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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.

Governments react to Brussels new TLDs meeting

Kevin Murphy, March 4, 2011, Domain Policy

ICANN’s Governmental Advisory Committee has issued an official Communique following its meeting with the ICANN board on new top-level domains, which wrapped up on Wednesday.

While acknowledging the talks were “sometimes challenging”, the GAC said (pdf) the consultation was useful and should be continued during the San Francisco meeting later this month.

There’s not a great deal to work with in the Communique if you like reading tea leaves, but these paragraphs go some way to negate a view I expressed yesterday that the GAC does not want ICANN to overrule its recommendations. With my emphasis:

While fully respecting the Board’s right not to accept GAC advice, the GAC is obliged to ensure that existing rights, the rule of law and the security and protection of citizens, consumers and businesses, and the principle of national sovereignty for governments are all maintained within the new environment, as well as respect for legitimate interests and sensitivities regarding terms with national, cultural, geographic and religious significance. The GAC is committed to taking whatever time is required to achieving these essential public policy objectives.

The GAC envisions that discussion of the issues involved will continue up to and through the ICANN/GAC meeting in San Francisco in March

That’s not incredibly encouraging language if you’re impatiently awaiting the launch of the new TLDs program and were banking on ICANN putting the GAC’s concerns to bed in SF.

But those who count themselves among the intellectual property constituency can probably take heart that the GAC seems to be still committed to fighting its corner.

The GAC now awaits the publication of ICANN’s official compromise positions, post-Brussels, which it plans to take to its members’ respective “stakeholders”.

Surprise! More new TLDs delay likely

Kevin Murphy, March 3, 2011, Domain Policy

The launch of ICANN’s new top-level domain program looks set to encounter more delays, after international governments said they needed more time for consultation and debate.

Three days of talks between the ICANN board of directors and its Governmental Advisory Committee, which concluded yesterday, resolved many of the GAC’s concerns with new TLDs, but not enough.

Obtaining final closure of these outstanding issues during the San Francisco meeting, March 17, now seems quite unlikely, especially if the GAC gets its way.

The meeting started on an optimistic tone on Monday, degenerated into stalemate on Tuesday, and ran over into an unscheduled third day yesterday, by which point the frustration was audible.

Prior to the meeting, the GAC had provided a “scorecard” that covered 12 areas of new TLD policy where it was still unhappy with ICANN’s positions.

ICANN, in return, had provided matching summary documents that outlined the GAC advice and summarized ICANN’s current thinking on each of the issues.

It became apparent over the first two days of the meeting that the ICANN board was willing to compromise on a number of matters, but that the GAC was unable to do the same, due to its need to consult with ministers and unnamed “advisers”.

One side often seemed to have done more homework than the other, particularly on the issue of trademark protection, where the GAC entered the room as a proxy for the trademark lobby, but without the granular background knowledge needed to answer ICANN’s questions.

Talks disintegrated on Tuesday afternoon, when it became clear that GAC members could not proceed before further consultations with their respective capitals, and that ICANN could not fully address their concerns without further clarifications.

Both sides of the aisle retreated into private discussions for the rest of the day, with the ICANN board later emerging with a list of areas it was prepared to accept GAC advice.

These positions had been more fully fleshed out when the meeting reconvened yesterday morning, but hopes of resolving the discussions by San Francisco appeared to be dashed by the GAC.

The ICANN board decided in January that March 17 will host a so-called “bylaws consultation”, during which ICANN tells the GAC where it has decided to disagree and overrule its advice.

But the GAC unexpectedly revealed yesterday that it does not want the March 17 meeting to have that “bylaws” designation.

A clearly frustrated Peter Dengate Thrush, ICANN’s chairman, asked repeatedly why, in light of the substantial strides forward in Brussels, the GAC had suddenly decided it needed more time:

what we’ve done is clarify and limit the work, so the work we now need to do in San Francisco is reduced and comes in with greater clarity. I don’t understand how more work and more clarity leads to the conclusion that you come to. So you have to help me with this.

The US representative, Suzanne Sene, said the GAC was “surprised” by the bylaws designation.

Actually, if we can go back to the January resolution, a sort of reaction we had at that time was some slight surprise actually that without having seen the GAC scorecard, you were already forecasting that you anticipated not being able to accept the advice contained in the scorecard.

Despite the generally civil tone of the talks, and Dengate Thrush’s opening and closing remarks – in which he said that the meeting was neither “adversarial” nor a “power struggle” – this part of the discussion came across more than most like a pissing contest.

ICANN officially rejecting GAC advice through a bylaws consultation would be unprecedented, and I get the distinct impression that it is something the GAC does not want to happen.

If you’re a government, being overruled by a bunch of DNS policy wonks in California is bad PR.

But if a mutually acceptable compromise is to be made without any advice being rejected, GAC reps need time to take ICANN’s concessions back to their superiors for input, and then to form their own consensus views. Thence the delay arises.

At the end of the meeting, it appeared that talks will be continuing in private in the run-up to the San Francisco meeting, which starts March 13. It also appears that the board and GAC will hold not one but two days of talks during the meeting.

What’s less clear to me is whether ICANN has already agreed that the “bylaws” designation will be removed from the March 17 meeting.

If it does, we’re looking at a few weeks more delays post-SF, while the GAC and board resolve their remaining differences, which could easily impact the planned April 14 publication of the next version of the Applicant Guidebook.

Government domain veto watered down

Kevin Murphy, February 24, 2011, Domain Registries

A US proposal to grant governments the right of veto over new top-level domains has been watered down by ICANN’s Governmental Advisory Committee.

Instead of giving the GAC the ability to block any TLD application on public policy grounds, the GAC’s official position would now allow the ICANN board of directors to make the final decision.

The move means the chances of a .gay application being blocked, to use the most obvious example, are much lower.

The original US position, which was was leaked last month, read:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

If this policy had been adopted, all potentially controversial TLDs could have found themselves pawns of the GAC’s back-room negotiations.

A petition against the US proposal has so far attracted almost 300 signatures.

The newly published official GAC position is based on the language in the US document, but it has been tempered substantially. It now reads:

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.

GAC advice could also suggest measures to mitigate GAC concerns. For example, the GAC could advise that additional scrutiny and conditions should apply to strings that could impact on public trust (e.g. ‘.bank’).

In the event the Board determines to take an action that is not consistent with GAC advice pursuant to Article XI Section 2.1 j and k, the Board will provide a rationale for its decision.

This still gives the GAC a key role in deciding the fate of TLD applications, but it’s one that can be overruled by the ICANN board.

To use the .gay example, the GAC could still advise ICANN that the string has been objected to by a handful of backward nations, but it would be up to the ICANN board to decide whether homophobia is a useful policy to embrace in the DNS.

The GAC proposals, which you can read here, are not policy yet, however.

ICANN and the GAC will meet in Brussels next week to figure out what GAC advice is worth implementing in the new TLDs program.

UPDATE: via @gTLDNews, I’ve discovered that US Department of Commerce assistant secretary Lawrence Strickling recently addressed this topic in a speech.

He seems to believe that ICANN “would have little choice but to reject the application” if the GAC raised a consensus objection. According to his prepared remarks, he said:

We have proposed that the ICANN Board use the already-existing GAC process to allow governments collectively to submit objections to individual applications to top level domains. The GAC already operates on a consensus basis. If the GAC reaches a consensus view to object to a particular application, that view would be submitted to the Board.

The Board, in its role to determine if there is consensus support for a given application (as it is expected to do for all matters coming before it), would have little choice but to reject the application.

Does he have a point?

ICANN has never explicitly rejected GAC advice; the forthcoming San Francisco meeting is probably going to be the first time it does so.

My reading of the ICANN bylaws is that the board is able to reject GAC advice whenever it wants, as long as it provides its rationale for doing so.

IANA contract up for rebid this week?

Kevin Murphy, February 24, 2011, Domain Policy

As ICANN’s leadership heads off to Brussels to kick off two days of unprecedented talks about new top-level domains with international governments, one nation has an ace up its sleeve.

The US government could be just a day or two away from putting the IANA contract, from which ICANN derives much of its power over domain names, up for public discussion and rebidding.

It’s a matter of record that the IANA contract expires at the end of September, and that it will have to be renewed this year if ICANN wants to continue functioning as it is today.

But could the rebid process kick off as early as this week? It seems likely. The timing is right, especially if the US wants to make a statement.

It was February 21, 2006, five years ago this week, that the US Department of Commerce put out a “Request For Information” that led to the current five-year IANA deal with ICANN being signed.

No new RFI has been released yet. But Commerce could choose to pull rank, putting pressure on ICANN to recognize its authority, by issuing such a document this week.

There’s also the possibility that Commerce will issue not an RFI but instead a “Notice Of Inquiry”, a different type of public procurement procedure notice that would kick off not just a rebidding process but a whole lot of public argument about ICANN’s role in internet governance.

Over the years, it has not been unheard of for the US government to occasionally remind ICANN that it has a special relationship with it, particularly before important governance decisions are made.

Most recently, shortly before the ICANN meeting in Cartagena last December, Larry Strickling, assistant secretary at Commerce, warned that the new TLDs program wasn’t shaping up quite how the US expected.

Next week, Commerce’s Suzanne Sene is one of several Governmental Advisory Committee representatives expected to take a lead role in the ICANN-GAC negotiations.

One way or the other, the IANA contract is up for renewal this year, and the process may soon start that could see the function, hypothetically at least, change hands this September.

IANA, for Internet Assigned Numbers Authority, is responsible for the high-level management of IP address allocations, protocol numbers, and top-level domains.

If a gTLD or ccTLD wants to make a change to its DNS records it has to go to IANA, in much the same way as domain owners such as you and me have to go to our registrar.

IANA decides whether to redelegate a ccTLD to a new registry, for example. When .co liberalized recently, it only did so after IANA approved the transfer of the domain to .CO Internet from a Bogota university.

It’s also responsible for making the call on adding new TLDs to the root. Assigning the IANA function to an entity other than ICANN could, for example, add latency to the go-live date of new TLDs.

For the last decade, IANA has been pretty much an ICANN in-house department. It’s not at all clear to me what would happen if IANA was contracted to a third party, especially one that disagreed with ICANN’s decisions.

Both the European Commission and the Internet Architecture Board have recently indicated that they believe the IANA-ICANN relationship could be due a rethink, as Milton Mueller of the Internet Governance Project noted last summer.