Federal Agencies Quash Suit from .xxx Domain Backer
ICM Registry now examining 'all of its legal options,' attorney says.
By: Justin Bourne
Posted: 03/18/2008
TORONTO - A federal judge has granted
summary judgment to the Bush administration in a Freedom of Information Act lawsuit
filed by
ICM Registry, the company
behind the rejected .xxx top-level domain.
ICM Registry had been trying to uncover government documents via the
lawsuit.
ICM Registry proposed the porn-oriented .xxx domain to the Internet
Corporation for Assigned Names and Numbers in 2004. ICANN approved .xxx in June
2005, but the Bush administration objected two months later, and ICANN's board then
reversed its approval with a 9-5 vote.
Stuart Lawley of ICM Registry filed a Freedom of Information Act request to determine
the influence conservative groups had on the Bush administration's decision and
released the first round of documents in May 2006. The State Department and
Commerce Department withheld the documents, claiming that they were part of an
internal "deliberative process."
Under the misconduct exception of the Freedom of Information Act, ICM Registry
argued, the documents should be handed over if there is reason to believe
government misconduct, such as improper influence by conservative groups, was involved.
In his ruling on March 12, U.S. District Judge James Robertson in Washington, D.C.,
loosely sided with ICM Registry, noting that the argument would apply if the
administration "opposed .xxx for nefarious purposes" but none had been found.
"Whatever the boundaries of the misconduct exception, they cannot be as
expansive as ICM declares them to be," Robertson said in his ruling. "Absent
some showing that consideration of domain name and Internet policy is outside
these departments' and agencies' domains - and none has been made - or that
they opposed .xxx for nefarious purposes, their action is not misconduct within
the meaning of the exception to the deliberative process privilege.
"If the government ‘leaned on' ICANN
or any other decision-maker that it did not directly control, (its) policy
choice to do so is discoverable under FOIA. That choice (if it was made) was
not ‘political abuse,' however, and so the deliberations that underlay it are
properly exempt from disclosure."
Robert Corn-Revere, an attorney representing ICM Registry, said ICANN can be
sued for denying the .xxx top-level domain.
"ICM Registry is planning to examine and pursue all of its legal options,"
he said Tuesday. "We were waiting to see what the outcome of this FOIA
litigation was."
