Big Content calls for government new gTLD oversight

The music, movie and advertising industries have backed a US move that could see governments getting more control over the approval of new top-level domains.
They’ve urged the National Telecommunications and Information Administration to keep a proposed rule that would force ICANN to show a new gTLD is in the “global public interest” before giving it the nod.
But they are opposed by many other stakeholders who responded to the NTIA’s Further Notice Of Inquiry on the renewal of ICANN’s IANA contract.
The FNOI resulted in about 35 responses, from companies and organizations on five continents.
The most controversial question posed by the NTIA was whether the IANA contract should include this provision:

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.

This was broadly interpreted as a way for governments to have a de facto veto over new gTLD applications, via ICANN’s Governmental Advisory Committee.
The proposed measure has now been supported by the Recording Industry Association of America, the Association of National Advertisers, and the Coalition for Online Accountability, which represents the music and movie industries.
Brand owners want another bite
In his strongly worded response, ANA president Robert Liodice wrote that the new gTLD program “is likely to cause irreparable injury to brand owners”, adding that it supported the NTIA’s proposal.

[It] provides a layer, however thin, of contractual protection that gTLDs will not be deposited to the authoritative root zone without appropriate justification. While the ANA believes that these protections are marginal at best, and that a more secure, safe and permanent solution must be found to prevent the harms to brand owners and consumers described above; nonetheless, “something is better than nothing”

Special interests
The RIAA said in its filing that it “strongly supports” the proposal, on the basis that it thinks .music, if approved as a gTLD, could lead to more online music piracy.

there are no concrete obligations in the latest application guidebook to implement heightened security measures for these types of gTLDs that are focused on particular industries such as record music. Given the the risk that such a gTLD application could pass through the ICANN process without committing to such measures, it should be incumbent on the IANA contractor to document how its entry into the root would meet the “global public interest” standard.

It’s a drum the RIAA, never afraid of making special-interest arguments on matters of internet governance, has been beating for some time.
It stopped short of asking for all existing TLDs (and IP addresses, in the case of peer-to-peer applications) to be banned outright, which would presumably do much more to prevent piracy.
Oh no you ditn’t!
The COA, which includes the RIAA among its members, has the honor of being the first of ICANN’s critics to raise the Peter Dengate Thrush Situation to officially bash the organization.
PDT, as you’ll recall, joined Minds + Machines, likely to be a volume gTLD applicant next year, just a few weeks after he helped push through ICANN’s approval of the gTLD program.
COA counsel Steve Metalitz wrote:

This development tends to confirm COA’s view that “the new gTLD process, like so much of ICANN’s agenda, has been ‘led’ by only a small slice of the private sector, chiefly the registrars and registries who stand to profit from the introduction of new gTLDs.”
…
If a “check and balance” on addition of these new gTLDs to the root was advisable prior to this announcement, it now appears to be indispensable.

Plenty of ICANN stakeholders on both sides of the new gTLD debate have been calling for a review of ICANN’s ethics policies recently, so the COA is far from alone in highlighting the perception problem PDT’s move, and others, may have created.
It looked dodgy, and people noticed.
But on the other hand…
Many responses to the FNOI take the opposing view – saying that the “global public interest” requirements appear to run contrary to IANA’s technical coordination mandate.
IANA’s statement of work, which mandates IANA staff independence from ICANN policy-making, seems like a very odd place to introduce a vague and highly policy-driven oversight check.
Opposition came from the gTLD registry community and likely applicants, as you might expect, as well as from a number of ccTLD operators, which was perhaps less predictable.
A typical response, from the ccNSO, was:

While recognising and supporting the need for ensuring that new gTLDs have consensus support and are consistent with the global public interest, the ccNSO suggests that the IANA contractor’s role should simply be to verify that ICANN has followed the Guidebook process and that all the evaluation criteria (not just the two referred to) have been met.

A number of responses also call for the strict separation of IANA staff from ICANN’s policy-making functions to be relaxed. The way the NTIA’s proposal is currently worded, it’s not clear if IANA’s experts would be able to provide their input to important work.

US resurrects the controversial new TLDs veto

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.