Slate / Will ICANN’s Dotgay Do-Over Be Done Well?
In late January, dotgay LLC announced some good news for those of us who favor LGBTQ community control of a dedicated space on the Web: Following a lively campaign by Internet users and LGBTQ organizations, the Internet Corporation for Assigned Names and Numbers questioned the work of the Economic Intelligence Unit, the entity it had charged with reviewing the application of dotgay LLC to own the future .gay generic top level domain, and ordered EIU to carry out a new review with a new team of evaluators. Reopening the application may lead to approval of dotgay LLC as owner of .gay, but unless the review takes into account the inherently blurred borders of the LGBTQ community, we may end up with a second, and definitive, rejection of the existence of an online “gay” community from ICANN.
As I’ve written before (here, here, and here), the creation of the .gay domain space has been a long and troubled process. The new domain is part of ICANN’s controversial decision to create new domain names alongside stalwarts like .com, .org, or .uk. This has already given us new extensions like .wedding, .london, and .audi. The whole scheme has been called a giant scam, aimed at forcing existing brand owners to buy new domains to protect their intellectual property. Such is the case of the new .sucks domain, where the only way for a company like General Motors to avoid the creation of a website at generalmotors.sucks is to buy the domain, at an annual cost of $2,500, a situation described by former Sen. Jay Rockefeller, D-W.Va., as “little more than a predatory shakedown scheme.”
ICANN offered some protection for strings (a sequence of letters like c-o-m or g-a-y), which an applicant could claim represent a “community.” If such strings were recognized as having community interest, an applicant could apply to own it, providing it succeeded in a “community priority evaluation,” which would be carried out by a third party on behalf of ICANN. Had dotgay LLC succeeded in its CPE application, which was adjudicated by EIU, it would have earned the right to own .gay, gaining automatic priority over the three “standard” (i.e., purely commercial) operators who had also applied for the string, and whose presumptive victory raised fears that .gay would devolve to a sea of porn and homophobia, rather than seeing realized dotgay LLC’s commitment to .gay serving LGBTQ organizations and businesses.
EIU carried out the community priority evaluation for .gay and determined that dotgay LLC did not earn enough points on the CPE scorecard. The EIU’s strange understanding of what a “gay” community should be—the EIU seemed to expect that LGBTQ people would all carry some sort of membership card—led to an uproar, with an online campaign describing ICANN as “broken” and calling on it to reconsider its decision. The protest campaign was a success, with ICANN using a technicality (EIU failed to take into account 54 letters of community support for dotgay LLC) to instruct EIU to carry out a new evaluation, using a new team.
The commercial rivals of dotgay LLC contest this decision (of course) and say that if there is a new evaluation, it should limit itself to considering the 54 letters. They note, correctly, that even if this reconsideration gave full points to dotgay LLC, its score would still be insufficient to support its application for community priority status. Surely ICANN is aware of this: They could have recognized EIU’s mistake but determined that since it wouldn’t make a significant difference in the final score, there was no point in carrying out a new evaluation. That ICANN did not avail itself of this option is a clear sign that it is seeking a real in-depth review of the application, possibly even suggesting a desired outcome to EIU, one that it cannot unilaterally impose for fear of litigation from the noncommunity applicants for .gay. That’s because if dotgay LLC’s CPE application fails, the string goes to auction, where its three rivals will bid for this desirable online real estate. Nothing about the way this process has gone so far suggests that the three commercial applicants would politely demur if ICANN overruled EIU and simply handed the domain to dotgay LLC.
Assuming EIU takes ICANN’s hint that it would like to see another outcome, how can the evaluator achieve the desired result? As noted, simply reviewing the missing letters won’t do the trick. At the first, failed, evaluation, dotgay LLC earned 10 out of a possible 16 points, and even if a new evaluation taking into account the letters raised that total to 12, it would still fall short of the 14 points needed.
At the heart of the matter is ICANN’s attempt to establish a one-size-fits-all concept of community. When there is a clear institutional patron for the application (e.g., the Republican State Leadership Committee for .gop, or the Pontificium Consilium de Communicationibus Socialibus for .catholic), it’s clear who can represent the proposed community. When there’s a corporate interest such as hoteliers for .hotel or Audi dealerships for .audi (both strings have been approved as “communities”), the commonality of interest is easy to determine. But rules are not for the obvious cases. Indeed, ICANN would have done well to start with .gay as a case study for potential issues in determining whether a community exists, and if so who can represents its interests.
ICANN failed to think broadly when creating the community priority evaluation process. If EIU is to work within the dodgy set of rules established by ICANN, it needs to look at the entirety of dotgay LLC’s application. And it must engage in a dialog that will bring any blurry bits of the evaluation into focus. Alas, the only party able to make the application and its context clear is dotgay LLC, and while ICANN rules allow EIU to consult applicants, they don’t require that it do so. This seems crazy: ICANN does not independently determine the existence of “communities”; it counts on applicants to do so. The least it could do would be to require that the applicant asserting the existence of a community and its fitness to defend that community’s interests be offered the opportunity to make its case and respond to any questions before a final determination is made.
There are matters that seem obvious to LGBTQ people but that appear to have puzzled the EIU. One example is the participation of allies in the LGBTQ community. The fact that dotgay LLC referred to allies in its community priority application seems to have confounded EIU: If non-LGBTQ people can be part of the community, then such a community becomes congruent with the entire population of the world and loses its raison d’être. This is just one example of a strange call by EIU that a dialog with dotgay LLC could avert. In this case, allies are not just non-LGBTQ people; they are non-LGBTQ people who support and defend equality for the LGBTQ population.
ICANN has hinted that this do-over should be a thorough review of the community priority application. It needs to tell EIU that the review must include a full dialog with the applicant. The “gay” community never ceases to talk about just what it is, who’s in, who’s out, and what letters need to be included in the LGBTQ family of initialisms. Before telling us that we’re not a community, EIU should join the conversation about what it means to be gay, when being “gay” can range from the homosexual man facing death at the hands of ISIS, a newlywed lesbian in California, a questioning teen in a suburban high school, a trans woman in Florida fighting to obtain access to the appropriate public bathrooms, an ally like Australian rugby star David Pocock who has just been criticized for calling out homophobic teammates, or any of the other multiple shapes and colors our community embraces.