TORONTO, ON CA — Claiming to have obtained documents from the US Department of Commerce that provide evidence of Commerce Department meddling in ICANN’s approval process, ICM Registry’s president Stuart Lawley said his company is considering appealing ICANN’s rejection of the proposed .XXX sponsored top level domain.“We’ve done everything that’s been asked of us, we’ve behaved in a positive way, in a way we felt was acceptable to ICANN,” Lawley told Computer Business Review Online. “We’re just considering our options at this point.”

According the report on CBROnline.com, Lawley says he has obtained documents from the Commerce Department under a Freedom of Information Act request and that the documents contain “a pile of government correspondence” that “sheds light on how Commerce saw its role in the .XXX approval process, and in how much weight was given to the opinions of the Christian Right.”

One option for ICM is to appeal to ICANN’s “Reconsideration Committee,” a committee that has never granted such a request for reconsideration, according to published reports.

Among the 12 items that any request for reconsideration must contain, according to the ICANN website, is “a detailed explanation of the material information not considered by the Board and, if the information was not presented to the Board, the reasons the party submitting the request did not submit it to the Board before it acted or failed to act.”

If Lawley can show, through the documents he has obtained, that undue influence was shown by Commerce or that some members of the ICANN board who voted against .XXX would not have done so if they had been aware of the information in the documents, or supply “reasons why the staff’s action or inaction was inconsistent with established ICANN policy(ies),” ICM might be able to get an official reconsideration from ICANN.

Lawley has not yet released the documents, so it’s not clear whether the information contained in them would be sufficient to spur reconsideration of the .XXX proposal.

ICANN president Paul Twomey dismissed the notion that the board’s decision was the result of political pressure and Commerce department influence.

“I think that to say that this board, as international as it is, was somehow dancing to political intervention from the US government is ill-founded and ignorant,” Twomey said at a press conference.

That hasn’t stopped some officials from asserting definitively that ICANN folded under pressure from Commerce and conservative activists.

“We see here a first clear case of political interference in ICANN,” a spokesperson for Viviane Reding, the European Commissioner for Information Society and Media, told Reuters.

Twomey begged to differ, saying that the spokesperson in question “should look at who sent the most recent communication.”

“The most recent communication came from the UK,” noted Towmey. “I find that statement to be ill-founded.”

The communication Twomey referenced came in the form of a letter sent by Martin Boyle, the UK representative to ICANN’s Governmental Advisory Committee on May 9th, the day prior to ICANN’s vote on the .XXX proposal.

“The UK expresses its firm view that if the dot.xxx domain name is to be authorised,” wrote Boyle, “it would be important that ICANN ensures that the benefits and safeguards proposed by the registry, ICM, including the monitoring all dot.xxx content and rating of content on all servers pointed to by dot.xxx, are genuinely achieved from day one.”

Twomey said that some members of the Board read that to mean that if ICM could not be counted upon to police the content of sites on .XXX domains, as was stipulated in the contract, then ICANN would absorb the responsibility of policing the TLD itself, something ICANN isn’t designed to do.

“Was ICANN itself expected to be the enforcer of every country’s or every jurisdiction’s view of online content on all the domains under this TLD?” said Twomey. “Some of the board members didn’t know how that was going to be achieved.”

Whatever the reason, or combination of reasons, for the ICANN Board’s decision, even if Lawley and ICM can get the Reconsideration Committee to recommend that the Board reverse its decision, it might not result in a victory for ICM.

“The Board shall not be bound to follow the recommendations of the Reconsideration Committee,” state the ICANN Bylaws.

Another option for ICM is to request review by an independent, third-party review board. Should ICM opt for the third-party route, per the terms of Section 3 of Article IV of the ICANN Bylaws, ICM would have to show that the Board’s action in denying ICM’s application was “inconsistent with the Articles of Incorporation or Bylaws” of ICANN.

A request for external review are referred to an Independent Review Panel (IRP), which is then “charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws.”

If the IRP were to find that the board’s actions were not consistent with the Articles of Incorporation and Bylaws of ICANN, then the IRP is empowered to: “(a) request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties; (b) declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and (c) recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP.”

Thus, even if an IRP recommended reconsideration of the Board’s decision, the IRP does not, strictly speaking, have the power to overturn the Board’s vote on .XXX, or even force a new vote.

In other words, regardless of the avenue of appeal ICM chooses (should they, in fact, choose to appeal), the fate of their .XXX application rests, ultimately, in the hands of the ICANN Board.