What next for new TLDs? Part 3 – The .xxx Factor

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 third post, I will look at the state of play with the .xxx TLD application, and what that means for the new TLD process.
The .xxx Factor
At some time in February, the ICANN board and its Governmental Advisory Committee plan to meet (possibly in Geneva) to discuss both the AGB and the .xxx TLD proposal.
While these are two separate issues, how .xxx is being handled may have an impact on the timetable for the AGB’s approval.
Let’s first look at what’s happening with .xxx.
As you will have almost certainly already read, the ICANN board resolved on Friday that it “intends to approve” .xxx, despite GAC advice that may be to the contrary.
The ICANN-GAC power structure is governed by an 11-point charter in ICANN’s bylaws. The last two points, J and K, deal with what happens when the two parties disagree.
Under what, for the sake of brevity, I’m going to call “GAC-J” (instead of “ICANN Bylaws section Article XI, Section 2, Paragraph 1(j)”), ICANN has to call a meeting with the GAC when it plans to disregard GAC advice.
Specifically, if the ICANN board “determines to take an action” that is not consistent with GAC advice, it has to “inform” the GAC, stating why it decided to not follow the advice, then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.
GAC-J has, to the best of my knowledge, never been invoked before. There isn’t even a procedure in place for handling this kind of official consultation.
But on Friday, the board stated that it intends to not follow the GAC’s advice on the .xxx application and “hereby invokes the consultation as provided for in ICANN Bylaws section Article XI, Section 2, Paragraph 1(j).”
Now that GAC-J has been invoked, the GAC and board will meet to find their “mutually acceptable solution”.
Should such a solution prove elusive, the ICANN board has to make a final decision, stating why it has disregarded the GAC’s advice. That’s handled by what I’ll call GAC-K.
What does all this have to do with new TLDs and the timetable for the publication and approval of the final Applicant Guidebook?
As ICM Registry president Stuart Lawley pointed out in a comment on CircleID, the procedures being created to resolve the .xxx dispute could very well soon be applied to the AGB.
As Lawley points out, ICANN has not yet put the GAC on notice that it plans to disagree with any of the 11 concerns outlined in the Cartagena GAC Communique.
While the Communique “assumes” ICANN has invoked GAC-J with regards new TLDs, the board has not explicitly done so.
This is uncharted territory, but I think it’s possible that this oversight (if it is an oversight) has the potential to add latency to the new AGB approval timetable.
ICANN might be well-advised to pass a resolution officially invoking GAC-J before the February bilateral meeting, in order to turn it into a bylaws-compatible consultation.
As long as it invokes the bylaws before March, the San Francisco meeting will be able to host a GAC-Board consultation under the terms of GAC-J, enabling the AGB to be approved that week.
If ICANN does not take either of these options, the GAC will be able (if it wants to be a pain) to further delay the process by demanding another inter-sessional consultation, like it just did in Cartagena.
I’ll discuss the GAC’s actual concerns in the fourth part of this post.

What next for new TLDs? Part 2 – The GAC Bottleneck

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 second post I will look at the process problems presented by ICANN’s Governmental Advisory Committee.
The GAC Bottleneck
The main meta-story of Cartagena was ICANN’s turbulent relationship with its Governmental Advisory Committee, which is either maturing or (less likely) heading to towards a shattering collision.
The two big proposals that were widely expected to get the ICANN board’s nod last Friday – the new TLD final Applicant Guidebook and the .xxx TLD – were both delayed in whole or part by the GAC.
It’s become abundantly clear that the overall ICANN decision-making process has become subject to what I’m going to call the GAC Bottleneck.
If ICANN is serious about getting things done to its desired timetable in future, it will need to start paying attention to the GAC much earlier and much more seriously.
There’s been a failure to communicate over the last several years, the inherently problematic results of which were clearly embodied in sessions last Monday in which the GAC and the ICANN board discussed the definition of “advice”.
If there’s an “advisory” committee, and neither the committee nor the body its “advises” knows what “advice” means, that’s a pretty big stumbling block to constructive dialogue, which helps nobody.
The GAC believes that this historic uncertainty is the main reason why the new TLD program has hit an impasse at this late stage in the process.
The official Cartagena GAC Communique said:

the GAC considers that these [unresolved GAC concerns with the AGB] result primarily from the fact that the Board adopted the GNSO recommendations on new gTLDs without taking due account of GAC advice at that time, thereby creating a flawed process.

That’s pretty strong stuff – the GAC is basically saying that all the thousands of discussions the community has endured since 2007 have been carried out under faulty assumptions, because ICANN failed to pay heed to GAC advice when it was writing the rules of engagement for developing new TLD policy.
It’s also the reason we’re looking at the need for a GAC-Board retreat next February, at which ICANN will attempt to address the GAC’s outstanding concerns, before the AGB can be approved.
More on that in part three of this post.

Want a premium .xxx domain? Now’s your chance

ICM Registry, despite suffering another setback at the Cartagena ICANN meeting last week, has set the wheels in motion for the launch of .xxx with the announcement of a Founders Program.
If you want to get your hands on a “premium” .xxx domain without having to pay a tonne at auction, this is your chance.
ICM said it will license premium domains to organizations willing to develop and market their sites for at least two years, raising awareness of the TLD.
.CO Internet did a similar thing with .co, issuing one-character names to the likes of Go Daddy and Twitter. Other registries have had founder programs for super-short domains.
The program will be open to newcomers, as well as those who own “matching” domains in other TLDs.
The .xxx application is currently on hold, pending ICANN’s consultation with its Governmental Advisory Committee in February, but ICANN has said that it “intends” to approve it.
It will be interesting to see how many members of the adult community currently opposed to .xxx, if any, will attempt to participate as a Founder.
(Hat tip: Michele Neylon)

ICANN new TLD launch delayed (again)

ICANN’s new top-level domains program has been delayed, likely for a few months at least, after governments submitted a laundry list of issues they believe are still unresolved.
The Governmental Advisory Committee is mainly bothered that the Applicant Guidebook fails to adequately protect trademark rights and that the cost of the program could outweigh the benefits.
The ICANN board resolved at its meeting here in Cartagena earlier today to meet with the GAC for an unprecedented consultation next February.
(The meeting will also discuss the .xxx application, which I’ve reported on for The Register).
The actual board resolution is hopelessly lengthy and confusing at first reading. Take this doublethink:

ICANN considers that the solutions developed to address the overarching issues of trademark protection, mitigating malicious conduct, and root-zone scaling substantially reflect the negotiated position of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Some delegates here tell me they think this means the book has been closed on the portions of the guidebook dealing with IP protection mechanisms, for example.
(J Scott Evans, head of the IP constituency, stormed out of the room in a huff when this part of the resolution was read aloud.)
But the text of the resolution pretty clearly states that IP protections and the other overarching issues are still open for negotiation with the GAC and could be amended based on comments filed this week.
The resolution is open to interpretation with regards these three “overarching issues”.
It does, however, refer to other issues that are explicitly unresolved in ICANN’s view, namely the treatment of geographic names and the handling of “morality and public order” objections.
Both are singled out as needing more work before they can be finalized.
What does all this mean for the launch timetable? I think it means there isn’t one. Again.

[The ICANN board] Directs staff to synthesize the results of these consultations and comments, and to prepare revisions to the guidebook to enable the Board to make a decision on the launch of the new gTLD program as soon as possible.

“As soon as possible” is either meaningless or, taken literally, means the board’s next meeting. That’s likely to be late January, if previous years are any guide.

Calls for “fast-track” for new TLDs

Some would-be top-level domain registries have started to call for ICANN to gradually phase in the launch of its new TLD program, so they can get their feet in the door early.
ECLID, a group of six “cultural and linguistic” TLD applicants, is among a number of organizations saying that ICANN could introduce a small number of non-controversial TLDs before opening the floodgates to hundreds of new extensions.
Judging that IP concerns may continue to hold up the first round of applications and that cybersquatting risks may not be as significant in domains such as .scot or .eus, ECLID’s Davie Hutchison wrote:

We ask that ICANN move forward at speed and with determination and prevent further delay causing damage to the clTLDs and other community TLDs that will enhance the richness and diversity of the Internet. Failing the courage or resolve to do that, we ask ICANN to create a fast-track process for the “safe” community TLDs which would be an excellent testing ground for the process before opening it up to the non-community based TLDs.

Calls for a “fast track” for non-controversial TLDs have also been made by members of ICANN’s Governmental Advisory Committee this week.
It’s been the GAC’s position for a few months now that “uncontroversial” community TLDs, including those with cultural and linguistic ties, should be dealt with first.
The idea doesn’t make a heck of a lot of sense to me. A phased launch would require the development of a new objective process to categorize applicants into “controversial” and “non-controversial” buckets.
For the amount of time and effort that would take, ICANN may as well just sort out the problems with the Applicant Guidebook as a whole.
Kurt Pritz, ICANN’s veep in charge of the new TLD program, addressed the feasibility of a phased launch during a press conference here in Cartagena today, noting that “it’s very difficult to have a round in which just a certain type of TLD allowed to apply”.
ICANN tried to restrict TLDs to limited communities with the 2003 round of “sponsored” TLDs, causing problems and controversies that continue to be felt seven years on.
I think it’s fairly safe to say that any rulebook that limited what TLDs could be applied for or who could apply for them would be soundly gamed by the domain name industry (cf .jobs, .xxx, .travel, etc).

ICANN sees “crescendo” of new TLD comment

With less than 24 hours to go before ICANN’s board of directors decides the fate of the new top-level domains program, the comments and criticisms are rapidly accumulating, split along predictable lines.
In short: pretty much everybody in the domain name industry wants the TLD process to kick off ASAP, and pretty much everybody else who has an interest thinks it should not.
Kurt Pritz, ICANN’s senior vice president of stakeholder relations, said at a press conference this morning that “rather than comment diminishing towards the end to a whimper and the Guidebook being launched, we’re seeing it raising to a crescendo”.
Publicly filed comments can be found here.
“Crescendo” may be an over-statement, but verbal comments here at the ICANN meeting have been flying thick and fast and the rhetoric dial will certainly get turned up to 11 during the public forum this afternoon.
Many opponents of the proposed final Applicant Guidebook are objecting to the fact that the deadline for filing comments is tomorrow, just a couple of hours before the board convenes.
Microsoft associate general counsel Russell Pangborn, for instance, wrote:

Approval of the PAG on December 10 conveys the message that the Board deems public comment irrelevant. The possibility that ICANN staff will have read all public comment and provided a public comment summary to the Board with sufficient time for full consideration and discussion by the Board is slim at best.

Microsoft is one of many companies worried that new TLD registries’ business models will essentially be subsidized by defensive registrations paid for by big trademark holders.
The US Chamber of Commerce put it fairly succinctly:

the current plan still requires businesses to pay for defensive registrations in hundreds of new gTLDs, at prices that are unconstrained by ICANN or other bodies… Moreover, the legal expenses and domain acquisition costs of defensive registrations will not be offset by potential economic or informational value to either registrants or Internet users.

But the most comprehensively detailed objection filed by IP stakeholders over the last day or so seems to have come from INTA, the International Trademark Association.
Weighing in at 15 pages, the INTA filing says the AGB “raises significant new issues”, such as the lifting of the vertical integration ban and the new registry code of conduct.
One of its biggest issues, which I’ve heard from several other people here in Cartagena this week, is that the AGB’s rights protection mechanisms, such as Uniform Rapid Suspension and the Trademark Clearinghouse, seem to specifically exclude non-US trademarks.
That’s a pretty big issue for Europeans – the German representative on the Governmental Advisory Committee indicated on Tuesday that he thinks it’s a deal-breaker.
As I blogged yesterday, the GAC has aligned itself with the trademark lobby in its objections to ICANN, which may well delay the launch of the new TLD program somewhat.
The key issue for the GAC is the balance between cost (to trademark owners) and benefit (to everyone else).
Elliot Noss of Tucows expressed in his comment how difficult it is to predict what economic value could be created by new TLDs.

When the new round proceeds we will see a marked change in the way people will use domain names. The ability to find resources of all kinds more easily on the Internet will provide a small, but clear incremental benefit to users. But that benefit will be felt trillions of times! Every time someone finds something on the Internet more easily there will be a benefit.
…
There has been a lot of discussion of competition for .com. What we need to think about is NOT will any single domain become a competitor for .com, but instead will a large number of domains in aggregate provide competition for .com. This issue cannot possibly be understood by studying the extremely limited TLD introductions of the past.

Some other likely TLD applicants kept their statements short and sweet, perhaps for fear of inadvertently causing delay through verbosity.
Statton Hammock of Network Solutions wrote:

A document of this complexity and importance can never be “perfect,” or “complete” in the eyes of everyone. Though further refinements to the language could be made, we believe that the DAG, in its current form, is robust enough to support the launch of the new gTLD application process.

Pritz said that the ICANN board is “actively monitoring” the comments and will continue to do so up until its meeting tomorrow.

Trademarks may delay new TLD approval

The intellectual property lobby won a notable victory this week, after governments told ICANN they want it to delay approval of the new top-level domains program until it has more cybersquatting protections.
Some members of the Governmental Advisory Committee appear to have been lobbied hard by the IP community, and have taken its concerns on board more or less wholesale.
The UK representative, Mark Carvell of the Department for Business, Innovation and Skills, was most vocal during a meeting of the GAC and ICANN board here in Cartagena, Colombia yesterday.
He said of the proposed final Applicant Guidebook for new TLDs (which the GAC still pointedly refers to as the “DAG”, for Draft Applicant Guidebook):

Most representations we received came from brand owners, rights holders, they’re the ones being most agitated by this. I think they also recognized the potential opportunities, but the big issue for them was the costs…
The rights protection mechanisms are still not effective enough, that’s what’s coming to us in the Ministry… If you’re really hoping to sign off the guidebook this week, I think that’s something you really ought to reconsider.

Carvell pointed in particular to the proposed Trademark Clearinghouse and Uniform Rapid Suspension policies as needing work – this is essentially the IP lobby’s position also.
His views were supported by Germany, Norway and the Canadian GAC chair, among others.
A repeated refrain was “we’re not there yet”, which prompted ICANN vice-chair Dennis Jennings to push for a definition of “there”. What, in other words, would make the GAC happy enough to go ahead?
The GAC isn’t great when it comes to providing straight answers to those kinds of questions, but Carvell gave it a shot.
He said that currently the GAC does not believe that the benefits of new TLDs outweigh the costs. When it does, that would be the “key turning point”:

When we get to that position, that the benefits for businesses, for the global economy, for opportunities for business, are going to be greater, scaled-up, greater than the costs to brand owners and those who are going to have shell out big-time in order to effectively subsidize, in their view, perhaps subsidize the process.

The US representative, Suzanne Sene, added that “the whole issue is of feeling confident that benefits will outweigh the costs”.
That’s still worryingly free of a measurable benchmark, if you’re an impatient new TLD applicant.
In a further open meeting today, it became clear that the GAC is still putting forth the idea that there could be a “fast-track” or “trial” style TLD application round for “non-controversial” TLDs – presumably meaning TLDs of little interest to defensive trademark holders.
GAC chair Heather Dryden said today that “introducing a conservative first round is the best way to manage risk in the unknown”, an idea that was promptly challenged by TLD applicants including Minds + Machines CEO Antony Van Couvering.
I don’t get the feeling that the GAC has thought the idea through a great deal. In order to be half-way objective, it would presumably require the created of a second, parallel AGB for pre-approving applications. I don’t think the idea has legs.
But do the GAC’s objections mean that new TLD program, currently pencilled in to open the first application round May 30, 2011, will be delayed?
The GAC has not yet submitted its formal Cartagena advice (it should be published tomorrow), but it will presumably reflect the concerns raised over the last few days.
Under ICANN’s bylaws, the organization has to justify any decision to reject GAC advice and then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
European Commission representative Bill Dee invoked that part of the bylaws during yesterday’s meeting, and ICANN chair Peter Dengate Thrush agreed that talks were needed.
Dengate Thrush said he was in favor of a GAC-board meeting over one or two days at some point between now and the San Francisco ICANN meeting next March, to thrash out their differences and Dryden seemed to agree.
If that meeting was held fairly soon, it would not necessarily mean ICANN misses the May 30 deadline.
The current proposed timeline contains a 30-day window between Friday and January 11 in which ICANN staff update the “approved” AGB according to the board’s directions.
There follows an obligatory four-month ICANN outreach and marketing campaign.
Conceivably, although scheduling may be a challenge, if the GAC and board meet and resolve their differences over the next 30 days or so, the May 30 deadline could be workable.
I think it might be quite unlikely that’s going to happen, however.
The ICANN board convenes to discuss and vote on the AGB this Friday. It will be very interesting to see how its resolution is worded, and whether it can both save face and serve the GAC.

New TLDs “not at risk”, but delay not ruled out

ICANN’s program to introduce new top-level domains has not been put at risk by the US government’s recent request for delay, according to both its chairman and chief executive.
Chairman Peter Dengate Thrush and CEO Rod Beckstrom sought to play down the significance of the Department of Commerce letter during a press conference here in Cartagena this afternoon.
Dengate Thrush said the sudden involvement of the US in the new TLD policy was not a surprise, but was “one more factor to take into account” that did not put the program as a whole at risk.
Beckstrom noted that the Commerce letter was submitted to the ongoing public comment period, and would be treated as such, saying “obviously along with other inputs received we will duly consider it”.
Dengate Thrush elaborated, saying ICANN was still considering how to formally respond to the letter.
Because it deals with both Affirmation of Commitments and AGB concerns, it appears that the two threads may be unpicked and dealt with separately.
Both men were obviously more coy about whether the US intervention could delay final approval of the Applicant Guidebook, which the ICANN board will vote on this Friday.
Currently, the plan is to open the first round of applications May 30. But it seems that’s a target, not a promise.
Observing that the AGB continues to stir up passions on both sides of the debate, Dengate Thrush said that it is unlikely that the board will be swayed either way by passion alone.
But if “getting it right” means adding a month or two of delay to the launch date of the program, then that’s what the board will have to do, he said.
A similar sentiment on the constructiveness of comments was put forward by outgoing director Harald Alvestrand during a session yesterday.
He indicated that comments that merely reiterate long-held and previously considered disagreements are unlikely to cause delays, but changed minds based on new information could carry weight.
With the comments of all three directors in mind, it’s probably a bit early to second-guess the board’s Friday decision.
Apparently they are being fed updates on new AGB comments as they are received, so they can be as informed as possible before convening.
My feeling is that a full picture of the decision the board faces is unlikely to emerge for a few days.

Porn group threatens lawsuits over new TLDs

Porn trade group the Free Speech Coalition has added its name to the list of organizations saying that ICANN could be sued over its new top-level domains program.
In her latest letter to ICANN, FSC executive director Diane Duke has made a last-ditch attempt to get the proposed .xxx TLD rejected, and not-so-subtly raises the threat of court action:

ICM Registry promises millions of dollars of income for ICANN, assuming that income is not consumed by the inevitable litigation which ICANN will find itself a party to if the proposal is adopted

But she also writes about lawsuits targeting the new TLD program itself.
ICM’s .xxx application is being handled under the rules established for “sponsored” TLDs in 2003, rather than the rules for gTLDs in the Applicant Guidebook that will be enforced in future.
As such, .xxx is not subject to challenges such as the “morality and public order objections” envisioned by the AGB, unlike potential future applications such as .porn. Duke wrote:

What about those in the adult community who wish to apply for a gTLD? With ICANN’s policy development in regards to “Morality and Public Order” will gTLDs be held to a higher standard than the sTLD? Does ICANN believe that it is not liable for this inequity? Any company prepared to invest the substantial moneys necessary to manage a gTLD will surely take ICANN to court to demand equitable standards for their TLD application.

She goes on to suggest that ICM itself may sue to block such applicants.

Does ICANN really believe that the litigious ICM will sit idly by while a .SEX or .PORN gTLD is introduced? Is ICANN so naive to believe that the purveyor of the “sponsored” TLD, who spent in excess of $10 million to bully its way through ICANN’s processes, will stop its threats of litigation with a mere approval of the sTLD?

Is the FSC privy to the TLD aspirations of others in the adult business? Or is this just a lot of hot air born out of desperation? I guess time will tell.
The FSC becomes the third organization to publicly threaten litigation in order to get what it wants out of ICANN.
As I’ve previously reported, the International Olympic Committee and the BITS financial trade group have already made similar noises.
ICANN expects to set aside $60,000 from every $185,000 TLD application fee to deal with “risks” including the expense of defending itself from lawsuits.
The ICANN board is expected to vote on the .xxx application and the new TLD program next Friday. I expect the number of organizations threatening lawsuits will be in double figures by then.

.CO publishes domain seizure policy

.CO Internet reserves the right to shut down your .co domain name if you’re being naughty.
That’s pretty much what the company has said today with the announcement of its Rapid Domain Compliance Process.

the Rapid Domain Compliance Process gives the .CO Registry the ability to quickly lock, cancel, transfer or take ownership of any .CO domain name, either temporarily or permanently, if the domain name is being used in a manner that appears to threaten the stability, integrity or security of the .CO Registry, or any of its registrar partners – and/or that may put the safety and security of any registrant or user at risk.

While the company has not published full details of how the system works, it seems to be based on security monitoring carried out by Neustar, the registry’s back-end provider, rather than a complaints-driven procedure.
Verboten activities include, as you might expect given .co’s vulnerability to typos, phishing, as well as distributing malware and child pornography.
What’s surprising about this is that .CO Internet is being “proactive” about shutting down sites, rather than waiting to receive complaints to its abuse@ address.
While the announcement is undoubtedly good for the registry’s corporate responsibility image, it also has the potential to backfire horribly if mistakes are made.
Initiatives to block web sites considered security risks almost always lead to false positives.
Even when genuinely criminal sites are taken down, it can lead to loud (if spurious) claims of “censorship”, as we discovered this week with the .com seizures in the US – and they had a court order.
.CO Internet’s policy does not explicitly place piracy or selling counterfeit goods on its naughty list, but it doesn’t rule them out either.
Not to be too cynical, but I give it six months before the first “seized” domain owner cries foul.