Marc Naimark's writing and interviews _____________________________________________________

Community chess: Is ICANN changing the rules for the “.gay” top level domain?

Posted in internet, Slate.com, web by marcnaimark on 2014/05/07

blogslatedotgayExpanded version of an article appearing on Slate.com here:
http://www.slate.com/blogs/outward/
2014/05/07/icann_and_the_fight_for_gay_
and_lgbt_does_the_gay_community_even_exist.html


If all goes to plan, comments will close today in the final stage of the Community Priority Evaluation” (CPE) for the “.gay” generic Top Level Domain (gTLD). This domain is just one of the many new domains being created by the Internet Corporation for Assigned Names and Numbers (ICANN). The land rush for this first batch of new domain names is coming to a close, with some of the new gTLDs already in service. The “.gay” domain is taking much longer, due to the complex process itself and delays from ICANN, in particular with regard to the puzzling yet pertinent evaluation of whether or not there is “gay” community, and who can claim to represent it.

As I wrote last year, the whole gTLD scheme is contested by many, in particular by brand owners who will be obliged to shell out on new URLs just to protect their existing investment in internet real estate.

The new gTLDs may remind interested parties of Lex Luthor’s attempts to cash in on cheap land (if Christopher Reeve is your Superman, that would be beachfront property in the Arizona desert, while if you’re more of a Brandon Routh fan, if there is such a thing, it’s more like an entirely new continent in the Atlantic), and between various fees from applicants and more fees from anyone filing an objection, the non-profit ICANN will be churning a lot of cash (an estimated USD 92m just from application fees).

When it launched the new gTLD initiative, ICANN did take care to include domain names that were not just about the new registrars making money from the new domains. Although the bulk of applicants are still for what have come to be known as “standard” TLDs, open to the general public for registration, as the process has gone on, various classes of gTLDs have been identified.  Many of the gTLDs already approved are “geographical” TLDs, such as “.paris” or “.nyc”. Another family of new gTLDs are “brands” like “.apple” or “.gop”.

A community for .gay?

And from the start, ICANN anticipated the creation of “community” gTLDs.

The “.gay” TLD is being contested among three companies applying under standard status, and one, dotgay LLC, that has based its application as a community gTLD, described by ICANN as being restricted to a specific community with high degree of social awareness and strongly supported by the community. While it was possible to apply for a gTLD string of characters both as a standard gTLD and a community gTLD, this is not the option chosen by dotgay LLC, the entity created by marketing guy Scott Seitz to apply for “.gay” under ICANN’s  Community Priority Evaluation.

If dotgay LLC succeeds in being recognized under the Community Priority Evaluation, it automatically becomes the owner of “.gay” (that’s the “priority” part). If it fails, it must take part in an auction against commercial players that are generally trying to buy up as many TLDs as they can, with the sole interest of making the most money off them. There’s no way a community applicant can vie against well-funded operators whose only goal is to buy this real estate and sell it off to as many customers for as much as possible, with no concern for how the “.gay” addresses will be used (think “porn”, think “gay bashers”).

But what is a community? Who determines whether a community exists and who can represent its interests?

The standard examples found online of such community gTLDs are “.catholic” .thai, “.aarp”, which is rather puzzling, since “.thai”, intended for the Thai ethnic community, was one of the few new gTLDs rejected out of hand by ICANN after objections by the Thai government and the current “.th” country TLD registrar, and “.aarp” is now listed, fairly obviously, as a brand gTLD for AARP, formerly the American Association of Retired People.

Thus, of the Platonic ideal new gTLDs, only “.catholic” remains. And yet even this domain has been contested by Saudi Arabia. The Saudis filed objections on just about any new gTLD contrary to its version of Islam, including “.wine”, “bible” and…  “.gay”.

For “.catholic”, the Saudis claimed that the Vatican could not run “.catholic” because the Catholic church did not represent the Catholic community. To its credit, ICANN’s independent objector rejected these claims, in the case of the “.gay” objections, observing that homophobia, while common, was far from universal, and that there were no international laws, treaties, or conventions against homosexuality. But these objections go to show that even in the case of the Roman Catholic church, the whole point of which is to be universal, all-encompassing, and likely the most institutionally and hierarchically structured major faith in the world, the right of the Vatican to represent the Catholic “community” has been contested.

For LGBTQs, if the “gay mafia” really existed (it doesn’t, pace Bill Maher), the answer would be easy. But in the absence of a gay mafia, who represents the gays? The LGBTQ community is multifaceted, to the point that it can’t even settle on the best label for itself. Here on Outward, the convention is to use the initialism LGBTQ. In my own organization, we use LGBT. Even the “T” can change, with many favoring “trans*”, with the asterisk standing for “-gender” and “-sexual”. The current most fashionable label is “SOGI”, for “sexual orientation and gender identity”. While it’s fairly easy to see who represents the Catholics, it’s harder to see who could represent the diversity of “Christians”. Similarly for LGBTQs, who lack a college of cardinals and a Pope (Dan Savage doesn’t count), who speaks for the gays?

Even for some straighforward cases, it’s not clear who can speak for a group. The “.gop” gTLD was proposed not by the Republican National Committee, but by the Republican State Leadership Committee. The closest thing the LGBTQ community has to a single representative body is ILGA, the  International Lesbian, Gay, Bisexual, Trans and Intersex Association (founded in 1978 as IGA, it only became ILGA in 1986), and they quickly rallied Scott Seitz and dotgay LLC.

Why “.gay” rather than another term? With regard to the character string to apply for, given the many options (how about “.lgbtqiqa”?) and the expense of applying for new gTLDs, Scott Seitz had to choose just one, and decided on “.gay”, first because there were already indications that it would be the target of commercial standard applications, and second because, after consulting various LGBTQ organizations, it was a term the community could stand behind because of its stability and simplicity. Seitz created the entity dotgay LLC to file and manage the application, and if chosen by ICANN, to administer the “.gay” gTLD. In the end, dotgay LLC is the only group seeking Community Priority Evaluation for an LGBTQ-related domain.

Who’s gayer: .gay or .lgbt?

In addition to the three commercial rivals for “.gay”, there is a single non-community applicant for “.lgbt”; the history of this application is enlightening as to how the notion of “community” raises difficult questions that are perhaps incompatible with the implementation of ICANN’s essentially business-oriented launch of new gTLDs.

The “.lgbt” gTLD was proposed by Afilias, a leading registry operator, which already owns gTLDs such as “.info” and .”mobi”, and operates the TLDs for several countries, including India and Mongolia. Like many players, it is seeking a large number ofnew gTLDs, including some colors such as “.blue”, “.red”, and (for the gays?) “.pink”.

Last March, ILGA (full disclosure: the Federation of Gay Games is a member of ILGA and a supporter of the dotgay LLC application), represented by the International Gay and Lesbian Travel Association, filed an objection to the Afilias “.lgbt” application with the International Chamber of Commerce, one of the entities hired by ICANN to administer the new gTLD process.

In its objection, ILGA argued that Afilias’s operation of “.lgbt” would damage the gay community in a variety of ways, starting with the nature of the gay or LGBT “community”. ILGA observed that Afilias presumed that “.lgbt” would bring together the people living the “gay lifestyle” into a community – as if being gay were merely a lifestyle and not the expression of the essential nature of a gay person, and as if the gay community did not already exist.

In that light, ILGA added that the commercial exploitation of the gay community by the operator of “.lgbt” would be particularly pernicious, because none of the profits from the operation would serve the community, and that this for-profit-only operation would allow for abuses of the domain name that might cause the gay community harm, for example from registrants masquerading as members of the community who in fact were anti-gay activists intending to to use the registration for anti-gay purposes.

In its opening paragraphs, the ICC’s expert’s findings were quite favorable for ILGA. He did not contest ILGA’s representative status, nor the existence of a “clearly delineated community” according to ICANN’s new gTLD Guidebook: “a group that is publicly recognized as a community at a local and/or global level and has formal boundaries that enable a determination of what persons or entities form the community”, with the ‘gay” community being recognized as such “in the language of the media, scholarship, and common usage, formed by millions of individuals whose gender identities and sexual orientations are outside of the societal norms for heterosexual behavior and who […] share the awareness of their special status.” He noted that during “the last century, the gay community has grown out of individuals with that special awareness into a community in its own right and is now a worldwide presence.”

The expert recognized ILGA’s legitimacy to take part in the procedure, and the wide opposition among LGBTQ organizations to the Afilias “.lgbt” application. He admitted that the terms “gay” and “LGBT” describe the same community, stating: “it is common knowledge that the term gay community refers to this wider community, wider even than a lesbian, gay, bisexual, and transgender community, and that LGBT is one of the different abbreviations used to characterize it.”

Despite this promising beginning, the expert found in favor of Afilias. This was partly due to a strategic choice by ILGA and partly because of a lack of clarity in ICANN’s notion of what a community is, and how the new gTLDs would serve them.

In its communication, including its objection, ILGA chose to focus on the word “gay”, in line with its support for dotgay LLC. While the expert agreed that this did not preclude ILGA from objecting to an applicant for “.lgbt”, it gave ammunition to the expert to conclude that “.gay” could exist in harmony with “.lgbt”, with “.gay” serving the gay (or LGBT) community, and “.lgbt” serving more commercial interests, going so far as to imagine a hypothetical use that would not be harmful to gays, i.e., corporations highlighting their gay-friendly products, services, or policies.. In so doing, he indicated that it was imperative that there be a community gTLD for “.gay”, a decision which was outside his remit, and which will now soon be determined by ICANN.

After putting the “.lgbt” application on hold for several months, just last week ICANN reactivated the application, meaning that Afilias will be able to launch their “.lgbt” registrations. Does this indicate that ICANN intends to authorize the dotgay LLC application, or does it simply mean that they have ignored their expert’s findings? Given ICANN’s silence on the matter despite requests for clarification from ILGA, the latter seems likely.

So if both “.lgbt” and “.gay” are approved as standard commercial gTLDs, what of the legitimate interests of the gay (or LGBT) community? Will ICANN, after its expert has found that there is a gay/LGBT community and that a legitimate body (ILGA) can speak for it, deny the existence of such a community, or the ability of the applicant to represent this desire?

Peaceful coexistence?

Even if “.gay” is given community status, how will it work to have two gay-related gTLDs? Would the expert’s reasoning that there is no harm for a commercial “.lgbt” to coexist with a community “.gay”  hold in other cases? If the Vatican owns “.catholic” after Community Priority Evaluation, would it be imaginable that ICANN approve “.catholics” or “.romancatholic” under the notion that “.catholic” would serve the community of faithful while “.catholics” could serve the commercial interests of businesses selling goods and services to Catholics? That seems highly unlikely. If part of fhe reason for creating community gTLDs is to raise visibility and create an online home for a community, then how can having two competing domains do anything but sow confusion?

Of the two gTLDs, “.lgbt” will have much greater visibility. Afilias has the means and the interest to promote the widest possible use of this purely commercial gTLD, whereas by choice and by obligation, a dotgay LLC-run “.gay” would be exclusive. While dotgay LLC’s commercial rivals have used the vetting process planned by dotgay LLC to raise fears of “censorship”, it is part of the logic of a community to ensure that those using this domain name are part of the community and will make proper use of a community resource. Indeed, in its scoring mechanism for Community Priority Evaluation, the EIU requires a selection process for community gTLDs.

The propaganda and misinformation hasn’t come just from dotgay LLC’s commercial rivals: formal objections were filed by Christopher Barron, founder of GOProud, and the Metroplex Republicans of Dallas, claiming that community status should be refused for “.gay” because gay Republicans might be excluded from the domain. Barron’s objection was rejected on technical grounds (including the fact that he seems to have been acting on behalf of himself rather than the organization), while the Metroplex objections were dismissed both on standing and on the merits of their complaint. With regard to the merits, Metroplex failed to demonstrate any reason to doubt dotgay LLC’s partisan political neutrality, other than rehashing the cliché that gays are all liberals, a claim invalidated by their very existence..

The standing issue is perhaps more interesting, with the International Chamber of Commerce finding that while there clearly is a gay community, there is no evidence of a clearly delineated “gay conservative” community, and Metroplex as an entity remains isolated from the broader LGBTQ community. (The gay Republicans can always fall back on “.gop”, of course… will there be a URL “www.gay.gop”?)

ILGA appealed against the expert’s determination mainly on procedural grounds, claiming that the expert anticipated rule changes that were not in effect at the time of their filing. This appears to be a theme in the whole new gTLD process, with ICANN changing the rules along the way and making the procedures ever more complex and bureaucratic.

In particular, the guidelines for Community Priority Evaluation were determined by ICANN contractor Economist Intelligence Unit only last September, well after the launch of the new gTLD program.

In these guidelines, EIU skews the broader original understanding of “community” toward a one-to-one match between a community and an institution proposing the gTLD, including “straight-forward member definitions: fees, skill and/or accreditation requirements, privileges or benefits entitled to members, certifications aligned with community goals,etc.” While ILGA has straight-forward member definitions, including membership fees, an organization is not a community. Being gay is not like joining a club, or being baptized a Catholic.

And yet, there is a “gay” community, or an “LGBT” community, or an “LGBTQIQA” community. The name is not important, but the notion of community is. It’s one that has constantly defined itself as what it’s not, as noted by the ICANN expert, through an awareness of a special status as being outside heteronormative structures. The LGBTQ community’s members choose to define whether they belong or not, and under what gender and what label they prefer to be identified.What is at stake in the Community Priority Evaluation for “.gay” is whether LGBTQ will people determine who controls their name. After reappropriating “queer” and “gay” and “dyke”, we should not lose our ability to name ourselves just because there’s a dot in front of the word.

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