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How ICANN overruled governments on .xxx

Kevin Murphy, March 19, 2011, Domain Registries

In approving the .xxx top-level domain, ICANN has for the first time explicitly overruled the wishes of international governments, as represented by its Governmental Advisory Committee.

In its rationale (pdf) for the decision, ICANN explains why it chose to disregard the GAC’s views.

There are two pieces of GAC advice that have been quite important. One was delivered in Wellington in 2007, the other was delivered yesterday

The Wellington GAC Communique noted that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”

That was repeated during a terse, 10-minute “bylaws consultation” on .xxx yesterday, during which the the GAC also said “there is no active support of the GAC for the introduction of a .xxx TLD”.

ICANN chose to reject (kinda) both of those pieces of advice, on the basis of a quite literal interpretation — that GAC support was unnecessary and the advice was not specific enough:

There is no contradiction with GAC advice on this item. Active support of the GAC is not a required criteria in the 2004 sTLD round. Further, this is not advice from the GAC either to delegate .XXX or to not delegate .XXX, and therefore the decision to delegate .XXX is not inconsistent with this advice.

Unfortunately, this gives pretty much no clue to how the board will treat minority GAC positions in future, such as when some governments object to new gTLDs.

But companies planning to apply for potentially controversial TLDs can take heart from other parts of the rationale.

For example, the board did not buy the notion that .xxx should be rejected because some countries are likely to block it.

Saudi Arabia has already said it intends to filter out .xxx domains.

The GAC was worried that this kind of TLD blocking would lead to a fragmented root and competing national naming systems, but ICANN wasn’t so sure. The rationale reads:

The issue of governments (or any other entity) blocking or filtering access to a specific TLD is not unique to the issue of the .XXX sTLD. Such blocking and filtering exists today. While we agree that blocking of TLDs is generally undesirable, if some blocking of the .XXX sTLD does occur there’s no evidence the result will be different from the blocking that already occurs.

It’s been noted that some Muslim countries, for example, block access to Israel’s .il domain.

One director, George Sadowsky, dissented from the majority view, as is his wont. In a lengthy statement, he named stability as one reason he voted against .xxx.

He said “the future of the unified DNS could be at stake” and “could encourage moves to break the cohesiveness and uniqueness of the DNS”.

He drew a distinction between the filtering that goes on already and filtering that would come about as a direct result of an ICANN board action.

He was, however, in the minority, which makes proposed TLDs such a .gay seem likely to get less of a rough ride in future.

.xxx domains could arrive by June

Kevin Murphy, March 18, 2011, Domain Registries

ICANN’s board of directors today approved the .xxx top-level domain, over the objections of governments and pornographers.

The vote was 9 to 3 in favor, with three directors recusing themselves due to conflicts of interest and the CEO abstaining (pretty typical for votes on .xxx over the years, I think it’s a liability thing).

Assuming the US government, which controls the DNS, doesn’t try the nuclear option of overruling ICANN, .xxx could make it into the root about 10 days from now.

Now expect ICM Registry to ramp up the marketing quite quickly – it’s aiming to launch the first of its three sunrise periods in mid-June, just three months from now.

We’re looking at a landrush certainly before the end of the year.

While ICM, in a press release today, said .xxx domains “will only be available to the adult entertainment industry”, the industry is self-defining, and president Stuart Lawley has previously stated that flipping porn domain names counts as an industry service.

Domain investors are welcome, if not necessarily encouraged, in other words.

I hear ICM has already reached out to registrars, giving them a mid-April deadline to apply to be evaluated.

The TLD launching on schedule will of course also depend on whether any legal action is taken to stop it. Diane Duke, executive director of the Free Speech Coalition, a porn trade group, said at a press conference yesterday that the FSC is thinking about suing.

She also said that it may arrange some kind of boycott, which strikes me as a terrible idea – how many pornographers will refuse to defensively register their .xxx domains out of principle? Very few, I suspect.

The FSC said last week that it was also looking into a Reconsideration Request or an Independent Review Panel procedure, which are the only two real avenues of appeal through ICANN.

An IRP could be more expensive than a lawsuit, and if precedent is any guide even a successful Reconsideration would be moot – it would take at least a month, by which time ICM’s registry contract would be long since signed.

It seems likely that ICM’s long, strange, expensive journey into the DNS may finally be at an end.

OpenRegistry wins .sx contract

Kevin Murphy, March 16, 2011, Domain Registries

OpenRegistry, the recently formed registry services provider, has won its first top-level domain deal.

The Benelux-based company has been signed up to provide the back-end registry for .sx, the country-code TLD newly assigned to Sint Maarten.

The deal with Sint Maarten’s government will see the formation of a new company, SX Registry SA, a joint venture of OpenRegistry and MediaFusion, a small Canadian registrar.

MediaFusion’s president, Normand Fortier, will serve as CEO of the company.

The registry’s policies and registrar partners will be announced over the coming weeks, but OpenRegistry CEO Jean-Christophe Vignes tells me the plan is to have a completely open, global ccTLD, along similar lines to the recently relaunched .co domain.

The ClearingHouse for Intellectual Property, CHIP, has been engaged to provide trademark protection services for .sx’s sunrise period.

Sint Maarten is a new country, one of three that formed following the break-up of the Netherlands Antilles (.an) last October. It was assigned .sx in December.

As such, the ccTLD has not yet been officially delegated to anyone, and the new company is hopeful it will be able to lock it down by ICANN’s June meeting in Singapore.

OpenRegistry, while employing experienced staff, does not currently operate any TLD registries. The .sx deal may make the company more appealing to other new TLD applicants.

ICANN staff grilled over new TLDs

Kevin Murphy, March 13, 2011, Domain Registries

ICANN’s San Francisco meeting kicked off this morning with staff members responsible for the new top-level domains program answering – and trying to answer – stakeholder questions.

The short version: it’s still not clear what the end result of San Francisco will be when it comes to new TLDs.

The big deal this week is ICANN’s ongoing consultation with its Governmental Advisory Committee, which remains the biggest hurdle before ICANN can approve the program.

GNSO stakeholders wanted to know the current state of play with this consultation, and how close ICANN is to wrapping up policy development and launching the new TLD program.

A key question is whether the two days of talks the board has scheduled for this week count as the final GAC consultation called for in ICANN’s bylaws.

If they are, the board and the GAC could wrap up their negotiations before the board meets on Friday, and the program is one step closer to approval. ICANN wants this.

If they’re not, we could be looking at further GAC talks stretching on into the weeks or months between now and the Singapore meeting in June. The GAC seems to want this.

ICANN senior vice president Kurt Pritz said that the board and GAC met for one hour yesterday, but that they still have not agreed on the “bylaws” designation.

He said that the board “has a sense of urgency” about approving the program as soon as possible, and that the GAC is newly “energized”.

Staff were asked, by VeriSign’s Chuck Gomes and Minds + Machines’ Antony Van Couvering, whether such a consultation is needed at all.

After all, as has been discussed in articles on CircleID and .nxt recently, there’s no mention in the ICANN bylaws of a “consultation” per se.

Deputy general counsel Dan Halloran said that this is an area still open for discussion, but indicated that reaching common ground on the substantive issues is currently the priority.

There seems to be a feeling that the current talks represent not only a necessary step in approving new TLDs, but also a landmark piece of cooperation in the sphere of internet governance.

On the substantive issues, ICANN has currently marked each of the 80 points the GAC has made with the designation 1a, 1b or 2, depending on whether agreement has been reached, only reached in principle, or has not been reached at all.

The focus this week is going to be on the 23 “2s”. These are the issues, Pritz said, where ICANN has determined that to agree with the GAC would run contrary to the GNSO’s consensus positions.

Philip Corwin of the Internet Commerce Association, which represents domain investors, wanted to know whether “1a” topics are currently locked – the ICA is unhappy with a 1a concession ICANN has made regarding the Uniform Rapid Suspension policy.

The answer from staff was basically yes — a 1a is where ICANN’s board and staff think “we’re done”, Pritz said.

The plan for the rest of the week is to hold open discussions on the new TLD process on Monday and Wednesday, with corresponding bilateral GAC-board sessions on Tuesday and Thursday.

Stakeholder groups have been invited to make statements before and to inform these sessions.

Neustar wants to be a registrar ASAP

Kevin Murphy, March 10, 2011, Domain Registries

Neustar, registry manager for the .biz and .us top-level domains, has put the wheels in motion to acquire an ICANN registrar accreditation as soon as possible.

It’s the first major gTLD operator to formally request permission to “vertically integrate” since ICANN announced last November that it was prepared to lift the ownership caps that have previously kept registries and registrars quite strictly separated.

Neustar’s .biz contract currently forbids it from owning more than 15% of an ICANN registrar.

In a letter to ICANN sent this afternoon, Neustar vice president of law and policy Jeff Neuman said the company wants this provision deleted:

We are asking for this language now to allow Neustar to compete fairly for new gTLDs on the same terms and conditions as registrars entering the new gTLD registry market.

It is critical to resolve this issue immediately to ensure that Neustar is able to compete on a level playing field with the new entrants into the marketplace and to promote the efficiencies and innovation for consumers as advocated by the ICANN Board.

ICANN shocked the industry last year when its board of directors decided to allow registries and registrars to own each other.

The decision meant that niche community and brand TLDs will be able to sell direct to registrants, without having to secure the support of reluctant big-name registrars.

It also meant that existing gTLD operators will be able to own registrars for the first time.

As a caveat, designed to protect consumers from gaming registries, ICANN proposed a Code of Conduct designed to limit the cross-pollination of data that could be abused.

Similarly, the Code calls for registries to treat all approved registrars equally, regardless of ownership stakes, to avoid competition concerns.

Neuman wrote that Neustar is prepared to have language along the lines of the current draft Code of Conduct, but “no more restrictive”, incorporated into the .biz registry contract.

Other incumbent gTLD registry operators, notably VeriSign and Afilias, are bound by similar contractual restrictions and will presumably also pursue their options along the same lines in future.

Competition for .africa heats up

Kevin Murphy, March 10, 2011, Domain Registries

AfTLD, an organization of African country-code top-level domain operators, has announced its intention to apply to ICANN for the .africa TLD.

The initiative appears to be different to and competitive with the best-known .africa applicant to date, Sophia Bekele’s DotConnectAfrica.

AfTLD said that it plans to seek a mandate for .africa from the Commission of the African Union. It also expects to discuss forming a company to manage the bid at a meeting in Ghana next month.

Vika Mpisane, AfTLD’s chairman and general manager of South Africa’s .za ccTLD, said in a press release:

We are not just interested in .africa only, but we want to also take on .afrique, which is the French version of .africa. It’s only natural for us to do this because at least 50% of Africa speaks French. We also intend to have an internationalised version of .africa as well because we have significant Arabic Africa population, but we will start definitely with .africa first.

AfTLD shortly intends to announce a “leading registry services provider” to run its back-end, but indicated that in future it would expect to run the registry from within Africa.

The current version of ICANN’s new TLDs Applicant Guidebook sets the bar for a .africa bid very high, in practice possibly requiring near-universal governmental support.

A bidder for this kind of protected geographic term would require letters of support from 60% of the nations concerned. For Africa, as the Guidebook defines it, that’s about 34 countries.

However, crucially, if more than one African government were to object in writing to any given .africa application, that bid could be killed off.

AfTLD has 24 ccTLD registry members. They’re not all government-run TLDs, of course, so it doesn’t necessarily follow that it already has 24 countries on board.

A key question is whether endorsement of a bid by the African Union could be interpreted as blanket approval from all of its 53 member governments. I don’t think that’s a given, under the letter of the Guidebook.

But if it is, DotConnectAfrica may already be there. It has a signed letter from AU Commission chairman Jean Ping, dated August 2009, that endorses its specific bid.

AusRegistry chalks up third Arabic domain win

AusRegistry International has announced it has been picked to provide the back-end registry for عمان., the Arabic-script internationalized domain name for Oman.

It’s the company’s third IDN ccTLD contract in the region, following on from Qatar’s forthcoming قطر. and the United Arab Emirates’ already-live امارات.

The company’s press release suggests to me that it’s a software/support deal, rather than a full-blown hosted back-end registry solution.

AusRegistry said it will “provide Domain Name Registry Software and supporting services for the establishment of a new Domain Name Registry System”.

It has previously announced back-end deals for ASCII ccTLDs including .qa and .ae, and manages Australia’s .au, which recently passed the two million domains milestone.

The deal with Oman, which AusRegistry said was competitively bid, also encompasses .om, the nation’s regular ccTLD.

While ICANN approved Oman’s chosen string under its IDN ccTLD Fast Track program back in October, it has not yet been delegated to the DNS root zone.

With the approval of Ukraine’s Cyrillic ccTLD last week, 25 territories have had their choice of local-script ccTLD given the nod under the program.

New TLDs conference calls for speakers

The newdomains.org conference on new top-level domains, scheduled for September 26 and 27 in Munich, has put out a call for speakers.

Here’s the catch: if you’re interested, you might need an audition tape. The organizers want to see a short YouTube clip of your presenting skills in action before they consider your pitch.

Ram Mohan, CTO of Afilias, and Tim Schumacher, CEO of Sedo, are both already named on the draft agenda, but there are still plenty of open spots, including the first-day keynote.

Franz Josef Pschierer, IT commissioner of the Bavarian state government, will keynote day two.

The conference is being organized by the registrar United Domains, part of the same family of domain name companies as Sedo and 1&1 Internet.

While newdomains.org will take place in Germany, possibly the biggest market for new TLDs outside of the US, all the sessions will be conducted exclusively in English.

The conference currently looks like it’s shaping up along the same lines as the .nxt conference last month, with sessions on brand protection, community building, marketing and so on.

One notable difference is the addition of coached “workshops” as well as panel discussions.

Extracurricular activities include a tram ride around the city and a visit to the Hippodrom tent at Oktoberfest, the world-famous beer-drinking festival.

Needless to say, I shall be in attendance. For the trams, obviously.

Start-up plans .bank and .secure TLDs

The first applicant for “.bank” and “.secure” top-level domains has revealed itself.

Domain Security Company, a start-up based in Wisconsin, is behind the proposals. It’s currently seeking funding for the applications, according to its web site.

The firm says it will offer security via a mix of “technical innovations, process improvements, and enhanced requirements”.

Its intention to obtain .secure and .bank seems to have first emerged when it filed for a US trademark registration on both TLDs last September.

The company’s domain name – interestingly, it’s a .co – is registered to entrepreneur Mary Iqbal of Asif LLC, a frequent participant in ICANN policy-making.

I think I’m on record as saying I think .secure is an incredibly risky proposition, the equivalent of painting a giant target on your back. Nothing on the internet is truly secure, and a TLD that says otherwise is a bold statement that invites trouble.

I think it’s also fair to say that unless Domain Security Company manages to secure the support of the world’s leading financial institutions, it will face an extremely tough fight to win .bank.

The Financial Services Roundtable’s technology arm, BITS, has taken a strong view on .bank, and is drafting security guidelines it hopes will be used by applicants.

And ICANN’s Governmental Advisory Committee still wants TLDs including .bank to be subject to a higher level of community support before they are approved.

It’s possible that .secure will be contested. Another site seems to have a similar idea.

ICANN takes firm stance on new TLD delays

ICANN wants to draw a line under its talks with its Governmental Advisory Committee on new top-level domains at the San Francisco meeting next week.

In a letter to his GAC counterpart (pdf), ICANN chair Peter Dengate Thrush said that he thinks the San Francisco talks should be “final”.

He said that ICANN has agreed to compromise with the GAC wholly or partially on all but 23 of its 80 recommendations for the program.

He also said that these remaining issues should be the focus of the two days the board has set aside to consult with the GAC in San Francisco.

a narrowed focus in San Francisco on the issues that are still in contention would be a best use of the Board and GAC’s time during the two days of consultations, and should represent the final stages in our required consultation.

That appears to contrast with the GAC’s position, expressed in Brussels last week, that the SF talks should not be given the final “bylaws consultation” designation.

Nobody, possibly not even ICANN and the GAC, knows what a “bylaws consultation” consists of, but everybody knows that it is the last thing that needs to happen before the ICANN board can adopt a policy that overrules the formal advice of governments.

ICANN has already officially resolved that the consultation should happen March 17, but GAC chair Heather Dryden objected to that date in an email sent during Brussels.

According to Kieren McCarthy, who has apparently seen the email or parts of it, Dryden wrote:

We believe there is now insufficient time to receive a final written response to our advice from the Board – as well as then analyse and prepare an adequate consensus response from GAC members – to reach resolution of enough outstanding issues such that we could reasonably enter any meaningful bylaws consultation on 17 March in San Francisco.

To delay the consultation would very likely delay the next draft of the Applicant Guidebook, currently set for April 14, and thus the launch of the program itself.

It was not clear from Brussels, but ICANN’s position that March 17 is the date now appears to be firm. The just-published agenda for the March 18 board meeting carries this line item:

Outcome of Bylaw Consultation with the GAC on the new gTLD Program

Things that have not happened generally do not have an “outcome”.

Cybersquatting is the major issue still unresolved. Fifteen of the the 23 areas where the board still disagrees with the GAC deal with trademark protection in new TLDs.

ICANN has agreed to balance the Uniform Rapid Suspension policy – which comes into play following clear-cut cases of cybersquatting – somewhat more in favor of trademark holders.

The amount of money, time and effort required to make a URS case will be reduced, and it’s likely that registrants will have their domains locked by default if they do not respond to the complaint.

Complainants will also get first right of refusal to take over a domain whose registration has been suspended due to a URS proceeding.

But ICANN plans to deny the GAC’s requests for a “loser pays” model and a number of other URS-related tweaks.

The GAC had also advised that the Trademark Clearinghouse database should be expanded to include trademark+keyword registrations. This would allow Kodak, to use the GAC’s example, to prevent cybersquatters from registering not only kodak.tld but also kodakcameras.tld.

Dengate Thrush’s letter says that this “remains an area for discussion”, but ICANN still currently plans to diverge from GAC advice.