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ICANN faces first post-transition test of UN power (for real this time)

Kevin Murphy, October 7, 2016, 10:18:16 (UTC), Domain Policy

The ICANN community and United Nations agencies are heading for a clash, with governments accused this morning of trying to bypass the ICANN policy-making process.

According to the leader of an ICANN volunteer working group, governments and UN-affilated intergovernmental organizations (IGOs) have circumvented the usual ICANN consensus-building process in order to extract the policies they want directly from the ICANN board of directors and staff.

It’s the first time since the IANA transition, which happened less than a week ago, that governments have been accused of exploiting their special access to the board, and it may become a hot topic at next month’s ICANN 57 meeting in India.

Governments and UN agencies now stand accused of “bypassing the ICANN community” in order to achieve their policy goals.

But the policy being debated is not directly linked to the IANA transition, nor to the thoroughly debunked notion that the UN has taken over ICANN.

Indeed, the issue in question — the permanent protection of IGO acronyms in gTLDs — is almost embarrassingly narrow and predates the announcement of the IANA transition by at least three years, going back to at least 2011.

Basically, the policy questions that look set to cause even more conflict between governments and others are: should IGO acronyms be protected, and if so, how?

IGO acronyms are strings such as WIPO, UNESCO and OECD.

The ICANN board punted this question in May 2014, when it received conflicting advice from the Governmental Advisory Committee and Generic Names Supporting Organization.

Since then, a GNSO Policy Development Process working group has been working on recommendations. It has not yet issued its initial findings, but is close.

Simultaneously and separately, members of ICANN’s board and staff have been quietly talking to a handful of GAC members and IGOs about the same issue in what has become known as the “small group”.

Because it’s small. And a group.

Yesterday, ICANN divulged the consensus of the small group in a letter (pdf) to the leaders of the GNSO Council.

Its recommendations conflict in almost every respect with what the GNSO working group intends to recommend.

The small group wants ICANN to create IGOs-acronyms-only versions of the Trademark Clearinghouse database, Trademark Claims service and UDRP and URS dispute resolution mechanisms — basically “functionally equivalent” mirrors of almost all of the rights protection mechanisms currently only available to trademark owners.

They would be administered at least partially by the GAC and at no cost to the IGOs themselves (presumably meaning ICANN would pick up the tab).

It seems like a disproportionate amount of faff considering the problem ICANN is trying to solve is the vanishingly small possibility that somebody attempts to cybersquat the United Nations Entity For Gender Equality And The Empowerment Of Women (UNWOMEN) or the Postal Union Of The Americas Spain And Portugal (PUASP).

A lot of it is also in direct opposition to what the GNSO WG plans to recommend, according to chair Phil Corwin and the current draft of the WG’s recommendations.

The WG currently plans to recommend that IGOs should be allowed to use the existing URS and UDRP mechanisms to take down or take over domains that use their acronyms in bad faith. It does not currently seem to recommend anything related to Trademark Claims.

A foundational disagreement relates to the status of IGOs under the law. While IGOs in the small group seem to think they are in a special category of entity that is not subject to regular trademark law, the WG hired expert legal counsel that determined the contrary.

Corwin, in his initial response to the small group letter, said that the implications of the debate go beyond how IGO acronyms should be protected.

IGOs carried out a “near boycott” of the GNSO PDP discussions, he wrote, preferring instead to talk to the small group “behind closed doors”. He wrote:

we continually urged members of the GAC, and IGOs, to participate in our WG. That participation was so sporadic that it amounted to a near-boycott, and when IGO representatives did provide any input they stressed that they were speaking solely as individuals and were not providing the official views of the organizations that employed them.

Of course, why should they participate in the GNSO policy processes when they are permitted to pursue their goals in extended closed door discussions with the Board, and when the Board seeks no input from the GNSO in the course of those talks?

He directly linked the timing of the small group report to the expiration last Friday of ICANN’s IANA functions contract with the US Department of Commerce, and suggested that the IGO acronym issue could be a litmus test for how ICANN and governments function together under the new oversight regime.

I note that transmission of the letter has been delayed until after the completion of the IANA transition, and that the post-transition role of governments within ICANN was a central controversy surrounding the transition.

What is at stake in this matter goes far beyond the relatively rare instance in which a domain registrant infringes upon the name or acronym of an IGO and the IGO seeks relief through a CRP [Curative Rights Protection mechanism]. The larger issue is whether, in a post-transition ICANN, the GAC and the UN agencies that comprise a large portion of IGOs, will participate meaningfully in GNSO policy activities, or will seek their policy aims by bypassing the ICANN community and engaging in direct, closed door discussions with the Board.

The financial effects of this seemingly interminable debate on the gTLD industry are probably pretty minor.

Currently, all new gTLDs have temporarily blocked, from launch, all of the IGO acronyms in question. That’s roughly 200 domains per gTLD that could otherwise be sold.

Many of the strings are three, four and five-letter acronyms that could fetch “premium” prices in the open market (though, in my judgement, not much more than a couple hundreds bucks in most cases).

A small number of the acronyms, such as WHO and IDEA, are potentially more valuable.

Off the top of my head and the back of an envelope, I’d put the cost to the industry as a whole of the IGO acronym blocks probably somewhere in the very low millions.

The harms being prevented are also very minor, in my view. With a small handful of exceptions, the IGOs in question are not attractive cybersquatting targets.

But, as is so often the case in ICANN matters, the arguments in this case boil down to matters of law, principle and process much more than practical impact.

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Comments (18)

  1. There has also been discussion re: the IGOs’ proposal on the ICANN PDP mailing list itself. My own thoughts are in my 3 posts (so far) at:

    http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-October/000593.html
    http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-October/000594.html
    http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-October/000595.html

    It’s telling that these IGOs waited until after the IANA transition, to pull this move. Their proposal should be rejected, and the work of the PDP (2 years+ of work) should move forward to its natural completion.

  2. Eric Lyon says:

    I’m not too worried about it. there have been political talks regarding the next president in the U.S. putting a stop to transferring control of the domain name space. It’s my understanding that nothing has been finalized yet and that we still have time to reverse the damages.

    • Rubens Kuhl says:

      Control was already transferred, and it’s final. Even the candidate that opposed the process can’t revert it now.

      • There is no process for exceptions on the IGO list, for terms or meanings that are clearly non-confusing.

        With ZERO effort I can point to one glaring example, from the great city where we hold NamesCon each year : the domain name LAS.VEGAS is blocked.

        There is not any conceivable way I could see that any competent (or even incompetent) person somehow confused with an IGO, and yet LAS.VEGAS sits in a permanent limbo due to this awful policy, which leaves the domain hobbled indefinitely without any means to get exemption.

        Which would be minimally reasonable, and likely caught by a multistakeholder policy development process providing possibility for input from groups beyond those of the requestor.

        The inelegance of the IGO protection has more of a “kill everyone, let God sort them out” approach, and the manner in which it circumnavigated most all multistakeholder processes makes it more proclaimation than policy.

        I am certain there are other examples that others could provide, but the way GNSO inputs and due process was bypassed is troubling.

  3. So the string LAS in the top level domain VEGAS would be in limbo. Did I say that in clearly?

  4. I suppose that if it confused YOU it could confuse a small group.

    Before anything changes to widen the IGO protection, the pendulum needs to swing back into the middle on this to allow exceptions for clear cases like this real world example of where it is impractically overreaching.

    • Kevin Murphy says:

      My understanding is that both sets of proposals under discussion would release all IGO acronyms from block by default, including LAS.VEGAS.

      • Mary Wong says:

        That’s correct, assuming the final result of the ongoing discussions goes in that (or similar) direction. In the meantime, until there is a final resolution, the interim protections that were approved in 2013 will apply – that is, the current requirement to block IGO acronyms (for the IGOs that are on the GAC’s list as provided to ICANN) at the second level in all new gTLDs. This measure was taken to provide temporary protections to these organizations prior to the delegation of new gTLDs while work on outstanding issues continued.

        • Mary, thank you for the clarification. rather than attempt to solve the matter on a blog comment, what is the transparent and open bottoms up consensus manner in which the community can remedy issues like I raise before the temporary protections would be finalized?

  5. Greg Shatan says:

    “LAS” is the League of Arab States, according to the GAC Block List found at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013-07-17-en#1.a (find and click on Annex 1).

    This IGO is more widely known by their informal name: the Arab League. Their website is http://www.lasportal.org. http://www.lasportal.org/Pages/Welcome.aspx

    FYI, las.org is owned and used by the Legal Aid Society of Middle Tennessee and the Cumberlands, a US NGO, which offers free legal services to low-income people in the region.

    • @greg I think it is fair to say no sane or intelligent / competent person might conftype LAS.VEGAS expecting to reach the League of Arab States or be somehow possibly be confused by the URL.

      The fundamental issue with the IGO restriction list is the inappropriate inelegance and no process for exceptions.

      Which I dare say is something that is patently reasonable for the public interest a flaw which should be remedied before expansion of IGO right exacerbates the matter.

      Also, las.org is in .org, a 30 year old TLD, so it would not be subject to the newer policy, so while I could extract the support to my argument of prior evidence of years of safe coexistence without confusion, I would also identify as being partially out of scope, unless the reach of IGO protection starts to expand into being retroactively applicable in a manner that would invalidate existing registration in legacy gTLDs. it is scary to contemplate how disruptive it would be.

  6. In the interest of transparency and accountability, where might one find the explicit list of people’s names that comprise the ‘Small Group’?

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