently displays on its Website (http://www.domainnamesystems.com/) the following message: "now available through our alternate registry system. The ones ICANN didn't want - adult domains .XXX and .SEX."

ICM Registry is informed that this registration services provider is processing and charging $25 per .XXX domain-name registration in this alternative root (see the attached Web-page printouts).

ICM Registry recognizes the history of IO Design in connection with the .WEB TLD. However, ICANN should be aware that ICM Registry owns and operates the assets of ALTERNIC, one of the Internet's first private, alternative TLD root-server networks. ALTERNIC's assets include a private registry that has been operating the .XXX TLD since 1996. The company has also operated the .XXX domain on the Open Root Server Confederation since its inception.

After consulting with ICANN stakeholders, ICM Registry discontinued its private registry in order to show its support for ICANN and the Department of Commerce white paper process.  ICM Registry filed a trademark claim for .XXX in both Canada and the U.S. in 1996, but decided to allow the trademark applications to lapse as yet another show of support for ICANN and the ICANN process.  In other words, ICM Registry has deliberately chosen to play by the new rules as set forth by the ICANN Board.

ICM Registry supports the ICANN process as evidenced by the fact that we continue to address the concerns about our application raised by ICANN's Board of Directors and the ICANN TLD evaluation team. But we are seriously concerned that, in light of both these pre-registrations and also IO Design’s .WEB's privately operated registry, we may be unduly harmed in the next submission process.

We feel there is a strong possibility that pre-registrations will create confusion in the general marketplace. In addition, we believe pre-registration could generate a wave of support from registrants that would hurt our ability to be evaluated fairly in the next round of submissions.  

ICM Registry submitted the only proposal that addresses adult-oriented content, which makes up the largest percentage of content and traffic on the Internet today.  We have also scrupulously followed ICANN guidelines, and continue to implement its recommendations as we strengthen our proposal and work with Internet communities to generate consensus.

Given our on-going, active support of ICANN and its objectives, we strongly urge the Board to revisit its recommendation in connection with the .WEB TLD, and make a statement to the Internet community that addresses the role of alternate roots and how, if abused, they have the potential to undermine the ICANN process.  We also strongly urge ICANN to support those applications that meet ICANN's threshold requirements and that continue to build consensus among the broader Internet community.
 
Sincerely,
 
Jason Hendeles
ICM Registry, Inc.
 

[1] Trademark Application Serial Number: 75/225757, Date of Filing 01/14/1997.  Mark: .XXX, Mark Type(s): Service Mark. 

[2] Derek Newman, Newman & Newman, Attorneys at Law, LLP, 1001 Fourth Avenue Plaza, Suite 3200, Seattle, Washington  98154  USA, website: http://www.newmanlaw.com Tel: 206.624.6334 

[3]Gross new contributions were calculated per new .XXX second level domain name per year in US dollars.  Additional contributions to legal fees and the PAB will be generated from multiple year registrations.

[4]ICM Registry's Operator Proposal, Section D13.2.5

[5]Gross new contributions were calculated per new .XXX second level domain name per year in US dollars.  Additional contributions to legal fees and the PAB will be generated from multiple year registrations.