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Republicans introduce pointless ICANN bill

Kevin Murphy, March 28, 2014, Domain Policy

Three Republican Congressmen have introduced a bill that would prevent the US government removing itself from oversight of the DNS root zone.

For a year.

The inappropriately titled Domain Openness Through Continued Oversight Matters (DOTCOM) Act is designed to:

prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system until the Comptroller General of United States submits to Congress a report on the role of the NTIA with respect to such system.

Basically, the NTIA would be barred from walking away from root zone oversight until an analysis of the advantages and disadvantages of the transition was published, which would have to happen within a year.

The report would also have to include a definition of “multi-stakeholder”.

The three Republicans who introduced the bill — Representatives Todd Rokita, John Shimkus, and Marsha Blackburn — either have no idea what they’re talking about, or they’re being intellectually dishonest.

Blackburn said in a press release:

We can’t let the Internet turn into another Russian land grab. America shouldn’t surrender its leadership on the world stage to a “multistakeholder model” that’s controlled by foreign governments. It’s imperative that this administration reports to Congress before they can take any steps that would turn over control of the Internet.

Shimkus said:

In the month of March alone we’ve seen Russia block opposition websites, Turkey ban Twitter, China place new restrictions on online video, and a top Malaysian politician pledge to censor the Internet if he’s given the chance. This isn’t a theoretical debate. There are real authoritarian governments in the world today who have no tolerance for the free flow of information and ideas. What possible benefit could come from giving the Vladimir Putins of the world a new venue to push their anti-freedom agendas?

This is hysterical nonsense.

Not only has ICANN no intention of allowing the IANA function to be controlled by foreign governments, the NTIA has explicitly stated from the start that no governmental solution would be acceptable.

It’s also ironic that the only two governments to ever consider censoring the root zone were the European Commission and the United States, under the Republican Bush administration.

The current expectation, assuming community talks proceed as swiftly as hoped, is for stewardship of the IANA function to leave the NTIA’s hands when the current contract expires in October 2015.

Even if the DOTCOM (really?) Act were to be passed into US law this year, it shouldn’t have any serious impact on the timing of the root transition.

With that in mind, the three-page bill (pdf) looks quite a lot like an extended press release, rather than a serious attempt to keep the root in US hands.

EU buys more time for .wine talks after surprise GAC objection

Kevin Murphy, March 27, 2014, Domain Policy

The ICANN Governmental Advisory Committee deposited a shock fly into the wine-related gTLD ointment tonight, asking ICANN to delay approval of .wine and .vin on a technicality.

ICANN’s board of directors had at the weekend basically approved the two new gTLDs, over the objections of the European Union, but the GAC today said the board’s decision hadn’t followed the rules.

In its communique (pdf) issued at the end of the just-concluded ICANN 49 meeting in Singapore, the GAC said: “In the final deliberation of the Board there appears to be at least one process violation and procedural error”.

The procedure in question is the part of the ICANN bylaws that says the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”

The GAC therefore advises:

That the Board reconsider the matter before delegating these strings.

The GAC needs to consider the above elements more fully. In the meantime concerned GAC members believe the applicants and interested parties should be encouraged to continue their negotiations with a view to reach an agreement on the matter.

The only “external advice” referenced in the ICANN decision on .wine was the legal opinion (pdf) of French law professor Jerome Passa.

Reading between the lines (I have not yet listened to all of the GAC’s public deliberations this week, so I’m speculating) it seems Passa’s opinion was not provided to the GAC before the ICANN board made its call.

I’m further assuming that the EU or one of its member states spotted the bylaws provision about external advice notice and cunningly used it to revive the .wine debate.

The GAC has declined to object to .wine and .vin because countries such as the US and Australia disagree with the EU’s position on the international law governing geographic indicators such as “Champagne”.

But no matter what other GAC members think about the European demands GI protections, it would have been very hard for them to argue in favor of an ICANN board decision that violated process.

Even if there’s very little chance of rustling up a consensus objection against these two gTLDs, the EU seems to have successfully added delay to the approval process, giving it leverage over the applicants.

I’m impressed.

While this may not change the eventual outcome, it at least buys the EU more time to negotiate with the .wine and .vin applicants about protection for geographic indicators.

This apparent oversight, coupled with the controversy this week about rights protection mechanisms for intergovernmental organizations, makes me wonder whether ICANN’s legal department might need a refresher course on the ICANN bylaws.

Or maybe, more likely, the bylaws are just such a bloody mess that even the smartest guys in the room can’t keep track of them any more.

Under global spotlight, ICANN forced to choose between GAC and the GNSO

Kevin Murphy, March 27, 2014, Domain Policy

ICANN has angered the Generic Names Supporting Organization and risks angering the Governmental Advisory Committee as it prevaricates over a controversial rights protection mechanism.

It looks like the ICANN board of directors is going to have decide whether to reject either a hard-won unanimous consensus GNSO policy recommendation or a piece of conflicting GAC advice.

ICANN is “stuck in a bind”, according to chairman Steve Crocker, and it’s a bind that comes at a time when the bottom-up multi-stakeholder process is under the global microscope.

The issue putting pressure on the board this week at the ICANN 49 public meeting here in Singapore is the protection of the names and acronyms of intergovernmental organizations.

IGOs pressured the GAC a few years ago into demanding protection in new gTLDs. They want every IGO name and acronym — hundreds of strings — blocked from registration by default.

For example, the Economic Cooperation Organization would have “economiccooperationorganization” and “eco” blocked at the second level in all new gTLDs, in much the same way as country names are reserved.

Other IGO acronyms include potentially useful dictionary-word strings like “who” and “idea”. As I’ve said before, protecting the useful acronyms of obscure IGOs that never get cybersquatted anyway is just silly.

But when ICANN approved the new gTLD program in 2011, for expediency it placed a temporary block on some of these strings and asked the GNSO to run a formal Policy Development Process to figure out a permanent fix.

In November 2012 it added hundreds more IGO names and acronyms to the list, while the GNSO continued its work.

The GNSO concluded its PDP last year with a set of strong consensus recommendations. The GNSO Council then approved them in a unanimous vote at the Buenos Aires meeting last November.

Those recommendations would remove the IGO acronyms from the temporary reserved names list, but would enable IGOs to enter those strings into the Trademark Clearinghouse instead.

Once in the TMCH, the acronyms would be eligible for the standard 90-day Trademark Claims mechanism, which alerts brand owners when somebody registers a name matching their mark.

The IGOs would not, however, be eligible for sunrise periods, so they wouldn’t have the special right to register their names before new gTLDs go into general availability.

The PDP did not make a recommendation that would allow IGOs to use the Uniform Rapid Suspension service or UDRP.

Unfortunately for ICANN, the GNSO recommendations conflict with the GAC’s current advice.

The GAC wants (pdf) the IGOs to be eligible for Trademark Claims on a “permanent” basis, as opposed to the 90-day minimum that trademark owners get. It also wants IGOs — which don’t generally enjoy trademark protection — to be made eligible for the URS, UDRP or some similar dispute resolution process.

Since Buenos Aires, the ICANN board’s New gTLD Program Committee has been talking to the GAC and IGOs about a compromise. That compromise has not yet been formally approved, but some initial thinking has been circulated by Crocker to the GAC and GNSO Council.

ICANN proposes to give IGOs the permanent Trademark Claims service that the GAC has asked for, as well as access to the URS. Both policies would have to be modified to allow this.

It would also create an entirely new arbitration process to act as a substitute for UDRP for IGOs, which are apparently legally unable to submit to the jurisdiction of national courts.

The compromise, while certainly overkill for a bunch of organizations that could hardly be seen as ripe cybersquatting targets, may seem like a pragmatic way for the board to reconcile the GNSO recommendations with the GAC advice without pissing anyone off too much.

But members of the GNSO are angry that the board appears to be on the verge of fabricating new policy out of whole cloth, ignoring its hard-won PDP consensus recommendations.

That’s top-down policy-making, something which is frowned upon within ICANN circles.

Under the ICANN bylaws, the board is allowed to reject a GNSO consensus recommendation, if it is found to be “not in the best interests of the ICANN community or ICANN”. A two-thirds majority is needed.

“That’s not what happened here,” Neustar’s vice president of registry services Jeff Neuman told the board during a meeting here in Singapore on Tuesday.

“Instead, the board on its own developed policy,” he said. “It did not accept, it did not reject, it developed policy. But there is no room in the ICANN bylaws for the board to do this with respect to a PDP.”

He said that the GNSO working group had already considered elements of ICANN’s compromise proposal and specifically rejected them during the PDP. Apparently speaking for the Registries Stakeholder Group, Neuman said the compromise should be taken out of consideration.

Bret Fausett of Uniregistry added: “The process here is as important to us as the substance. We think procedure wasn’t followed here and we detect a lack of understanding at the board level that process wasn’t followed.”

The GNSO Council seems to agree that the ICANN board can either accept or reject its recommendations, but what it can’t do is just write its own policies for the sake of a quiet life with the GAC.

To fully accept the GNSO’s recommendations would, however, necessitate rejecting the GAC’s advice. That’s also possible under the bylaws, but it’s a lengthy process.

Director Chris Disspain told the GNSO Council on Sunday that the board estimates it would take at least six months to reject the GAC’s advice, during which time the temporary reservations of IGO acronyms would remain active.

He further denied that the board is trying to develop policy from the top.

“It is not top-down, it’s not intended to be top-down, I can’t really emphasis that enough,” he told the Council.

He described the bylaws ability to reject the GNSO recommendations as a “sledgehammer”.

“It would be nice to be able to not have to use the sledgehammer,” he said. “But if we did have to use the sledgehammer we should only be using it because we’ve all agreed that’s what we have to do.”

Chair Steve Crocker summed up the board’s predicament during the Sunday meeting.

“We always do not want to be in the position of trying to craft our own policy decision,” he said. “So we’re stuck in this bind where we’re getting contrary advice from sources that feel very strongly that they’ve gone through their processes and have spoken and so that’s the end of it from that perspective.”

The bind is especially tricky because it’s coming at a time when ICANN is suddenly becoming the focus of a renewed global interest in internet governance issues.

The US government has said that it’s willing to walk away from its direct oversight of ICANN, but only if what replaces it is a “multi-stakeholder” rather than “intergovernmental” mechanism

If ICANN were to reject the proceeds of a two-year, multi-stakeholder, bottom-up, consensus policy, what message would that send to the world about multistakeholderism?

On the other hand, if ICANN rejects the advice of the GAC, what message would it send about governments’ ability to effectively participate as a stakeholder in the process?

Clearly, something is broken when the procedures outlined in ICANN’s bylaws make compromise impossible.

Until that is fixed — perhaps by getting the GAC involved in GNSO policy-making, something that has been talked about to no end for years — ICANN will have to continue to make these kinds of hard choices.

Fielding a softball question during a meeting with the GNSO Council on Saturday, ICANN CEO Fadi Chehade said that “to value the process as much as I value the result” is the best piece of advice he’s received.

“Policies get made here,” Chehade told the Council, “they should not be made at the board level, especially when a consensus policy was made by the GNSO. Akram [Atallah, Generic Domains Division president] today was arguing very hard at the board meeting that even if we don’t think it’s the right thing, but it is the consensus policy of the GNSO, we should stick with it.”

Will the board stick with it? Director Bruce Tonkin told the registries on Monday that the board would try to address their concerns by today, so we may not have to wait long for an answer.

.wine is a go

Kevin Murphy, March 26, 2014, Domain Policy

ICANN has approved the new gTLDs .wine and .vin, despite objections from the European Union.

In a resolution this weekend, published today, its board’s New gTLD Program Committee said “that the applications for .WINE and .VIN should proceed through the normal evaluation process.”

The resolution acknowledges the Governmental Advisory Committee’s lack of consensus against the two wine-related gTLDs, but not the EU’s view that geographic indicators such as “Champagne” should be protected.

European nations thought both gTLDs should be put on hold until the applicants agreed to these special protections, but the US, Australia and other nations disagreed.

ICANN sought the legal opinion (pdf) of a French law professor in its decision-making.

The EU is going to be pretty angry about this, but in the absence of a consensus objection from the GAC against the strings, it appears that the NGPC has made the right call in this case.

.hotels applicant files IRP on ICANN

Kevin Murphy, March 25, 2014, Domain Policy

New gTLD applicant Booking.com has filed an Independent Review Process complaint against ICANN.

ICANN and Booking.com attorney Flip Petillion of Crowell & Moring confirmed the filing with DI this evening. Earlier Belgian newspaper reports of a full-on lawsuit appear to be inaccurate.

The IRP — ICANN’s final appeals process, designed to avoid lawsuits — is related to the .hotels contention set.

Booking.com’s uncontested application for .hotels was placed into a contention set with Despegar Online’s bid for .hoteis (the Portuguese translation) by ICANN’s independent String Similarity Panel in February 2013.

The panel ruled that the two strings are too confusingly similar to coexist on the internet, due to the similarity between the letters I and L.

That means the two applicants either had to resolve their differences privately, which apparently hasn’t happened, or enter into a potentially expensive ICANN auction of last resort.

Booking.com seemingly wants to avoid that auction, hence the IRP.

It’s the second IRP to be filed by a new gTLD applicant in this round, after DotConnectAfrica’s January filing.

ICANN tells me the IRP documents will be posted on its web site later today.