ICANN is all for accountability and claims to be doing everything in its power to make itself accountable and responsive to YOU (it likes to use the second person). But in ICANN's official Response to the ICM's "Memorial on the Merits," which was just posted a few days ago, ICANN sings a different tune. There seems to be a bit of a gap between what ICANN says about accountability in the abstract (it is all for it) and what it says when accountability really threatens to alter its behavior.

ICANN begins its response by warning the Review Panel that "The Panel's declaration will not be legally binding on ICANN." It goes on to say that "The language and drafting history of the provisions governing the IRP make clear that any IRP results...are addressed to the discretion of the ICANN Board to consider." (p. 27, para 73) Moreover, ICANN claims that the Panel should severely limit the scope of its review: "decisions of the Board are entitled to significant deference." "The process was not intended to provide for a "Supreme Court" of ICANN that would address all aspects of ICANN's conduct." (p. 1, para 4).

And finally, forget about that promise to conform to "relevant principles of international law" in ICANN's Articles of Incorporation . ICANN's lawyers now say that its opponent "attempts to import "international law" and assorted claims arising under international law, but the Articles and Bylaws are clear that international law does not apply here."

As we have said before, the issue in this case is not whether you loved or hated the .xxx domain application, but whether ICANN's shifting, arbitrary and politically-influenced treatment of the applicant was acceptable. And the outcome of that decision is important, because it is the first real test of ICANN's external accountability under its Independent Review Process.