ICANN wants more newbies on its board

ICANN is planning changes to how its board of directors are picked, including new measures to get more community virgins around the table.

Under proposed new rules for its Nominating Committee, which chooses eight of the 20 directors, at least three directors at any given time would have to be “unaffiliated”.

The definition of “unaffiliated” is extremely broad, seemingly ruling out anybody who has ever had any professional involvement with the ICANN community whatsoever. Even people who have showed up at ICANN meetings on their employer’s dime would be excluded.

By my reckoning, only two of the current crop of eight NomCom appointees could possibly meet this definition, based on their biographies.

The new rules would give NomCom some flexibility in cases where it really can’t find an otherwise qualified director without any ICANN ties.

NomCom members would also get their own terms extended under the proposals, from one year to two, in order to improve institutional memory. Some current members would have their terms extended while others would not.

To tackle the same continuity issues, ICANN also wants to create a Nominating Committee Standing Committee — that’s right, an entity with two “Committees” in its name — to oversee the NomCom.

The four-person committee would be made up of former NomCom members and would be tasked with things like reviewing the previous hiring cycle and suggesting possible procedural changes. It would have no input on who gets hired and fired.

The proposals, which originate from a review that began in 2016, are open for public comment until May 29.

ICANN to crowd-source CEO search

Community members will get more input into ICANN’s leadership than they have for a decade, as the Org searches for its new CEO.

Chris Chapman, chair of the board’s newly reconstituted CEO Search Committee has laid out plans for a series of “listening sessions” that will give interested parties the chance to give their two cents into what an ICANN CEO should look like.

There’s going to be an open Zoom call for 90 minutes on May 16, along with at least a dozen other sessions with various interest groups.

The GAC, ccNSO, ALAC, RSSAC, GNSO, ISOC, IETF, ASO and former directors will all get bilateral sessions during the board’s April 27-28 workshop, and will meet with the SSAC in May.

Staff have also had two such sessions and will get one more before the June public meeting, where ICANN will publish its “candidate profile” for the gig.

The search process wasn’t nearly as inclusive last time around, when a CEO was hired in 2016, but there was a similar level of outreach in 2012, after Rod Beckstrom resigned.

New gTLDs — implementation talks to start next month

ICANN expects to kick off its implementation efforts for the next rounds of new gTLDs next month.

The Org is putting together its Implementation Review Team, a group of community members that will help shepherd staff into turning policy into reality.

Each supporting organization, advisory committee and constituency will get to nominate a representative (and an alt) and ICANN will put out an open call for volunteers for the team.

Members of the working group that came up with the policy recommendations in the first place are expected to be likely candidates.

The IRT’s main objective is to make sure that ICANN sticks to the letter and spirit of the recommendations, many of which were adopted by its board of directors last month, and prevent members re-litigating settled disputes.

ICANN expects to hold its first IRT meeting the week of May 14 or sooner.

ICANN spent millions of dollars and most of 2022 carrying out an Operational Design Assessment of new gTLDs policy recommendations, which was intended in part to relieve the IRT of some heavy lifting and speed it up.

ChatGPT maker files UDRP on .com match

The registrant of chatgpt.com must have thought he’d hit the motherlode when he picked up the domain last December, almost a month after it launched and days after the wildly popular AI chatbot had already received rave reviews from the global press.

What he got instead was a UDRP complaint with WIPO, which ChatGPT maker OpenAI filed last week.

While you’d expect it to be an open-and-shut case, it appears OpenAI was almost as slow with its trademark applications as it was with its domain registration strategy.

The company uses a subdomain of openai.com for the chat service. It launched November 30 last year and received high praise in outlets including the New York Times over the following week.

The .com registrant picked up the previously unregistered name on December 13, but it was not until December 27 that OpenAI applied for a US trademark on the brand.

It wasn’t even the first to apply for a trademark. A company called BrandCentral applied for the mark on December 15, in various “merch” categories unrelated to AI or software, but has since withdrawn the application.

Fortunately for OpenAI, WIPO allows complainants to assert common law trademark rights if the brand is sufficiently famous, and ChatGPT had well over a million users by the time the domain in question was registered.

The end of “do-nothing” ICANN?

ICANN’s new gTLD program hit a remarkable milestone earlier this month. Measured from the 2012 application window, on March 6 it officially overtook NASA’s Apollo Program, which put a dozen humans on the moon, in terms of duration.

But some in the community coming out of ICANN 76 last week appear to be cautiously optimistic that the days of the “do-nothing” ICANN, entirely too wrapped up in pointless bureaucracy and navel-gazing, may be coming to a close under its new leadership.

As I reported in January 2022, at that point ICANN hadn’t implemented a policy in over five years and didn’t seem to be close to actually getting stuff done.

That sentiment was reflected at a Cancun open-mic session last week, when 20-year community member Jordyn Buchanan, who works for Google and said he’d taken a five-year break from the ICANN process, spoke up.

“It’s not so great when I look at the substantive progress that has been made — or rather that hasn’t been made — in the past few years, or really over the past decade or so,” he told the board.

He gave several examples, not least the new gTLD program, where ICANN has been procrastinating for years.

“Consistently across the board, I think we see examples of where we’re just not living up to the vision of ICANN as being an entity that could be more responsive and more rapid looking at technological changes,” he said.

The only area where progress has been made is Whois, and that’s only because ICANN’s hand was forced by European Union legislation, he said.

Board member Chris Chapman, at his first full ICANN meeting in the role, responded positively to the feedback, stating: “There’s a real realization internally within the board that there have got to be more efficient, effective, and timely deliverables.”

Directors including interim CEO Sally Costerton and chair Tripti Sinha, made similar noises throughout the week, repeatedly invoking the idea of an “inflection point” for the institution, which faces increasing pressures from governments and other external forces.

The noises were encouraging to some.

The GNSO Council decided as the Cancun meeting closed to send a letter to Sinha and Costerton, both relatively recent appointments, observing “there seems to be a noticeable change, maybe even a cultural change, towards ‘getting things done’.”

The Council will express its support for “this spirit of pragmatism and delivery” and encourage ICANN to continue along the same lines.

Council’s spirits appear to have been raised by the ICANN’s board’s touring stakeholder bilaterals last week with questions about how ICANN can be more “agile”, particularly through the use of “small teams” to answer narrow policy problems.

Such a practice has been used in areas such as DNS abuse, and its arguably in use today answering the closed generics question.

Community members also used these sessions to express dissatisfaction with the lumbering Operational Design Assessments that have delayed Whois reform and the new gTLD program, suggesting that ODA work in future could run in parallel with the Policy Development Processes they seek to assess.

So, it seems pretty clear that ICANN’s new leadership used ICANN 76 send the signals they needed to send to get the community on board with their program.

Whether this honeymoon-period energy will lead to real change or gradually wither away under 25 years of accumulated labyrinthine bureaucracy, institutional lethargy, and personal beefs remains to be seen.

But this isn’t rocket science.

Governments backtracking on closed generics ban

ICANN’s Governmental Advisory Committee appears to be backpedaling on its commitment to permitting so-called “closed generic” gTLDs in the next application round.

The GAC’s output from ICANN 76, which took place in Cancun last week, contains a paragraph that suggests that governments are reverting to their decade-old position that maybe closed generics are not a good idea.

The GAC, GNSO and At-Large have been engaging in a “facilitated dialogue” for the past few months in an attempt to figure out whether closed generics should be allowed and under what terms.

The GAC is now saying “no policy option, including the prohibition of Closed Generics, should be excluded if no satisfactory solution is found”. It had agreed to the dialogue on the condition that prohibition would not be an outcome.

A closed generic is a single-registrant gTLD matching a dictionary word that is not a trademark. Think McDonald’s controlling all the names in .burger or Jack Daniels controlling the whole .whiskey zone.

These types of TLDs had not been banned in the 2012 application round, resulting over 180 gTLD applications, including the likes of L’Oreal applying for .makeup and Symantec’s .antivirus.

But the GAC took a disliking to these applications, issuing advice in 2013 that stated: “For strings representing generic terms, exclusive registry access should serve a public interest goal.”

This caused ICANN to implement what amounted to a retroactive ban on closed generics. Many applicants withdrew their bids; other tried to fudge their way around the issue or simply sat on their gTLDs defensively.

When the GNSO came around to developing policy in 2020 for the next new gTLD round, it failed to come to a consensus on whether closed generics should be allowed. It couldn’t even agree on what the default, status quo position was — the 2012 round by policy permitted them, but in practice did not. The matter was punted to ICANN.

A year ago, ICANN said the GAC and GNSO should get their heads together in a small group, the “facilitated dialogue”, to resolve the matter, but the framing paper outlining the rules of engagement for the talks explicitly ruled out two “edge outcomes” that, ICANN said, were “unlikely to achieve consensus”.

Those outcomes were:

1. allowing closed generics without restrictions or limitations OR

2. prohibiting closed generics under any circumstance.

The GAC explicitly agreed to these terms, with then-chair Manal Ismail (who vacated the seat last week) writing (pdf):

The GAC generally agrees with the proposed parameters for dialogue, noting that discussion should focus on a compromise to allow closed generics only if they serve a public interest goal and that the two “edge outcomes” (i.e. allowing closed generics without restrictions/limitations, and prohibiting closed generics under any circumstance) are unlikely to achieve consensus, and should therefore be considered out of scope for this dialogue.

Now, after days of closed-door facilitated dialogue have so far failed to reach a consensus on stuff like what the “public interest” is, the GAC has evidently had a change of heart.

Its new Cancun communique states:

In view of the initial outputs from the facilitated dialogue group on closed generics, involving representatives from the GAC, GNSO and At-Large, the GAC acknowledges the importance of this work, which needs to address multiple challenges. While the GAC continues to be committed to the facilitated dialogue, no policy option, including the prohibition of Closed Generics, should be excluded if no satisfactory solution is found. In any event, any potential solution would be subject to the GAC’s consensus agreement.

In other words, the GAC is going back on its word and explicitly ruling-in one of the two edge outcomes it less than a year ago had explicitly ruled out.

It’s noteworthy — and was noted by several governments during the drafting of the communique — that the other edge outcome, allowing closed generics without restriction, is not mentioned.

It’s tempting to read this as a negotiating tactic — the GAC publicly indicating that a failure to reach a deal with the GNSO will mean a closed generics ban by default, but since the facilitated dialogue is being held entirely in secret it’s impossible to know for sure.

Brands want new gTLD fast track

The Brand Registry Group is to propose a set of principles for the next round of ICANN’s new gTLD program that it thinks would see the initial application fee slashed by more than half and some evaluations starting as early as this October.

Under the proposals, TLD-curious applicants could get into the system for as little as $100,000 per string, about $150,000 lower than ICANN’s current estimate, and could see ICANN accepting applications as early as April 2025.

The recommendations, drafted by GoDaddy’s Tony Kirsch and Pharos Global’s Michael Palage, will be presented at a session on Saturday, the first day of ICANN’s 76th public meeting, in Cancun, Mexico.

They’re calling the proposals “Option 2a”, a reference to the two options laid out in ICANN’s Operational Design Assessment of the next round, which was completed in December.

The plan would allow applicants to pay $100,000 to submit a bare-bones application and test the waters in terms of contention, objections and similarity. They could then choose to withdraw before submitting the financial and technical portions of their bid.

Applicants with straightforward applications (presumably including most dot-brands) would have a lower overall cost than those who need additional reviews, contention resolution and objection processing.

The paper also criticizes the “astonishing” estimate of a $400 million program development cost, suggesting instead that ICANN repurpose its existing tools such as Salesforce to roll out the application submission system.

It reckons ICANN could start its Registry Service Provider Pre-Evaluation Program, based on the process it already uses when registries switch back-ends, in October this year.

If ICANN adopts the proposals, the BRG reckons a final Applicant Guidebook could be approved in October 2024, with applications accepted from April 2025.

This is why ICANN is worried about new gTLDs right now

ICANN’s board of directors yesterday laid out a whole bucket list of concerns it has about the next round of new gTLDs, some of which it thinks might take over a year to resolve.

The board told the GNSO Council on a conference call that it has 38 areas of concern that will need to be addressed before it can fully approve the policy recommendations sent to it two years ago.

ICANN has identified 298 recommendations emerging from the GNSO’s Final Report (pdf) into the future of the new gTLD program.

The board intends to fully approve 94 of those recommendations March 16, at its meeting in Cancun, which begins next week. A further 168 are believed to be covered by already-approved policy and will simply be “acknowledged”.

That leaves 38 that will need further discussion between the board, Council and Governmental Advisory Committee, covering areas such as legal and financial exposure, potential bylaws violations, and worries about gaming.

Here’s my non-exhaustive hot take on the issues that look most interesting to me.

First-come, first-served

Most surprising to me are indications that the current board appears to favor a gradual transition to making new gTLDs available to applicants on a first-come, first-served basis.

The GNSO’s Final Report was firm that the program continue to operate in discrete, regular rounds, with finite application windows. It rejected the idea of FCFS for a host of persuasive reasons.

But director Becky Burr told the Council yesterday: “The Board really would like to consider whether it makes sense to move to a system of continuous applications at some point.”

“In other words, moving out of rounds into a first-come first-served mode at some point, because that would have a lot of potential advantages with respect to string similarity issues and contention sets and the like,” she said.

FCFS could remove these costly aspects of the program — no contention sets means no auctions, for a start — but do we really want a process where the fastest trigger-finger is the sole decider of who gets a gTLD?

This would make obtaining a gTLD more akin to drop-catching. Anyone remember digital archery?

The board suggests the GNSO reconvene its Policy Development Process working group to address this issue, with a target date of June this year for resolution.

Emojis

The board is also worried that the Final Report suggests a blanket ban on emojis “at any level” in gTLDs, for security and stability reasons — since there’s no standard for how emojis are rendered in software, the chance of confusion is pretty high.

This appears to be an easily fixable problem of wording. The board points out that it only has power to set policy for gTLDs and second-level domains, a ban “at any level” — which would include [emoji].example.example domains — may be ultra vires.

Simply clarifying that the ban only applies at any “registerable” level may be enough to put this concern to bed, but the board reckons it might take until October.

The Content Police

As previously reported, the board has concerns about proposals for “Registry Voluntary Commitments”, which would be contractually enforceable promises to only allow, for example, certain types of content or registrant.

This could go against ICANN’s bylaws commitments to stay out of policing internet content, a very sensitive issue.

ICANN has previously floated the idea of amending the bylaws to enable RVCs, but now the board wants to talk further with the GNSO before taking any action. It thinks it could take until April 2024, 13 months from now, to sort this out.

Watching the Pennies

The board has a number of concerns that some GNSO recommendations may risk emptying ICANN’s coffers.

It wants to revisit the idea that the Applicant Support program be expanded to include lawyers fees and application-writing services, for example. In 2012, it only subsidized ICANN’s own application fees.

The board is also worried that releasing dot-brand owners from the required to post a financial bond to cover the Emergency Back-End Registry Operator’s costs should the TLD fail may end up costing ICANN money.

The Future

The good news arising from yesterday’s briefing appears to be that the board is set on approving the continuation of the new gTLD program in less than two weeks.

The bad news is that there are a few dozen recommendations, grouped into 16 buckets, that it thinks need more work before they can be approved. It thinks these issues can be wrapped up by April 2024, however.

First two proper registrars join Web3 Domain Alliance

Two significant ICANN-accredited registrars have signed up to a body that commits them to, among other things, endorse the position that blockchain-based alt-root TLDs have trademark rights to their strings.

United-Domains and MarkMonitor are among about 50 companies now listed as new members of the Web3 Domain Alliance, the association created late last year by well-financed alt-root registry Unstoppable Domains.

The other companies listed appear to be players in the crypto/blockchain/Web3/NFT space, rather than the traditional domain name industry.

The moves by the two registrars are significant because the Alliance’s platform stands to be a significant thorn in ICANN’s side when it finally opens up the next new gTLD application round, which could happen in the next couple years.

According to the Alliance’s web site, members have to commit not only to promote the market acceptance and interoperability of blockchain alt-root domains, but also:

To advocate for the policy position that NFT domain registry owner-operators create trademark rights in their web3 TLDs through first commercial use with market penetration.

This could be a big problem in the next new gTLD round, as current ICANN policy proposals, developed before the likes of Unstoppable became such a big deal, do not specifically account for claims by alt-root providers.

Trademark owners will be able to challenge gTLD applications if the applied-for string matches their mark, but historically it’s not really been possible for companies to obtain trademarks on TLDs.

Along with the membership announcement, Unstoppable has said that it will not enforce its patents against any Alliance member that implements its standards, provided the member agrees not to enforce its own patents.

United-Domains is part of United-Internet, the same company that runs IONOS, 1&1, Sedo and InternetX.

MarkMonitor, since November, has been part of Newfold Digital, the parent of Network Solutions, Web.com, Register.com, BigRock, SnapNames, and others.

New gTLDs report came in under budget

ICANN spent less than expected carrying out the Operational Design Phase of the new gTLD program last year, according to financials published yesterday.

The Org’s second fiscal quarter (fourth calendar quarter) report shows it spent $6.8 million on the ODP, which ended in mid-December with the delivery of the Operational Design Assessment.

That’s under the low-end of the $7 million to $9 million ICANN’s board of directors had approved for its budget.

The report also reveals that roughly 15 full-time equivalents, mostly ICANN staff, spent a total of over 27,000 hours to produce the ODA report, which is currently awaiting board approval.

The financial report shows that ICANN spent about $400,000 more than expected on its AGM in Kuala Lumpur last October. This, it said, was due to higher airfare costs, partially offset by 45 fewer funded travelers than expected attending.

Overall, ICANN received about $1 million more in funding than it expected, at $76 million, due to not losing as many registrars as expected, and its FY23 spend to date was $67 million, about $5 million under budget due to “lower than planned professional services and personnel costs”.

It had an average 399 staff over the period and ended the year with total assets of $558 million, $438.3 million of which is invested.