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EFF recommends against new gTLDs

Kevin Murphy, July 28, 2017, Domain Policy

The Electronic Frontier Foundation has recommended that domain registrants concerned about intellectual property “bullies” steer clear of new gTLDs.

The view is expressed in a new EFF report today that is particularly critical of policies in place at new gTLD portfolio registries Donuts and Radix.

The report (pdf) also expresses strong support for .onion, the pseudo-TLD available only to users of the Tor browser and routing network, which the EFF is a long-term supporter of.

The report makes TLD recommendations for “security against trademark bullies”, “security against identity theft and marketing”, “security against overseas speech regulators” and “security against copyright bullies”.

It notes that no one TLD is “best” on all counts, so presents a table explaining which TLD registries — a broad mix of the most popular gTLD and ccTLD registries — have which relevant policies.

For those afraid of trademark “bullies”, the EFF recommends against 2012-round new gTLDs on the basis that they all have the Uniform Rapid Suspension service. It singles out Donuts for special concern due to its Domain Protected Marks List, which adds an extra layer of protection for trademark owners.

On copyright, the report singles out Donuts and Radix for their respective “trusted notifier” schemes, which give the movie and music industries a hotline to report large-scale piracy web sites.

These are both well-known EFF positions that the organization has expressed in previous publications.

On the other two issues, the report recommends examining ccTLDs for those which don’t have to kowtow to local government speech regulations or publicly accessible Whois policies.

In each of the four areas of concern, the report suggests taking a look at .onion, while acknowledging that the pseudo-gTLD would be a poor choice if you actually want people to be able to easily access your web site.

While the opinions expressed in the report may not be surprising, the research that has gone into comparing the policies of 40-odd TLD registries covering hundreds of TLDs appears on the face of it to be solid and possibly the report’s biggest draw.

You can read it here (pdf).

Crocker: no date on next new gTLD round

Kevin Murphy, July 27, 2017, Domain Policy

ICANN will NOT set a date for the next round of new gTLD applications, despite recent pleas from registry operators.

That’s according to a letter (pdf) from ICANN chair Steve Crocker to the Registries Stakeholder Group published today.

The RySG had asked (pdf) last month for ICANN’s leadership to set a fourth-quarter 2018 deadline for the next application window.

It said that that drawing a line in the sand would allow potential applicants to plan and would prevent current policy-development processes from being abused to delay the next round.

But Crocker says in his letter that it is up to the ICANN community, not its board of directors, to determine if and when a new round should commence. He wrote:

Once the community completes its work, the Board will consider the community’s recommendations to introduce additional new gTLDs. Without the final findings and recommendations from the review and PDP, the Board won’t be able to determine what needs to be done prior to the opening of another application process…

The Registry Stakeholder Group’s letter suggests that by setting a date for the opening of another application process, the Board will provide the community with a target date to work toward. Although the Board setting a date would achieve this, doing so might contravene the multi-stakeholder process that allows for the community to have the necessary discussions to arrive at consensus, and to determine the timing of their own work

It seems this is an instance in which the board does not like the idea of setting policy in a top-down manner.

Crocker said the two remaining gating factors for a next round are the consumer choice and competition review of the first round, which is ongoing, and the GNSO’s New gTLD Subsequent Procedures Policy Development Process (PDP).

The PDP has now been going on for 18 months and yet discussions remain at a very early stage, with hardly any preliminary recommendations being agreed upon.

There’s not even agreement on foundational issues such as whether to carry on dividing the program into discreet application rounds or to start a first-come, first-served process.

The RySG had suggested in its letter that the next window could open after certain threshold issues had been resolved but before all policy work was complete, and that at the very least ICANN staff should get to work on a new version of the Applicant Guidebook while the PDP is still ongoing.

But Crocker again responded that the staff cannot get to work on implementation until the board has considered the community’s final recommendations.

ICANN’s most recent estimates for the opening of the next round would see applications accepted in 2020, eight years after the last round.

Attendance dips for ICANN in Johannesburg

Kevin Murphy, July 25, 2017, Domain Policy

The number of people showing up for ICANN’s latest meeting was down compared to previous meetings, just-released statistics show.

The organization reported today that there were 1,353 attendees at the ICANN 59 meeting in Johannesburg last month, down from 1,436 at the comparable Helsinki meeting a year ago.

It was also down from the 2,089 people attending the Copenhagen meeting in March, but that’s to be expected due to the mid-year meeting having a shorter schedule more tightly focused on policy work.

It also seems to be typical for meetings in Africa to get lower attendance than meetings elsewhere in the world, given the relatively low participation at last year’s Marrakech meeting.

But attendance from the local region spiked again. There were 498 Africans there, 36% of the total. By comparison, just 5% of Copenhagen attendees were African.

This tilted the gender balance towards males, with declared female participation down to 31% from 33% in Copenhagen and 32% in Helsinki.

The number of people attending their first ICANN meeting was 33% of the total. That’s much higher than the 20% reported for Copenhagen. About two thirds of the noobs were from Africa.

These numbers are among the thousands of statistics released in the ICANN 59 roundup today, which for the first time included some eye-opening facts about food and drink consumption at the venue, reproduced here.

If these numbers are correct, there was one waiter or member of service staff for every 2.7 meeting attendees, which strikes me as a weirdly balanced ratio.

Empowered Community makes first symbolic exercise of power

Kevin Murphy, July 24, 2017, Domain Policy

The new “Empowered Community” of ICANN has exercised its power for the first time.

The EC on Friday told ICANN that it has approved the ICANN board of directors’ recent resolution to create a new committee tasked with handling various oversight processes.

It’s of largely symbolic importance, the first test of whether the EC process works when the issue at hand is non-controversial.

The EC is a body made up of representatives of ICANN’s Address Supporting Organization, At-Large Advisory Committee, Country Code Names Supporting Organization, Generic Names Supporting Organization and Government Advisory Committee.

Among its powers and responsibilities is the duty to accept or reject changes to ICANN’s fundamental bylaws.

Some of those bylaws concern the composition and roles of board committees, so creating a new such committee required EC assent.

All five EC members, known as Decisional Participants, approved the resolution (pdf).

The EC also has the power to reject ICANN’s budget. The deadline for exercising this power for the 2017/18 budget is approaching soon, but I’m not expecting that to happen.

Governments slammed for overreach as Amazon wins gTLD appeal

Kevin Murphy, July 19, 2017, Domain Policy

Amazon has won its appeal against the rejection of its .amazon gTLD application, in a ruling that criticizes ICANN for giving too much deference to government advice.

The Independent Review Process panel’s 2-to-1 ruling, delivered July 11 and published this week, means that .amazon and its Chinese and Japanese translations has been un-rejected and ICANN will have to consider approving it again.

The ruling (pdf) turns on the idea that ICANN’s board of directors rejected the gTLD based on nothing more than the groundless objections of a few South American governments.

Amazon’s applications were rejected three years ago when ICANN accepted the consensus advice of its Governmental Advisory Committee.

That advice, which had no attached rationale, had come largely at the behest of Brazil and Peru, two countries through which the Amazon river flows.

At issue was the word “Amazon”, which the governments protested matched the name of an important geographic region extending into several countries.

But the string was not protected by ICANN’s new gTLD program rules because it does not match the name of an administrative region of any country.

Regardless, Brazil and Peru said that to give .amazon to Amazon would prevent it being used in future by citizens of the informal South American region.

GAC consensus was reached only after the US government, for political reasons connected to the then-recent announcement of the IANA transition, decided to withdraw its objection to the advice.

Consensus, under GAC rules means simply that no one government objects to the proposed advice. It does not indicate unanimity.

But at no point in the pubic record of discussions within the GAC or ICANN board did anyone give any substantial public policy reasons for the objection, the IRP panel has now found.

Global Domains Division chief Akram Atallah testified before the panel that consensus GAC advice sets “too high for the Board to say no.”

It seems ICANN sometimes just assumes that GAC advice by default is rooted in sound public policy, even when that is not the case.

Brazil and Peru’s objections “do not appear to be based on well-founded public policy concerns that justify the denial of the applications” the panelists wrote.

The panel wrote:

We conclude that GAC consensus advice, although no reasons or rationale need be given, nonetheless must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record…

the Board cannot simply accept GAC consensus advice as conclusive. The GAC has not been granted a veto under ICANN’s governance documents.

So, while the GAC was under no obligation to state its reasons for objecting to .amazon, the ICANN board was obliged to state its reasons for accepting this advice beyond just “the GAC made us do it”.

As somebody who spent much of 2011 arguing that the GAC new gTLD veto was a bad idea, it’s nice to see the panel agree with me.

The GAC itself also erred by refusing to consider Amazon’s arguments in favor of its application, the IRP panel’s majority found.

Peru had publicly claimed that the string “Amazon” was protected under ICANN rules, which was not true, and Amazon did not have the opportunity to correct the record.

Amazon had also pointed out that the Brazilian oil company Ipiranga was granted its application for .ipiranga, despite its name matching the name of a Brazilian river apparently so important that it is referred to in the Brazilian national anthem.

However, the IRP panel decided that because ICANN’s board had not taken any action on .ipiranga, there was no basis for it to consider whether Amazon had been unfairly subject to different treatment.

In conclusion, this is what the panel has sent to the board:

The Panel recommends that the Board of ICANN promptly re-evaluate Amazon’s applications in light of the Panel’s declarations above. In its re-evaluation of the applications, the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications. Further, if the Board determines that the applications should not proceed, the Board should explain its reasons supporting that decision. The GAC consensus advice, standing alone, cannot supplant the Board’s independent and objective decision with a reasoned analysis.

It seems Amazon’s chances of having .amazon approved have improved. If ICANN wants to reject the applications again it is going to have to come up with some good reasons, some good reasons that possibly do not exist.

The panel also ordered ICANN to reimburse Amazon for the $163,045.51 it spent on the IRP.