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US resurrects the controversial new TLDs veto

Kevin Murphy, June 11, 2011, Domain Policy

The US government intends to give itself greater oversight powers over ICANN’s new top-level domains program, according to a partial draft of the next IANA contract.

The National Telecommunications and Information Administration has proposed what amounts to a Governmental Advisory Committee veto over controversial new TLDs.

The agency last night published a Further Notice Of Inquiry (pdf), which includes a proposed Statement Of Work that would form part of ICANN’s next IANA contract.

The IANA contract, which is up for renewal September 30, gives ICANN many of its key powers over the domain name system’s root database.

The new documents seem to fulfill NTIA assistant secretary Lawrence Strickling’s promise to use the IANA contract “as a vehicle for ensuring more accountability and transparency” at ICANN.

If the new draft provisions are finalized, ICANN would be contractually obliged to hold new gTLD applicants to a higher standard than currently envisaged by the Applicant Guidebook.

The FNOI notes that the US believes (my emphasis):

there is a need to address how all stakeholders, including governments collectively, can operate within the paradigm of a multi-stakeholder environment and be satisfied that their interests are being adequately addressed

The Statement Of Work, under the heading “Responsibility and Respect for Stakeholders” includes new text that addresses this perceived need:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

The current Applicant Guidebook does not require “consensus support from relevant stakeholders” before a new gTLD is approved.

It gives applicants the opportunity to show support from self-defined communities, and it gives communities the right to object to any application, but it does not require consensus.

Earlier this year, the GAC asked ICANN to beef up the Guidebook to make community support or non-objection a proactive requirement for applicants, but ICANN declined to make the change.

The .xxx Factor

The NTIA’s proposed “respect rule” alludes to the approval of .xxx, which the US and other governments believe was both not in the global public interest and unsupported by the porn industry.

Had the rule been applicable in March, ICANN could very well have found itself in breach of the IANA contract, and the NTIA could have been within its rights to block the TLD.

One way to look at this is as a US government safeguard against ICANN’s board of directors overruling GAC objections to new TLDs in future.

The Guidebook currently gives the GAC the right to object to any application for any reason, such as if it believed a proposed string was not supported by a community it purported to represent.

But the Guidebook, reflecting ICANN’s bylaws, also gives ICANN the ability to disagree with GAC advice (including its new TLD objections) and essentially overrule it.

Under the NTIA’s proposed IANA contract language, if ICANN were to overrule a GAC objection to a controversial application, the NTIA would be able to claim that the gTLD was approved without stakeholder consensus, in violation of the IANA contract.

The new gTLD program would have, in essence, a backdoor GAC veto.

While these changes are being made unilaterally by the US, they are certain to be supported by the European Commission and probably other members of the GAC.

Commissioner Neelie Kroes urged Secretary of Commerce Gary Locke to block or delay .xxx back in April, and subsequently met with Strickling to discuss their mutual opposition to the TLD.

Kroes and Strickling seem to agree agree that ICANN should not have signed the .xxx registry contract over the (weak, non-consensus) objection of the GAC.

The FNOI will shortly open for 45 days of public comment, so we’re not likely to know precisely how this is going to play out in the new IANA contract until August.

ICANN is now in the tricky position of trying to figure out how to incorporate this mess into the Guidebook, which it has indicated it plans to approve just over a week from now.

Singapore is going to be very interesting indeed.

Europe asked the US to delay .xxx

Kevin Murphy, May 5, 2011, Domain Policy

European Commissioner for the Digital Agenda Neelie Kroes asked the US Department of Commerce to delay the introduction of the .xxx top-level domain after ICANN approved it, I can reveal.

In an April 6 letter to Secretary of Commerce Gary Locke, a copy of which I have obtained, Kroes expressed dismay with ICANN’s decision, and wrote (my emphasis):

I would therefore consider it necessary for the [ICANN Governmental Advisory Committee] to reflect, at a senior level, on the broader implications of the Board’s decision on .XXX, and to do so before the TLD is introduced into the global Internet. I assume that the United States government would appreciate the opportunity to hear the views of other countries on this important issue, and I very much hope therefore that I can count on your support for such an initiative.

The letter was sent after ICANN had approved .xxx, but nine days before the National Telecommunications and Information Administration instructed VeriSign to add it to the DNS root.

It seems to be an implicit request for the NTIA to delay .xxx’s go-live date to give the Governmental Advisory Committee of ICANN time to regroup and consider how best to continue to oppose the domain.

As I reported this morning, assistant secretary Lawrence Strickling replied to Kroes later in April, agreeing with her in principle but saying that to intervene could do more harm than good.

Kroes objected on the grounds that GAC had “no active support” for .xxx, that national-level blocking of the TLD could threaten internet stability, and that parents will be given a “false sense of security” if they choose to filter .xxx domain names.

She also didn’t buy ICANN’s rationale for its decision, saying it contained “mostly procedural arguments that do not adequately reflect the significant political and cultural sensitivities” created by .xxx.

She additionally noted that:

Most importantly, perhaps, are the wider consequences that we have all have to deal with as a result of this decision. We are both aware of the broader geo-political Internet governance debate that continues regarding the legitimacy of the ICANN model. I am concerned therefore that ICANN’s decision to reject substantive GAC advice – of which there is also an apparent risk in relation to the new generic TLD process – may be detrimental to the multi-stakeholder, private sector-led model which many of us in the international community have been stoutly defending for years.

This seems to be a reference to the longstanding debate over whether the International Telecommunications Union, or another intergovernmental body, may be better suited to overseeing domain name system policy.

In his reply to Kroes, Strickling offered to meet her by teleconference or in person in Brussels, in order to discuss how to proceed.

The fallout from .xxx’s approval may not be over by a long shot.

UPDATE: Read the Kroes letter: Page One, Page Two.

Did Europe ask America to block .xxx?

Kevin Murphy, May 5, 2011, Domain Policy

The European Commission may have asked the US Department of Commerce to block or delay the .xxx top-level domain, it has emerged.

I’ve heard rumors for a few weeks that Neelie Kroes, vice president of the Commission responsible for the digital economy, wrote to Commerce in April, asking it to delay the go-live date for .xxx.

Today, a reply from Lawrence Strickling, assistant secretary at Commerce, has emerged, published on the blog of Polish technology consultant Andrzej Bartosiewicz.

It appears to confirm the rumors. Strickling wrote:

While the Obama Administration does not support ICANN’s decision, we respect the multi-stakeholder Internet governance process and do not think it is in the long-term best interest of the United States or the global Internet community for us unilaterally to reverse the decision.

It’s certainly possible to infer from this that Kroes had asked the US to exercise its unique powers over the domain name system’s root database to block or delay .xxx.

The Kroes letter was evidently sent April 6, about 10 days before the National Telecommunications and Information Administration, part of Commerce, instructed VeriSign to add .xxx to the root.

In his April 20 response, Strickling shared Kroes’ “disappointment” with ICANN’s decision, saying the organization “ignored the clear advice of governments worldwide, including the United States”.

He said the decision “goes against the global public interest and will spur more efforts to block the Internet” and agreed that ICANN “needs to make to engage governments more effectively”.

To that end, Strickly offered to fly to Brussels to meet with Kroes to conduct a “senior level exchange” on how to better work with ICANN.

While it’s probably too late for any of this to affect .xxx, operated by ICM Registry, it is a clear sign that governments are taking a renewed interest in ICANN’s work.

ICANN’s Governmental Advisory Committee issued weak advice on .xxx, noting merely that no governments outright supported it, and that “several” were opposed. The was no consensus.

Because the GAC did not explicitly say “do not approve .xxx”, ICANN was able to rationalize its decision by saying it was not explicitly overruling governmental advice.

At least three countries — Saudi Arabia, India and Kenya — have already indicated that they may block .xxx domains within their borders.

UPDATE: Kroes did in fact ask Commerce to delay .xxx.

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