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The Amazon is burning. Is this good news for .amazon?

Kevin Murphy, August 26, 2019, Domain Policy

With the tide of international opinion turning against Brazil due to the ongoing forest fires in the Amazon, could we see governments change their tune when it comes to Amazon’s application for .amazon?

A much higher number of forest fires than usual are currently burning in the region, largely in Brazil, which critics led by environmentalists and French president Emmanuel Macron have blamed on relaxed “slash and burn” farming policies introduced by new Brazilian president Jair Bolsonaro.

The rain forest is an important carbon sink, said to provide 20% of the world’s oxygen. The more of it is lost, the harder it is to tackle climate change, the argument goes.

It’s been an important topic at the Macro-hosted G7 summit, which ends today. Even the bloody Pope has weighed in.

Arguably, the stakes are nothing less than the survival of human civilization and life on Earth itself.

And this is a story about domain names. Sorry. This is a blog about domain names. My hands are tied.

Amazon the company has been fighting governments over its application for .amazon, along with the Chinese and Japanese translations, for over six years.

ICANN’s Governmental Advisory Committee was responsible for killing off .amazon in 2013 after it decided by consensus that Amazon’s application should not proceed.

That decision was only reached after the US, under the Obama administration, decided to abstain from discussions.

The US had been protecting Amazon by blocking GAC consensus, but changed its tune partly in order to throw a bone to world leaders, including then-president of Brazil Dilma Rousseff, who were outraged by CIA analyst Edward Snowden’s revelations of widespread US digital espionage.

After ICANN dutifully followed the GAC advice and rejected Amazon’s gTLD applications, Amazon appealed via the Independent Review Process and, in 2017, won.

The IRP panel ruled that the GAC’s objection had no clear grounding in public policy that could be gleaned from the record. It told ICANN to re-open the applications and evaluate them objectively.

Ever since then, the GAC’s advice to ICANN has been that it must “facilitate a mutually acceptable solution” between Amazon and the eight nations of the Amazon Cooperation Treaty Organization.

ICANN has been doing just that, or at least attempting to, for the last couple of years.

But the two parties failed to come to an agreement. ACTO wants to have essential veto power over Amazon’s use of .amazon, whereas Amazon is only prepared to offer lists of protected names, a minority position in any policy-setting body, and some sweeteners.

In May this year, ICANN’s board of directors voted to move .amazon along towards delegation, noting that there was “no public policy reason” why it should not.

In June, the government of Colombia filed a Request for Reconsideration with ICANN, demanding it reevaluate that decision.

The RfR was considered by ICANN’s Board Accountability Measures Committee at its meeting August 14, but its recommendation has not yet been published. I’m expecting it to be posted this week.

There’s still opportunity for the GAC to cause mischief, or act as a further delay on .amazon, but will it, in light of some country’s outrage over Brazil’s policy over the rain forest?

One could argue that if the nation that has the largest chunk of Amazon within its borders seems to have little regard to its international importance, why should its claim to ownership of the string “amazon” get priority over a big brand that has offered to protect culturally significant words and phrases?

Remember, as the example of the US in 2012/13 shows us, it only takes one government to block a GAC consensus. If Brazil or Peru continue to pursue their anti-Amazon path, could France throw a spanner in the works, smoothing .amazon’s road to delegation?

Anything’s possible, I suppose, but my feeling is that most governments back ACTO’s position largely because they’re worried that they could find themselves in a similar position of having to fight off an application for a “geographic” string in the next gTLD application round.

France slams ICANN after GAC rejects special treatment for .wine

Kevin Murphy, June 26, 2014, Domain Policy

France says that “ICANN is no longer the appropriate forum to discuss Internet governance” after it failed to win support from other governments for special protections in .wine and .vin gTLDs.

The government came to ICANN 50 in London this week apparently determined to secure a Governmental Advisory Committee consensus that .wine should have protection for geographic indicators.

GIs are protected geographic terms such as “Champagne”, “Parma” and “Cheddar” that link a product to the region in which it is traditionally produced. France has a lot of wine-related GIs.

But the GAC — as I think everyone, including France, expected — failed to come to an agreement.

The GAC’s London communique (pdf) reads:

There was further discussion on the issue of .wine/.vin, but no agreement was reached because of the sensitive nature of the matter.

The matter of .wine and .vin was raised at the High Level Governmental Meeting, where some members expressed concerns in terms of ICANN’s accountability and public policy. These concerns are not shared by all members.

In the absence of a consensus GAC objection, the most likely outcome is ICANN pushing the competing .vin/.wine applicants along the contention resolution process to auction.

France has won a lot of media coverage this week, throwing out allegations such as the idea that ICANN is “opaque”, and questioning ICANN’s ability to do its job properly.

Quizzed about France’s statements at a press conference on Monday, ICANN CEO Fadi Chehade pointed out that studies have show ICANN is extremely transparent and wondered aloud whether France’s position is the one where you “scream that everything’s broken when you don’t get what you want”.

Today’s French statement is a little, but not much, more relaxed. Translated, it partially reads:

Current procedures at ICANN highlight its inability to take into account the legitimate concerns of States and to ensure common resource management in the direction of respect for cultural diversity and balance of interests in economic sectors that its decisions affect.

Accordingly, it will propose to its European partners and all other stakeholders to reflect on the future of Internet governance based on transparency, accountability, and equal stakeholders. Commission also believes that ICANN is no longer the appropriate forum to discuss Internet governance.

The government did, however, reiterate its support for the notion of multi-stakeholder internet governance.

French wine producers were less diplomatic. We received a statement from ANEV, the Association Nationale des Elus de la Vigne et du vin, this afternoon that called upon the French government and European Union to block all domain names that use GIs in violation of local law.

Personally, I don’t think that’s going to happen.

During an ICANN session on Monday, the French GAC rep used the .wine controversy to call for the creation of a “General Assembly” at ICANN.

I’m working from the transcript, which has been translated by ICANN into English, and some media reports, but it seems that France is thinking along the lines of an ITU-style, voting-based rather than consensus-based, approach to generating GAC advice. I may be wrong.

During Monday’s press conference, Chehade did not oppose France’s suggestions, though he was careful to point out that it would have to be approved by the whole ICANN community first (implicitly a tall order).

A vote-based GAC could well favor European Union countries, given the make-up of the GAC right now.

On the .wine issue, it’s mainly a few Anglophone nations such as the US, Canada and Australia that oppose extra GI protections.

These nations point out that the GI issue is not settled international law and is best dealt with in venues such as the World Trade Organization and the World Intellectual Property Organization.

France actually says the same thing.

But while France says that ICANN’s refusal to act on .wine jeopardizes GI talks in other fora, its opponents claim that if ICANN were to act it would jeopardize the same talks.

Chehade said during the Monday press conference that France had not yet run out of ways to challenge ICANN’s position on this, so the story probably isn’t over yet.

Would an ICANN ethics policy break the law?

Kevin Murphy, October 3, 2011, Domain Policy

Calls for a new ethics policy to prevent a “revolving door” between ICANN and the domain name industry stepped up today, with the Association of National Advertisers entering the debate.

But would such a policy be illegal in ICANN’s home state of California?

The ANA and others wrote to ICANN today, in response to a public comment period on the question of whether ICANN should revise its conflicts of interest policy.

ICANN had asked whether the policy should be changed in order to let its board of directors vote to give themselves a salary. They’re currently all unpaid except the chair.

But the responses so far have instead largely focused on the perceived need to stop directors (and to a lesser extent staff) from taking lucrative industry jobs after they quit.

That was perhaps inevitable given the recent mainstream media coverage of former ICANN chair Peter Dengate Thrush, who took a high-paying job with new gTLD applicant Minds + Machines just a few weeks after helping to push through approval of the gTLD program.

The ANA’s president, Bob Liodice, wrote:

There is, at a minimum, legitimate reason for concern that the lack of adequate conflict of interest policies have led to the development of a growing perception that Mr. Thrush (and perhaps other senior staff who recently have left ICANN) may have let future career prospects influence their official duties.

(The other senior staffer he refers to could only be Craig Schwartz, the former chief gTLD registry liaison, who quit ICANN to join a likely .bank applicant in June.

While there are good reasons that Dengate Thrush’s move looks extremely fishy to outsiders, I’ve yet to hear any compelling arguments that Schwartz, who I don’t think had any high-level policy-making power anyway, did anything wrong.)

The ANA is of course the ring-leader of the ongoing campaign to get ICANN to rethink the new gTLD program in its entirety.

Liodice’s letter goes on to outline a number of suggestions, posed as questions, as to how ICANN could improve its conflict of interest policy, such as:

should ICANN consider reasonable restrictions or a moratorium on post‐service employment of ICANN staff by, or the contracting of such staff members with, parties under contract to ICANN, or whose businesses are materially affected by any decision made by the Board during the staff member’s tenure?

In other words: should ICANN staff be banned from joining registrars and registries after they leave?

In two other letters to ICANN today, Coalition for Online Accountability, International Trademark Association and American IP Law Association (collectively) and the French government make similar calls for future employment restrictions, albeit only for ICANN directors rather than staff.

But here’s another question: if the community asked ICANN to institute a revolving-door prevention policy, could it legally do so? A bit of digging suggests it might be tough.

According to the minutes of an August 15 meeting of ICANN’s Board Governance Committee:

The BGC discussed that as a private sector organization, ICANN is limited in its ability to place restrictions on future employment, though there are many things that ICANN can do to address these concerns, such as continued strict adherence and enforcement of confidentiality provisions.

The matter was also discussed by the full board at its retreat last month, and is on the agenda for the public meeting in Dakar, Senegal, at the end of October.

While ICANN does have pseudo-regulatory power (all enforced through contract) it is at the end of the day a California corporation, which is bound by California law.

And in California, it may not be legal to unreasonably restrict employees’ future job opportunities.

I’m not a lawyer, and this may not be applicable to ICANN for any number of reasons, but consider how California law deals with so-called “non-compete clauses” in employment contracts.

The text “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void” is on the California statute books.

And in 2008, the California Supreme Court interpreted this rather strictly, ruling that “non-competition agreements are invalid under section 16600 in California even if narrowly drawn”.

So could ICANN legally prevent staff or directors from jumping into the for-profit sector when they please? Is there any point in the community even debating the subject?

At this point, any members of the California Bar reading this are welcome to throw their $0.02 into the comments section below.