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What next for new TLDs? Part 4 – GAC Concerns

Kevin Murphy, December 15, 2010, Domain Policy

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this fourth post, I will look at areas of the AGB that the Governmental Advisory Committee is still concerned about.

GAC Concerns

The GAC’s laundry list of objections and concerns has grown with every official Communique it has released during an ICANN public meeting over the last few years.

While it has not yet published its official “scorecard” of demands for the home-stretch negotiations, it has released a list of 11 points (pdf) it wants to discuss with the board.

These 11 points can be grouped into a smaller number of buckets: objections and disputes procedures, trademark protection, registry-registrar separation, and the treatment of geographical names.

I wrote about the trademark issue in part one of this post.

The GAC appears to have adopted many of the arguments of the IP lobby – it thinks the AGB does not currently do enough to ensure the costs to business of new TLDs will be minimized – so we might expect that to be a major topic of discussion at the GAC-Board retreat in February.

I’ll be interested to hear what it has to say about registry-registrar separation.

The GAC has been pushing for some looser cross-ownership restrictions, in order to foster competition, since 2007, and most recently in September.

It has previously been in favor of restrictions on “insider” companies with market power, but for a more relaxed environment for new entrants (such as “community” TLDs that may largely operate under agreements with their local governments).

This position looks quite compatible with ICANN’s new vertical integration policy, to me, so I’m not sure where the GAC’s concerns currently lie.

The issue of disputes and objections may be the trickiest one.

The GAC basically wants a way for its members to block “controversial” TLD applications on public policy grounds, without having to pay fees.

The “Rec6” policy, previously known as “morality and public order objections” is one of the issues the ICANN board has specifically acknowledged is Not Closed.

This is from its Cartagena resolution:

Discussions will continue on (1) the roles of the Board, GAC, and ALAC in the objection process, (2) the incitement to discrimination criterion, and (3) fees for GAC and ALAC-instigated objections. ICANN will take into account public comment including the advice of the GAC, and looks forward to receiving further input from the working group in an attempt to close this issue.

GAC members on the Rec6 working group repeatedly highlighted objection fees as a deal-breaker – governments don’t want to have to pay to object to TLD applications.

This appears to been cast as some kind of sovereignty-based matter of principle, although I suppose it could just as easily be an “in this economic climate” budgeting concern.

ICANN’s position is that the GAC as a whole can object for free, but that individual governments have to pay. Fees for some objection procedures will run into tens of thousands of dollars.

The GAC also has beef with the AGB’s treatment of geographic strings.

This is an area where ICANN says the AGB already “substantially reflects the views of the ICANN community” but intends to take GAC comments into account.

ICANN has already made substantial concessions on the geographic names issue, but there may still be a few loopholes through which territory names could slip through the net and be approved without the endorsement of their local governments.

Finally, the GAC wants to include amendments to the Registrar Accreditation Agreement, previously recommended by law enforcement agencies, in the AGB discussion.

The appears to have come completely out of the blue, without any direct relevance to the new TLD program.

It’s a long list covering a lot of issues, and it could get longer when the GAC publishes its official “scorecard”. We’ll have to wait and see.

ICANN chief gets bonus

Kevin Murphy, December 14, 2010, Domain Policy

ICANN chief executive Rod Beckstrom is to be paid a bonus potentially as high as $195,000 this year.

Did you know that there were two ICANN board meetings held in Cartagena last week?

I didn’t, but I just spotted that resolutions from a December 8 meeting have been posted on the ICANN web site.

There are only two resolutions. They grant bonuses to Beckstrom and to outgoing ombudsman Frank Fowlie.

The board approved “a proportion” of both men’s “at-risk component”, which basically means their performance-related bonuses.

The resolutions do not specify how big a proportion was approved for either, but it is known that the maximum Beckstrom could have been awarded is $195,000.

His base salary is $750,000.

Beckstrom: ICANN accountable to world, not just US

Kevin Murphy, December 6, 2010, Domain Policy

ICANN chief Rod Beckstrom opened the organization’s 39th public meeting in Cartagena, Colombia, with a speech that touched on many of the organization’s recent controversies and appeared to take a strong stance against US government interference.

Everything from its political tangles with the International Telecommunications Union, to the recent calls for high-security top-level domains for financial services, to Beckstrom’s own controversial pet project, the proposed DNS-CERT, got a mention.

But probably Beckstrom’s strongest statement was the one which indirectly addressed recent moves by the US government to slam the brakes on ICANN’s new top-level domains program:

We are accountable to the world, not to any one country, and everything we do must reflect that.

Beckstrom acknowledged the controversies in the new TLDs policy, given last week’s strongly worded letter from the US Department of Commerce, which was highly critical of the program.

Commerce assistant secretary Lawrence Strickling has called on ICANN to delay the program until it has justified its decision under the Affirmation of Commitments.

But this morning, Beckstrom echoed sentiments expressed on the ICANN blog last week (my emphasis):

As is often the case with policy decisions in that multi-stakeholder model, not everyone is pleased, and this diversity of opinion contributes to the policy process. For example, last week we received a critical letter from the US Department of Commerce. As with all contributions, ICANN will give these comments careful consideration as part of the implementation of the GNSO policy. We welcome the transparent way that Commerce provided their comments through the public comment process.

How ICANN chooses to deal with the demands of its former master, the US government, is one of the Cartagena meeting’s Big Questions.

Another such question is how ICANN plans to deal with ongoing threats to its legitimacy from international bodies such as the International Telecommunications Union.

Addressing ITU secretary general Hamadoun Toure directly, Beckstrom said:

We have always sought to build our relationships based on mutual respect and integrity, taking into account the unique and distinct mandates entrusted to our organizations. The strengthening of communication between us is a personal priority for me.

Security

Security is one of ICANN’s watchwords, and Beckstrom is a security guy by trade. His speeches typically address the topic to a greater or lesser extent and Cartagena was no exception.

Security policies inherently create tensions. Take, for example, controversies about the strength and enforceability of of Whois policies, or Beckstrom’s own call for a DNS-CERT to oversee DNS risk.

This morning, he said:

The staff under my leadership is willing to go as far on security as the community is willing. And whatever security effort this community decides, we will do our utmost to implement and support, given sufficient resources. Because when it comes to security, how can we ever say we’ve done enough?

And now you need to tell us: where do you want us to go?

Of course, I am sure we can agree that when it comes to security, the question is not what do we want to do? Or what is popular or easy? It’s what do we owe the world? Because all of us care about the global public interest.

He took, in my view, a subtle swing at the Governmental Advisory Committee for putting security at the heart of its ongoing policy demands, while largely failing to cooperate with ICANN’s requests for information on security issues in their own jurisdictions. Beckstrom said:

We have asked GAC members to provide information about security activities in their countries. We appreciate the information some have shared but there have been few responses. As governments urge us to remain committed to security efforts, we in turn request that they help us by responding and working with the ICANN community on this vital mission.

I know there are some European ccTLD registries a bit miffed that ICANN has in recent months gone over their heads, direct to their governments, for this information, highlighting what a tricky political situation it is.

The speech also touched on internationalized domain names, with a shout-out to the recent launch of Russia’s Cyrillic ccTLD, and general global inclusion activities. I expect the text and audio to be published on the ICANN web site to be published shortly.

Bulgarians step up ICANN protest

Kevin Murphy, December 2, 2010, Domain Policy

A domain name registrar association from Bulgaria is laying the groundwork to appeal ICANN’s rejection of the country’s proposed Cyrillic top-level domain.

Uninet has filed a Documentary Information Disclosure Policy request, asking ICANN to publish its reasons for turning down the .бг (.bg) application and the criteria it used.

The domain, which had the backing of the Bulgarian government and people, was rejected in May on the grounds that it is “confusingly similar to an existing TLD”, believed to be Brazil’s .br.

In order to prepare for a future appeal, the Uninet organization wants ICANN to release:

1. The DNS Stability panel working criteria (or parts of it) that were applied to evaluate and subsequently reject the Bulgarian application.
2. The decision of the DNS Stability panel, used to reject the Bulgarian application.

While the ICANN panel’s decision isn’t exactly a state secret (even I have a copy), there seems to be a feeling in Bulgaria that ICANN may not have released all of its reasoning.

The document does not, for example, specify which TLD .бг is confusingly similar to.

It does, however, reveal just how strict ICANN is when it comes to evaluating IDN domains, including a default assumption that any two-letter string is confusing.

We note that two-character strings consisting of Unicode code points in the Latin, Greek, and Cyrillic script blocks are intrinsically confusable with currently defined or potential future country code TLD

We therefore apply a very conservative standard in our assessment of applied-for strings that consist of two Greek, Cyrillic, or Latin characters, including a default presumption of confusability to which exceptions may be made in specific cases.

Uninet said that the Bulgarian government plans to challenge the .бг decision if and when ICANN revises its existing IDN ccTLD Fast Track program to create an appeals process. It wrote:

Many people have criticized the lack of transparency and appeal options in this process, but after the ongoing public comment period we hope that it would be amended by the ICANN Board and the Bulgarian government (as a requester) will have the chance to apply for a re-evaluation of the proposed string.

In the meantime, the Bulgarian government’s IT ministry today started encouraging its citizens to write to ICANN to demand that its application is re-evaluated.

Several already have.

ICANN had no role in seizing torrent domains

Kevin Murphy, November 29, 2010, Domain Policy

Okay, this is getting a bit silly now.

As you may have read, the US government “seized” a bunch of domain names that were hosting sites allegedly involved in piracy and counterfeit goods over the Thanksgiving weekend.

Over 80 domains, all of them in the .com namespace, had their DNS settings reconfigured to point them to a scary-looking notice from the Department of Homeland Security’s ICE division.

Somehow, in several reports over the last few days, this has been pinned on ICANN, and now some pro-piracy advocates are talking about setting up alternate DNS roots as a result.

Claims that ICANN colluded with the DHS on the seizures seem to have first appeared in TorrentFreak, which broke the news on Friday.

The site quoted the owner of torrent-finder.com:

“I firstly had DNS downtime. While I was contacting GoDaddy I noticed the DNS had changed. Godaddy had no idea what was going on and until now they do not understand the situation and they say it was totally from ICANN.”

For anyone involved in the domain name industry and the ICANN community, this allegation screams bogosity, but just to be on the safe side I checked with ICANN.

A spokesperson told me he’s checked with ICANN’s legal, security and compliance departments and they all had this to say:

ICANN had nothing to do with the ICE investigation… nobody knew anything about this and did not take part in the investigation.

All of the seized domains were .coms, and obviously ICANN has no technical authority or control over second-level .com domains. It’s not in the position to do what the reports allege.

If anybody were to ask ICANN to yank a domain, all it could do would be to politely forward the request to the registrar (in the case of torrent-finder.com, apparently Go Daddy) or the registry operator, which in the case of .com is of course VeriSign.

It would make more sense, save more time, and be less likely to create an international political incident, for the DHS to simply go directly to Go Daddy or VeriSign.

Both are US companies, and the DHS did have legal warrants, after all.

That’s almost certainly what happened here. I have requests for comment in with both companies and will provide updates when I have more clarity.

In the meantime, I suggest that any would-be pirates might be better served by switching their web sites to non-US domains, rather than trying to build an alternate root system from the ground up.

UPDATE: Ben Butler, Go Daddy’s director of network abuse, has just provided me with the following statement, via a spokesperson:

It appears the domain names were locked directly by VeriSign. Go Daddy has not received any law enforcement inquiries or court orders concerning the suspension of the domains in question.

Go Daddy has not been contacted by ICE or DHS on the domain names in question.

The statement goes on to say that Go Daddy believes that it should be the registrar’s responsibility to handle such takedown notices.

With regard to the registry taking action against the domain names in question, Go Daddy believes the proper process lies with the registrar and not the registry. This gives the registrar the ability to communicate with their customer about what has happened and why. When the registry acts, Go Daddy is unable to provide any information to our customers regarding the seizure of their domain names.

Go Daddy routinely cooperates with government and law enforcement officials to enforce and comply with the law.

I’ll post any statement I receive from VeriSign when I have it.

UPDATE: VeriSign sent this statement:

VeriSign received sealed court orders directing certain actions to be taken with respect to specific domain names, and took appropriate actions. Because the orders are sealed, further questions should be directed to the U.S. Department of Homeland Security.