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GAC new gTLD veto refuses to die

Kevin Murphy, October 31, 2011, Domain Policy

ICANN’s Governmental Advisory Committee seems to be trying yet again to resurrect the government right of veto over controversial new top-level domain applications.

The GAC has proposed changes to the new gTLDs Applicant Guidebook that – at least on the face of it – would remove ICANN’s power to overrule GAC objections.

The changes would also make it much more likely that a gTLD application could be killed off due to the objections of a single nation.

If adopted, they would also make the already unpredictable process of anticipating the result of GAC objections considerably more ambiguous.

The supposedly “complete” Guidebook published by ICANN last month currently includes a warning that the GAC is working on its objecting rules, and that these will be included in future.

The GAC Communique (pdf) issued at the ICANN meeting in Dakar on Friday includes these proposed rules as an annex, and they’re not great if you’re a likely new gTLD applicant.

Consensus objections

If the GAC issues a consensus objection to an application, the Guidebook currently states that a “strong presumption” would be created that the application should fail.

But ICANN’s board would be able to overrule it with a so-called “Bylaws consultation”, the same process it used to approve .xxx earlier this year.

In its proposed revisions, the GAC inexplicably wants to delete the references to the Bylaws consultation.

My understanding is that the GAC is not proposing a change to the Bylaws, so the right of the board to initiate a consultation and overrule a GAC objection would still exist.

But the GAC seems to be asking for applicants to be given far less information about that process than they need, making its own powers appear greater than they are.

This could raise the psychological barrier to initiating a Bylaws consultation and create the perception that a consensus GAC objection always kills an application, which may not be the case.

The Dakar communique defines GAC consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”, which creates its own set of worries.

Non-consensus objections

A much bigger change is proposed to the way ICANN handles GAC “concerns” about an application.

This is GAC code for a non-consensus objection, where one or more governments has a problem with an application but the GAC as a whole cannot agree to object.

This is the objection mechanism that will very likely capture applications for gTLDs such as .gay, but it could basically cover any string for any reason.

Using the Guidebook’s current wording, there would be no presumption that this kind of application should be rejected. It would be in ICANN’s discretion to initiate a Bylaws consultation.

But the GAC wants something that sounds rather a lot like a Bylaws consultation made mandatory.

“The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns,” it says. “The ICANN Board is also expected to provide a rationale for its decision.”

This basically means that an application for .gay that was objected to by just two or three governments would have to undergo the pretty much the same level of scrutiny as .xxx did.

The political pressure on ICANN to kill the application would be much more intense than it would under the Guidebook’s current rules.

Here’s a table of the GAC’s proposed changes.

Applicant GuidebookGAC Proposed Text
I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for ICANN that the application should not be approved. In the event that the ICANN Board determines to approve an application despite the consensus advice of the GAC,
pursuant to the ICANN Bylaws, the GAC and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. In the event the Board determines not to accept the GAC Advice, the Board will provide a rationale for its decision.
l. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved.
II. The GAC provides advice that indicates that some governments are concerned about a particular application. Such advice will be passed on to the applicant but will not create the presumption that the application should be denied, and such advice would not require the Board to undertake the process for attempting to find a mutually acceptable solution with the GAC should the application be approved. Note that in any case, that the Board will take seriously any other advice that GAC might provide and will consider
entering into dialogue with the GAC to understand the
scope of the concerns expressed.
ll. The GAC advises ICANN that there are concerns about a particular application "dot-example". The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.
II. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed. If there is a remediation method available in the Guidebook (such as securing government approval), that action may be taken. However, material amendments to applications are generally prohibited and if there is no remediation method available, the application will not go forward and the applicant can re-apply in the second round.lll. The GAC advises ICANN that a particular application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed unless there is a remediation method available in the Guidebook (such as securing one or more government’s approval) that is implemented by the applicant.

In summary, the GAC wants to give more weight to fringe objections and to make the whole process potentially much more confusing for applicants.

I can’t see ICANN sensibly adding the GAC’s text to the Guidebook without at the very least some edits for clarity.

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ICM extends .xxx sunrise

Kevin Murphy, October 28, 2011, Domain Registries

ICM Registry, which has evidently seen a last-minute rush of defensive registration applications this week, has extended its sunrise period until Monday.

It had been due to end at 4pm UTC today.

The company just issued this statement:

Due to unprecedented demand in the last week and following several requests from major registrars for more processing time for their backlogs, ICM Registry has extended the Sunrise A and Sunrise B registration periods for an additional three days to conclude Monday, October 31, 2011 at 16:00 UTC (Noon ET). This extension provides prospective registrants valuable time to secure their domains and protect their brands.

Sunrise A is for people in the porn business, B is the “block” for companies outside the “biz” that want to make sure their brands do not become associated with porn.

Guess which has been most popular. (It’s B.)

ICM originally said it expected 10,000 sunrise registrations, but it blew through that estimate weeks ago. The last published count was 42,000, on Monday, with “thousands” coming in daily,

If it hits 70,000 by Monday I will not be surprised.

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Today’s new gTLDs decisions in full

Kevin Murphy, October 28, 2011, Domain Policy

ICANN’s board of directors passed two resolutions relating to new generic top-level domains at is meeting in Dakar, Senegal today.

While neither is particularly Earth-shattering, they are notable and therefore reproduced here in full.

The first relates to financial support for new gTLD applicants from developing nations.

ICANN has not figured out how to implement the recommendations of the JAS working group yet, but it hopes to do so before the end of the year.

Joint Applicant Support

Whereas, the Board has received the Final Report of the Joint Applicant Support Working Group (JAS WG), appreciates the work of the JAS WG created in April 2010 by the ALAC and GNSO, and thanks the entire ICANN community for the constructive dialogue leading up to and during this week in Dakar.

Whereas, the Board expresses its appreciation to the GAC and ALAC for their joint statement on the JAS WG report.

Whereas, the Board is committed to ensuring that the implementation of a support program for deserving applicants will be done in a manner to enable those applicants to effectively participate in and benefit from the first round of the New gTLD Program.

Resolved (2011.10.28.21), the Board takes the JAS WG Final Report seriously, and a working group of Board members has been convened to oversee the scoping and implementation of the recommendations arising out of that Report, as feasible.

Resolved (2011.10.28.22), the President and CEO is expected to commence work immediately and provide a detailed plan for consideration. If the plan is complete sufficiently in advance of its next scheduled Board Meeting set for 8 December 2011, the Board will seek to add a special meeting to its schedule prior to that date.

Rationale for Resolutions 2011.10.28.21 – 2011.10.28.22

In Singapore, the Board resolved that it would consider the report and recommendations of the Joint Applicant Support Working Group. The Board takes seriously the assertions of the ICANN community that applicant support will encourage diverse participation in the New gTLD Program and promote ICANN’s goal of broadening the scope of the multi-stakeholder model. In its deliberations, the Board is balancing its fiscal responsibility in launching the New gTLD Program, the desire to provide a support program in the first round, and the time required to obtain additional funding. While the Board solution is not complete, there is a vision for accomplishing each of those three goals.  As required for assessment within the Affirmation of Commitments, there is no security and stability impact on the DNS. Part of the further work required through this resolution will assess the affect of this work; however there is no affect on ICANN’s fiscal resources as a result of this immediate action.

The second resolution, which caused considerable debate among board members, relates to funding of the much-criticized new gTLDs communications campaign.

The board approved an additional $900,000 for outreach, much of which will apparently go into the pockets of newly hired PR firm Burson-Marsteller.

Budget Request – New gTLD Communications Plan

Whereas, at the Paris ICANN meeting in 2008, the Board adopted the GNSO policy recommendations to introduce new Generic Top-Level Domains (new gTLDs), including at least a four-month communications period to raise global awareness.

Whereas, the Draft New gTLD Communications Plan (link) describes the global outreach and education activities that will be conducted in each of the ICANN geographic regions.

Whereas, the FY 12 budget allocates US $805,000 to fund this effort.

Whereas, planning and subsequent execution of the Communications Plan has indicated the need for a full service global public relations firm to ensure ICANN effectiveness in this effort.

Whereas, funds can be re-allocated in the adopted ICANN Budget to support the augmented communications effort without materially affecting performance in other areas.

Whereas, at its 22 October 2011 meeting the Board Finance Committee approved a recommendation that the Board approve an additional expenditure of US$900,000 for the execution of the Communications Plan.

Resolved (2011.10.28.23), the Board approves an additional expenditure of up to US $900,000 for the remaining three months of the Communications Plan, to be used for the retention of Burson-Marsteller, a global public relations firm, to work towards the goal of raising global awareness of new Generic Top Levels Domains consistent with the terms of the Communications Plan.

Resolved (2011.10.28.24), the Board authorizes the President and CEO to enter into any contracts necessary to fulfill the objectives of the New gTLD Communications Plan to the extent those contracts do not exceed the budget for the Communications Plan.

Rationale for Resolution 2011.10.28.23 – 2011.10.28.24

The budget for the Board-mandated new gTLD communications program is currently US $805,000. That figure was based on an earlier draft communications plan.

The current plan is more expansive and ambitious. It is based on the premise that every potential applicant should be aware of the program’s opportunities and risks, and thus it is aimed at building maximum awareness through multiple communications channels. It also focuses more strongly on developing countries.

The Plan is built on four principal efforts:

1. Regional “road shows” and public events;
2. Earned media – broadcast, online and print;
3. Social media; and
4. Global information through paid advertising, and multiplying these efforts through the community.

The New gTLD Communications Plan is neutral in its presentation. ICANN is not promoting applications for new gTLDs or advocating that any organization apply for one. Rather, ICANN is providing essential information and raising awareness of the New gTLD Program.

The current efforts limited in scope. ICANN has determined that retaining a full-service worldwide public relations firm to further coordinate ICANN’s efforts will assure that ICANN is able to attain the goal of the New gTLD Communications Plan.

ICANN has identified a well-respected global public relations firm, Burson-Marsteller, that can provide a broad range of awareness-raising services. ICANN will have access to the firm’s extensive network with an established presence in 91 countries, over 40 of them developing nations. These local and regional assets are invaluable. ICANN also will benefit from the firm’s expertise in digital and social media. ICANN will retain editorial control over all implementation aspects of the New gTLD Communications Plan.

Securing a global public relations firm of this caliber will contribute greatly toward ensuring success of the New gTLD Communications Plan. And as the first deliverable of the New gTLD Program, success of the New gTLD Communications Plan is critical.

Approval of this resolution will positively affect ICANN’s accountability and transparency by globally maximizing the spread of information about ICANN itself. This action will have no effect on the security, stability and resiliency of the domain name system.

The New gTLD Communications Plan will be conducted within the existing ICANN budget. This effort will be funded out of contingency funds, so the expenditure will not affect ICANN’s ability to perform and accomplish its other goals and objectives.

More later.

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dotFree settles Microsoft botnet lawsuit

Kevin Murphy, October 28, 2011, Domain Registries

One of the companies that plans to apply for the .free top-level domain next year has settled a lawsuit filed by Microsoft over claims it was involved in running the Kelihos botnet.

The suit, filed in late September, had alleged that Czech-based dotFree Group and its CEO, Dominique Piatti, were behind dozens of domains used to spread malware.

dotFree already runs the free .cz.cc subdomain service, which isn’t what you’d call a trustworthy namespace. The whole .cz.cc zone appears to be currently banned from Google’s index.

This week, Microsoft has dropped its claims against the company and Piatti, saying it will instead work with the company to try to help clean up the free .cz.cc space.

Microsoft said on its official blog:

Since the Kelihos takedown, we have been in talks with Mr. Piatti and dotFREE Group s.r.o. and, after reviewing the evidence voluntarily provided by Mr. Piatti, we believe that neither he nor his business were involved in controlling the subdomains used to host the Kelihos botnet. Rather, the controllers of the Kelihos botnet leveraged the subdomain services offered by Mr. Piatti’s cz.cc domain.

As part of the settlement, Mr. Piatti has agreed to delete or transfer all the subdomains used to either operate the Kelihos botnet, or used for other illegitimate purposes, to Microsoft. Additionally, Mr. Piatti and dotFREE Group have agreed to work with us to create and implement best practices to prevent abuse of free subdomains and, ultimately, apply these same best practices to establish a secure free Top Level Domain as they expand their business going forward.

Expect this issue to be raised if and when .free becomes a contested gTLD application.

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New gTLD risk fund rubbished by .brand advocate

Kevin Murphy, October 27, 2011, Domain Policy

Proposals to change the way new top-level domains are insured against failure will put the whole new gTLD program at risk, according to an intellectual property lawyer.

Speaking at a session at the ICANN meeting in Dakar today, Paul McGrady of the law firm Greenberg Traurig said the changes could even lead to a lawsuit that would delay the January 2012 launch of the program by at least a couple of years.

The debate was sparked by a proposal from the registries to restructure the Continued Operations Instrument, a financial backup designed to fund gTLD operations after their businesses fail.

ICANN currently plans to ask each applicant to submit a COI sufficient to cover the cost of running their own gTLD for three years in the form of cash in escrow or a letter of credit.

But the registry proposal calls instead for a Continued Operations Fund that would pool the risk between applicants, with each applicant paying just $50,000 up-front.

While the COI implicitly assumes that all new gTLDs could crash and burn, the COF assumes that only a small number of businesses will fail, as I reported earlier this month.

But McGrady, apparently speaking for the Intellectual Property Constituency, gave a startlingly different interpretation of the COF, from the “.brand” applicant perspective.

A .brand applicant can secure a letter of credit sufficient to cover the COI for as little as $2,000, he said. A $50,000 payment to the COF would dramatically increase its costs, he said.

“That money is taken from the .brand applicant and given to the shaky start-ups that shouldn’t be applying anyway,” he said. “It’s a redistribution of wealth.”

“If you can’t meet the [Applicant] Guidebook’s current requirements, you are dramatically under-capitalized,” he said. “Don’t apply.”

He said that if ICANN decides to add the $50,000 cost before January, it’s likely that some of those brands that oppose the program anyway will use it as an excuse to sue for delay.

“If the ICANN community would like to tee up for a litigation issue which could bring round one to a halt before it opens, this is it,” he said.

He further said that any back-end registry services providers targeting .brand clients had better distance themselves from the COF proposal if they want to get that business.

“Anyone in the room with a vested interested in this process moving forward, this is not the issue to back,” he said.

While the specific proposal up for debate was drafted by the Public Interest Registry and Afilias, the concept of a COF is has the backing of the ICANN registry stakeholder group.

As far as FUD goes, McGrady’s presentation was pretty blatant stuff, but that does not necessarily mean it’s not true.

His tone seemed to cause some consternation in the room.

Likely applicant Ron Andruff said that McGrady was employing a “scare tactic about how things might get delayed because big corporations don’t want to park money”.

Several others pointed out that smaller community applicants and applicants from certain countries may be unable to secure a letter of credit as easily as a large brand applicant.

Those applicants would have to put cash in escrow, tying it up and making it harder to market their gTLDs… thus leading to a greater chance of failure.

But McGrady stuck to his “redistribution of wealth” line.

“What we’re talking about is a last-minute change to the Guidebook to benefit applicants that don’t have sufficient funds,” he said.

He was not alone speaking out against the COF idea.

Richard Tindal of likely gTLD applicant Donuts said that many projections about new gTLDs are being made by a small number of registries that are making similar assumptions.

If these assumptions turn out to be flawed, the risk of gTLD failures could be bigger than expected.

“If a hurricane hits a house in the street, it’s going to hit all the houses in the street,” he said.

The COF/COI debate is open for public comment until December 2.

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