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DotKids signs very weird new gTLD contract

Kevin Murphy, August 24, 2021, 17:25:57 (UTC), Domain Registries

New gTLD registry hopeful DotKids Foundation has become the latest to sign its ICANN Registry Agreement, and it’s a bit odd.

The signing means that DotKids only needs to have its registry back-end, managed by Donuts/Afilias, pass the formality of its pre-delegation testing before .kids finds its way into the DNS root.

It’s going to be a regulated TLD, with strict rules about what kind of content can be posted there. It’s designed for under-18s, so there’ll be no permitted violence, sex, drugs, gambling etc.

DotKids plans to enforce this with a complaint-response mechanism. There won’t be any pre-vetting of registrants or content.

There are a few notable things about .kids worth bringing up.

First, the contract was signed August 13 by DotKids director Edmon Chung, best known as CEO of DotAsia. A few days later, he was selected for the ICANN board of directors by the Nominating Committee.

Second, it’s the first and only new gTLD to have been acquired on the cheap — DotKids got over $130,000 of support from ICANN as the only outfit to successfully apply under the Applicant Support program.

Third, DotKids’ Public Interest Commitments are mental.

PICs are the voluntary, but binding, rules that new gTLD registries opt to abide by, but the DotKids PICs read more like the opening salvo in a future lawsuit than clauses in a registry contract.

Three PICs in particular caught my eye, such as this one that seems to suggest DotKids wants to restrict its channel to only a subset of accredited registrars, and then doesn’t:

Notwithstanding Section 1 above, the Registry Operator makes a commitment to support ICANN’s overarching goals of the new gTLD program to enhance competition and consumer choice, and enabling the benefits of innovation via the introduction of new gTLDs. The Registry Operator further acknowledges that at the time of this writing, it is uncertain whether or not the limiting of distribution of new gTLDs to only a subset of ICANN Accredited Registrars would undermine ICANN’s own public interest commitments to enhance competition and consumer choice. In the absence of the confirmation from ICANN and the ICANN community that such undertaking would not run counter to ICANN’s overarching goals of the new gTLD program, or in the case that ICANN and/or the ICANN community confirms that indeed such arrangement (as described in 1. above) runs counter to ICANN’s public interest commitments and overarching goals, the Registry Operator shall refrain from limiting to such subset as described in 1. above.

I’ve read this half a dozen times and I’m still not sure I know what DotKids is getting at. Does it want to have a restricted registrar base, or not?

This paragraph is immediately followed by the equally baffling commitment to establish the PICs Dispute Resolution Procedure as a formal Consensus Policy:

Notwithstanding Section 2 and 4 above, the Registry Operator makes a commitment to support, participate in and uphold, as a stakeholder, the multi-stakeholder, bottom-up policy development process at ICANN, including but not limited to the development of Consensus Policies. For the avoidance of doubt, the Registry Operator anticipates that the PICDRP be developed as a Consensus Policy, or through comparably open, transparent and accountable processes, and commits to participating in the development of the PICDRP as a Consensus Policy in accordance to Specification 1 of this Agreement for Consensus Policies and Temporary Policies. Furthermore, that any remedies ICANN imposes shall adhere to the remedies specified in the PICDRP as a Consensus Policy.

The problem with this is that PICDRP is not a Consensus Policy, it’s just something ICANN came up with in 2013 to address Governmental Advisory Committee concerns about “sensitive” TLDs.

It was subject to public comments, and new gTLD registries are contractually obliged to abide by it, but it didn’t go through the years-long process needed to create a Consensus Policy.

So what the heck is this PIC doing in a contract signed in 2021?

The next paragraph is even more of a head-scratcher, invoking a long-dead ICANN agreement and seemingly mounting a preemptive legal defense against future complaints.

Notwithstanding Section 2 above, the Registry Operator makes a commitment to support ICANN in its fulfillment of the Affirmation of Commitments, including to promote competition, consumer trust, and consumer choice in the DNS marketplace. The Registry Operator further makes an observation that the premise of this Specification 11 is predicated on addressing the GAC advice that “statements of commitment and objectives to be transformed into binding contractual commitments, subject to compliance oversight by ICANN”, which is focused on statements of commitment and objectives and not business plans. As such, and as reasonably understood that business plans for any prudent operation which preserves security, stability and resiliency of the DNS must evolve over time, the Registry Operator will operate the registry for the TLD in compliance with all commitments and statements of intent while specific business plans evolve. For the avoidance of doubt, where such business plan evolution involves changes that are consistent with the said commitments and objectives of Registry Operator’s application to ICANN for the TLD, such changes shall not be a breach by the Registry Operator in its obligations pursuant to 2. above.

If you’re struggling to recall what the Affirmation of Commitments is, that’s because it was scrapped four years ago following ICANN’s transition out from under US government oversight. It literally has no force or meaning any more.

So, again, why is it showing up in a 2021 Registry Agreement?

The answer seems to be that the PICs were written in March 2013, when references to the AoC and the PICDRP as a potential Consensus Policy made a whole lot more sense.

While a lot of this looks like the kind of labyrinthine legalese that could only have been written by an ICANN lawyer, nope — these PICs are all DotKids’ handiwork.

ICANN seems to have been quite happy to dump a bunch of irrelevant nonsense into DotKids’s legally binding contract, and sign off on it.

But given that ICANN doesn’t seem convinced it even has the power to enforce PICs in contracts signed after 2016, does it even matter?

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