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Demand Media slates GAC’s new gTLDs demands

Kevin Murphy, May 9, 2013, Domain Policy

Demand Media has become the first new gTLD applicant to put its head above the parapet and tell ICANN that its latest batch of Governmental Advisory Committee advice is unworkable.

While its comment on the GAC’s Beijing communique is very diplomatically worded, it’s obvious that Demand reckons most of the “safeguard” advice it contains would be difficult, if not impossible, to implement.

The company has urged ICANN to refuse to adopt the advice, saying:

the spirit and actual letter of the GAC Advice related to these additional safeguards comes in a manner and form that is completely antithetical and contrary to ICANN’s bottom-up, multi-stakeholder, consensus-driven policy development process. Because the proposed safeguards, if implemented, would effectively change how new gTLDs are managed, sold, distributed, registered, operated, and used in the marketplace, the GAC Advice is tantamount to making “top-down,” dictatorial, non-consensus, policy which undermines the entire ICANN model. If ICANN chose to adopt any one of these three safeguards, ICANN itself would lose all legitimacy.

Demand seems to agree with many of the points raised in this DI post from a few weeks ago related to the GAC’s demand that hundreds of new gTLD registries should compel their registrants to stick to data security standards when they handle sensitive financial or healthcare data.

The GAC’s advice is extremely broad here and pays scant attention to the innumerable implementation questions raised. As such, Demand says in its comment (filed by applying subsidiary United TLD Holdco):

United TLD believes applicable laws and recognized industry standards should be developed and implemented by appropriate legislative, law enforcement and industry expert bodies and should not be developed by the registry operator.

It also takes issue with the GAC’s demand for registry operators to “establish a working relationship with the relevant regulatory body including developing a strategy to mitigate abuse.”

The company points out that many TLDs listed in the Beijing communique will have multiple uses, and even if there is a regulatory body for a subsection of registrants, it may not cover all.

For example, should a software engineer (an unregulated profession) have to agree to abide by rules developed for civil engineers when they register a .engineer domain name?

it would be inappropriate, and impossible, to find a “relevant regulatory body” with whom to establish a relationship related to the use of .ENGINEER. Additionally, what if the relevant regulatory body simply declined to work with a registry operator or does not respond to requests for collaboration?

The Demand comment is full of examples of problems such as this.

In broader terms, however, the registrar and applicant is utterly opposed to the GAC’s insistence that “certain” unspecified gTLDs representing regulated sectors should be forced, in effect, to transform into tightly restricted sponsored gTLDs.

The GAC wants these applicants to forge tight links with regulatory and self-regulatory bodies and vet each registrant’s credentials before allowing domains to be registered.

Demand said:

applicants, including United TLD, submitted their new gTLD applications believing that that they would be operating, managing and distributing generic TLDs. These three Safeguards completely change the nature of the new TLDs from being generic and widely available, to being “sponsored” TLDs restricted only to those individuals who must prove their status or credentials entitling them to register domain names with certain extensions. These three Safeguards are patently adverse to the core purpose of the new gTLD program and ICANN’s mission generally which is to promote consumer choice and competition.

While Demand is the first application to slam the GAC advice as a whole (a few others have submitted preliminary comments on specific subsets of advice), I’m certain it won’t be the last.

That said, .secure applicant Artemis Internet submitted what is possibly the most amusing example of “sucking up” I’ve ever seen in an ICANN public comment period.

The company actually requests to be added to the list of strings covered by the GAC advice on the grounds that its application was so gosh-darn wonderful it already planned to do all that stuff anyway.

I expect, by the time the comment period closes next Tuesday the prevailing mood from applicants will be more Demand and less Artemis.

Could this be ICANN’s most important public comment period ever?

Kevin Murphy, April 24, 2013, Domain Policy

How much power should governments have over the domain name industry? Should the industry be held responsible for the actions of its customers? Are domain names the way to stop crime?

These are some of the questions likely to be addressed during ICANN’s latest public comment period, which could prove to be one of the most important consultations it’s ever launched.

ICANN wants comments on governmental advice issued during the Beijing meeting two weeks ago, which sought to impose a broad regulatory environment on new gTLD registries.

According to this morning’s announcement:

[ICANN’s Board New gTLD Committee] has directed staff to solicit comment on how it should address one element of the advice: safeguards applicable to broad categories of New gTLD strings. Accordingly, ICANN seeks public input on how the Board New gTLD Committee should address section IV.1.b and Annex I of the GAC Beijing Communiqué.

Annex 1 of the Beijing communique is the bit in which the GAC told ICANN to impose sweeping new rules on new gTLD registries. It’s only a few pages long, but that’s because it contains a shocking lack of detail.

For all new gTLDs, the GAC wants ICANN to:

  • Apply a set of abuse “safeguards” to all new gTLDs, including mandatory annual Whois accuracy audits. Domain names found to use false Whois would be suspended by the registry.
  • Force all registrants in new gTLDs to provide an abuse point of contact to the registry.
  • Make registries responsible for adjudicating complaints about copyright infringement and counterfeiting, suspending domains if they decide (how, it’s not clear) that laws are being broken.

For the 385 gTLD applications deemed to represent “regulated or professional sectors”, the GAC wants ICANN to:

  • Reject the application unless the applicant partners with an appropriate industry trade association. New gTLDs such as .game, .broadway and .town could only be approved if they had backing from “relevant regulatory, or industry self-­regulatory, bodies” for gaming, theater and towns, for example.
  • Make the registries responsible for policing registrants’ compliance with financial and healthcare data security laws.
  • Force registries to include references to organic farming legislation in their terms of service.

For gTLD strings related to “financial, gambling, professional services, environmental, health and fitness, corporate identifiers, and charity” the GAC wants even more restrictions.

Essentially, it’s told ICANN that a subset of the strings in those categories (it didn’t say which ones) should only be operated as restricted gTLDs, a little like .museum or .post are today.

It probably wouldn’t be possible for a poker hobbyist to register a .poker domain in order to blog about his victories and defeats, for example, unless they had a license from an appropriate gambling regulator.

Attempting to impose last-minute rules on applicants appears to reverse one of the GAC’s longstanding GAC Principles Regarding New gTLDs, dating back to 2007, which states:

All applicants for a new gTLD registry should therefore be evaluated against transparent and predictable criteria, fully available to the applicants prior to the initiation of the process. Normally, therefore, no subsequent addition selection criteria should be used in the selection process.

The Beijing communique also asks ICANN to reconsider allowing singular and plural versions of the same string to coexist, and says “closed generic” or “exclusive access” single-registrant gTLDs must serve a public interest purpose or be rejected.

There’s a lot of stuff to think about in the communique.

But ICANN’s post-Beijing problem isn’t whether it should accept the GAC’s advice, it’s to first figure out what the hell the GAC is actually asking for.

Take this bit, for example:

Registry operators will require that registrants who collect and maintain sensitive health and financial data implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law and recognized industry standards.

This one paragraph alone raises a whole bunch of extremely difficult questions.

How would registry operators identify which registrants are handling sensitive data? If .book has a million domains, how would the registry know which are used to sell books and which are just reviewing them?

How would the registries “require” adherence to data security laws? Is it just a case of paying lip service in the terms of service, or do they have to be more proactive?

What’s a “reasonable and appropriate security measure”? Should a .doctor site that provides access to healthcare information have the same security as one that merely allows appointments to be booked? What about a .diet site that knows how fat all of its users are? How would a registry differentiate between these use cases?

Which industry standards are applicable here? Which data security laws? From which country? What happens if the laws of different nations conflict with each other?

If a registry receives a complaint about non-compliance, how on earth does the registry figure out if the complaint is valid? Do they have to audit the registrant’s security practices?

What should happen if a registrant does not comply with these laws or industry standards? Does its domain get taken away? One would assume so, but the GAC, for some reason, doesn’t say.

The ICANN community could spend five years discussing these questions, trying to build a framework for registries to police security compliance, and not come to any consensus.

The easier answer is of course: it’s none of ICANN’s business.

Is it ICANN’s job to govern how web sites securely store and transmit healthcare data? I sure hope not.

And those are just the questions raised by one paragraph.

The Beijing communique as a whole is a perplexing, frustrating mess of ideas that seems to have been hastily cobbled together from a governmental wish-list of fixes for perceived problems with the internet.

It lacks detail, which suggests it lacks thought, and it’s going to take a long time for the community to discuss, even as many affected new gTLD applicants thought they were entering the home stretch.

Underlying everything, however, is the question of how much weight the GAC’s advice — which is almost always less informed than advice from any other stakeholder group — should carry.

ICANN CEO Fadi Chehade and chair Steve Crocker have made many references recently to the “multi-stakeholder model” actually being the “multi-equal-stakeholder model”.

This new comment period is the first opportunity the other stakeholders get to put this to the test.

ICANN starts the clock on new gTLD GAC advice

Kevin Murphy, April 19, 2013, Domain Policy

The over 500 new gTLD applicants affected by Governmental Advisory Committee advice on their bids have 21 days from today to file their responses officially with ICANN.

But there’s still some confusion about who exactly is expected to file responses, given the extraordinary breadth of the advice contained within the GAC’s Beijing communique.

ICANN today put applicants on formal notice of the publication of the Beijing communique, which actually came out a week ago, and said applicants have until May 10 to respond to the ICANN board.

What it didn’t do is say which applicants are affected. Technically, it could be all of them.

The Beijing communique contains six “safeguards” related to things such as abuse and security, which it said “should apply to all new gTLDs”.

On a more granular level, the GAC has called out, we believe, 517 individual applications that should not be approved or that should not be approved unless they do what the GAC says.

The Beijing communique, it could be argued, throws the whole new gTLD program into disarray, and this is the first chance applicants will get to put their views directly in writing to the ICANN board.

GAC threat looms over ICANN Beijing

Kevin Murphy, April 8, 2013, Domain Policy

How the Governmental Advisory Committee handles its advice on new gTLD applications seems to be a big worry at the ICANN public meeting in Beijing this week.

During a session yesterday, new gTLD program vice president Christine Willett was peppered with questions about the approval process going forward, many of which related to the GAC.

There’s also a lot of gossiping about which applications the GAC is thinking about delivering the kiss of death to, and what its advice will mean to the overall program timetable.

DI is not attending the Beijing meeting in person, but here’s what I’ve learned from remote participation and talking to attendees:

Confusion over the GAC Advice standard

Judging by interactions during Willett’s session, there may be a little bit of confusion about whether GAC Advice needs to be “consensus” GAC Advice in order to halt a new gTLD application.

I think the confusion is mainly due to the way some people (Willett and myself included) use phrases such as “non-consensus GAC Advice” as shorthand for a particular paragraph of the Applicant Guidebook.

Here’s the way I understand it:

All GAC Advice — including Advice sent on issues completely unrelated to the new gTLD program — is consensus GAC Advice.

If the GAC sends written Advice to the ICANN board, it means the GAC has reached consensus to send that Advice, even if the Advice itself reflects a lack of consensus on the specifics.

Confusion in the community is arising now because the Applicant Guidebook also talks about three types of “GAC Advice on New gTLDs”, the first of which is:

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.

That’s describing a situation where the GAC has reached a consensus that an application should be rejected. It’s going to sound the death knell for several applications, without doubt.

The second type of GAC Advice on New gTLDs in the Guidebook is:

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.

The language was written by the GAC, using its consensus model, which is why it’s so badly worded.

What it means is that the GAC could not find consensus to kill off an application — some governments want it killed off, some don’t — but that the GAC as a whole reached consensus to tell ICANN that some governments do want it killed off.

So when people talk about “non-consensus” Advice, we’re referring to this second form of GAC Advice on New gTLDs, where the GAC could reached consensus to alert ICANN about “concerns” but could not reach consensus that the application should be taken outside and shot.

Which applications are going to get Advice?

The GAC stated last week that 20 applications had been put forward for specific review at the Beijing meeting.

From what I’ve been able to piece together from the GAC’s public hints, its Early Warnings, and sources in Beijing, I think I’ve identified many of these applications.

I’m pretty certain that DotConnectAfrica’s application for .africa is going to get killer Advice.

I’m not picking on DCA (disclosure: DCA accused me of being part of a racist conspiracy) but it is the only remaining applicant to comprehensively ignore ICANN’s rules on geographic names.

It’s also well-known that Amazon’s application for .amazon (and translations), and Patagonia Inc’s application for .patagonia, both of which were not captured by ICANN’s rules on geography, are unloved by Latin American governments.

The Montevideo Declaration, signed by government ministers from the continent last week, specifically condemns any new gTLDs related to Amazonia and Patagonia.

It’s difficult to see how the GAC could ignore the strength of this position, but it’s always possible that some members may have been lobbied into submission by applicants, therefore spoiling consensus.

Other geographic strings that ICANN’s rules did not identify as geographic may also face Advice.

It’s known that .persiangulf, for example, is racially/culturally divisive because the same body of water is also known as the Arabian Gulf by Arab states in the region.

The Japanese government’s Early Warning against .date (issued because there are two cities in Japan that, when translated into Latin characters, are called Date) is also believed to have been put forward for formal GAC Advice.

Outside of geographic names, I hear that .basketball and .rugby are also on the GAC’s shortlist.

These are interesting cases because the governments with the beef (Greece and the UK) are not concerned about the strings themselves. Rather, they want to make sure their preferred applicant wins.

Both gTLDs are contested, and each contention set has one applicant backed by the official world authority for the sport concerned.

If the GAC issues Advice on either, it’s putting itself in the position of picking winners and losers, which could make for some frenetic lobbying in future application rounds.

The application for .uno is believed to be under discussion in the GAC because it clashes with the acronym of an intergovernmental organization.

It also seems pretty certain that Demand Media’s applications for .navy, .army and .airforce are going to get Advice in one form or another. The US, I gather, is adamant that these bids should be rejected at all costs.

How GAC Advice affects the timetable

Willett said yesterday that ICANN expects to receive the GAC’s Advice this week, which should come as some relief to applicants given that the timing has always been a bit vague.

But it’s still not clear what form the Advice will take.

Sure, there’s bound to be some bits of Advice that call out specific applications for death-by-board, but there may also be Advice that addresses certain “categories” of application.

If that happens, and the GAC does not explicitly state which applications fall into which category, there’s the potential for mass confusion following the Beijing meeting.

I raised this specter last week, and it cropped up again during Willett’s session in Beijing yesterday.

What I forgot about last week, and what Willett was quizzed about yesterday, is that the Guidebook gives applicants with GAC Advice 21 days to respond to it before the ICANN board acts.

“I’m concerned that whereby the GAC Advice is such that it is all-encompassing and non-exhaustive that therefore all applicants must respond and all applicants are waiting another 21 days,” ARI Registry Services CEO Adrian Kinderis asked. “No applicant can proceed, because they’re all impacted.”

“If that hypothetical situation occurs, I think that’s possible,” Willett responded.

I other words, if the GAC delivers broad advice this week that does not name specific applications, it’s possible that every applicant would have 21 days to tell ICANN’s board why they’re not affected.

That would completely balls up ICANN’s plan to sign its first registry agreements on April 23.

NTIA fights Big Content’s corner, tells ALL new gTLD applicants to submit PICs

Kevin Murphy, February 26, 2013, Domain Policy

The National Telecommunications and Information Administration said today that all new gTLD applicants, even those that have not already been hit by government warnings, should submit Public Interest Commitments to ICANN.

In a rare comment sent to an ICANN public forum today, the NTIA suggested that applicants should use the process to help combat counterfeiting and piracy.

The agency, the part of the US Department of Commerce that oversees ICANN and participates in its Governmental Advisory Committee, said (emphasis in original):

NTIA encourages all applicants for new gTLDs to take advantage of this opportunity to address the concerns expressed by the GAC in its Toronto Communique, the individual early warnings issued by GAC members, and the ICANN public comment process on new gTLDs, as appropriate.

PICs were introduced by ICANN earlier this month as a way for applicants to voluntarily add binding commitments — for example, a promise to restrict their gTLD to a certain user base — to their registry contracts.

The idea is to let applicants craft and agree to stick to special terms they think will help them avoid receiving objections from the GAC, GAC members and others.

NTIA said that applicants should pay special attention in their PICs to helping out the “creative sector”.

Specifically, this would entail “ensuring that WHOIS data is verified, authentic and publicly accessible”.

They should also “consider providing an enforceable guaranty that the domain name will only be used for licensed and legitimate activities”, NTIA said, adding:

NTIA believes that these new tools may help in the fight against online counterfeiting and piracy and is particularly interested in seeing applicants commit to these or similar safeguards.

The PICs idea isn’t going down too well in the applicant community, judging by other submissions this week.

The Registries Stakeholder Group of ICANN, for example, says its members are feeling almost “blackmailed” into submitting PICs, saying the timing is “completely unreasonable”.

As DI noted when PICs was first announced, applicants have been given until just March 5 to submit their commitments, raising serious questions about the timetable for objections and GAC advice.

The RySG has even convened a conference call for March 4 to discuss the proposal, which it says “contains so many serious and fundamental flaws that it should be withdrawn in
its entirety”.

GAC Early Warnings just got a whole lot more important

Kevin Murphy, January 18, 2013, Domain Policy

ICANN will let new gTLD applicants change their applications in order to respond to the concerns of governments, it has emerged.

Changes to applications made as a result of Early Warnings made by the Governmental Advisory Committee “would in all likelihood be permitted”, ICANN chair Steve Crocker informed the GAC this week.

ICANN is also looking at ways to make these changes enforceable in the respective applicants’ registry contracts.

Combined, the two bits of news confirm that the GAC will have greater power over new gTLD business models than previously anticipated.

The revelations came in the ICANN board of directors’ official response to GAC advice emerging from last October’s Toronto meeting.

After Toronto, the GAC had asked ICANN whether applicants would be able to change their applications in response to Early Warnings, and whether the changes made would be binding.

In response, Crocker told his GAC counterpart, Heather Dryden, that ICANN already has a procedure for approving or denying application change requests.

The process “balances” a number of criteria, including whether the changes would impact competing applicants or change the applicant’s evaluation score, but it’s not at all clear how ICANN internally decides whether to approve a request or not. So far, none have been denied.

Crocker told Dryden:

It is not possible to generalize as to whether change requests resulting from early warnings would be permitted in all instances. But if such requests are intended solely to address the “range of specific issues” listed on page 3 of the Toronto Communique, and do not otherwise conflict with the change request criteria noted above, then such request would in all likelihood be permitted.

The “range of specific issues” raised in the Toronto advice (pdf) are broad enough to cover pretty much every Early Warning:

  • Consumer protection
  • Strings that are linked to regulated market sectors, such as the financial, health and charity sectors
  • Competition issues
  • Strings that have broad or multiple uses or meanings, and where one entity is seeking exclusive use
  • Religious terms where the applicant has no, or limited, support from the relevant religious organisations or the religious community
  • Minimising the need for defensive registrations
  • Protection of geographic names
  • Intellectual property rights particularly in relation to strings aimed at the distribution of music, video and other digital material
  • The relationship between new gTLD applications and all applicable legislation

Some Early Warnings, such as many filed against gTLD bids that would represent regulated industries such as finance and law, ask applicants to improve their abuse mitigation measures.

To avoid receiving potential lethal GAC Advice this April, such applicants were asked to improve their rights protection mechanisms and anti-abuse procedures.

In some cases, changes to these parts of the applications could — feasibly — impact the evaluation score.

The GAC also made it clear in Toronto that it expects that commitments made in applications — including commitments in changes made as a result of Early Warnings — should be enforceable by ICANN.

This is a bit of a big deal. It refers to Question 18 in the new gTLD application, which was introduced late at the request of the GAC and covers the “mission/purpose” of the applied-for gTLD.

Answers to Question 18 are not scored as part of the new gTLD evaluation, and many applicants took it as an invitation to waffle about how awesome they plan to be.

Now it seems possible they they could be held to that waffle.

Crocker told Dryden (with my emphasis):

The New gTLD Program does not currently provide a mechanism to adopt binding contractual terms incorporating applicant statements and commitment and plans set forth within new gTLD applications or arising from early warning discussions between applicants and governments. To address concerns raised by the GAC as well as other stakeholders, staff are developing possible mechanisms for consideration by the Board New gTLD Committee. That Committee will discuss the staff proposals during the upcoming Board Workshop, 31 Janaury – 2 February.

In other words, early next month we could see some new mechanisms for converting Question 18 blah into enforceable contractual commitments that new gTLD registries will have to abide be.

Fight over new sports gTLDs gets real ugly

Kevin Murphy, January 10, 2013, Domain Registries

The battle for contested new gTLDs .rugby and .basketball is turning nasty.

Roar Domains, a New Zealand marketing firm whose gTLD applications are backed by the official international bodies for both sports, is promising to pull out all the stops to kill off its competition.

The company, which is partnered with Minds + Machines on both bids, has told rival portfolio applicant Donuts that it will attack its applications for the two TLDs on at least three fronts.

Notably, Roar wants Donuts disqualified from the entire new gTLD program, and plans to lobby to have Donuts fail its background check.

The company told Donuts last month:

while we have no desire to join the chorus of voices speaking out against Donuts, it is incumbent on us to pursue the automatic disqualification of Applicant Guidebook Section 1.2.1, and every opposition and objection process available to us.

Applicant Guidebook section 1.2.1 deals with background checks.

Donuts came under more scrutiny than most on these grounds during the new gTLDs public comment period last year due to its co-founders being involved at the sharp end of domain investment over the last decade.

Demand Media and eNom, where founder Paul Stahura was a senior executive, have lost many UDRP cases over the years.

A mystery lawyer who refuses to disclose his clients started pursuing Donuts last August, saying the company is “unsuited and ineligible to participate in the new gTLD program.”

Separate (pseudonymous?) public comments fingered a former Donuts director for allegedly cybersquatting the Olympics and Disney.

While Roar has not claimed responsibility for these specific previous attacks, it certainly seems to be planning something similar in future.

In addition, Roar and International Rugby Board, which supports Roar’s application for .rugby, say they plan to official objections with ICANN about rival .rugby bids.

The IRB told Donuts, in a letter shortly before Christmas:

As the global representative of the sport and the only applicant vested with the trust and representation of the rugby community, we are unquestionably the rightful steward of .RUGBY.

Without the support of the global rugby community your commercialization efforts for .RUGBY will be thwarted. We are also preparing an objection to file against your application in accordance with ICANN rules to which you will be required to dedicate resources to formulate a response.

Roar and the IRB are also both lobbying members of ICANN’s Governmental Advisory Committee, which has the power to file potentially decisive GAC Advice against any application.

Roar told Donuts recently:

Roar serves as the voice and arm for FIBA [the International Basketball Federation] and IRB in the New gTLD area. We are pleased to have obtained four Early Warnings on behalf of our applications, and fully expect the GAC process to be completed to GAC Advice.

The Early Warnings against the two other .rugby applicants were filed by the UK government — the only warnings it filed — while Greece warned the two non-Roar .basketball applicants.

Roar is also involved with the International Basketball Federation (FIBA) on its .basketball bid.

While commercial interests obviously play a huge role, there’s a philosophical disagreement at the heart of these fights that could be encapsulated in the following question:

Should new gTLDs only be delegated to companies and organizations most closely affiliated with those strings?

In response to the UK’s Early Warning, Donut has written to UK GAC representative Mark Carvell asking for face-to-face talks and making the case for a “neutral” registry provider for .rugby.

Donuts told Carvell:

We believe gTLDs should be run safely and securely, and in a manner that is fair to all law-­abiding registrants, not only those predetermined as eligible. A neutral third party, such as Donuts, can be best capable of achieving this outcome.

Donuts believes a neutral operator is better able to ensure that the gTLD reflects the full diversity of opinion and content of all Internet users who are interested in the term “rugby.”

As the IRB is a powerful voice in rugby, an IRB‐managed registry might not be neutral in its operations, raising questions about its ability to impartially oversee the gTLD. For example, will IRB/Roar chill free speech by censoring content adversarial to their interests? How would they treat third parties who are interested in rugby but aren’t part of the IRB? What about IRB critics or potential rival leagues?

Despite these questions, no .rugby applicant has said it plans to operate a restricted registry. There are no applications for .basketball or .rugby designated as “Community” bids.

The IRB/Roar application specifically states “anyone can register a .rugby domain name.”

Both .basketball and .rugby are contested by Roar (FIBA/IRB/M+M), Donuts (via subsidiaries) and portfolio applicant Domain Venture Partners (aka Famous Four Media, also via subsidiaries).

Roar is a sports marketing agency that is also involved in bids for .baseball, .soccer, .football and .futbol. The New Zealand national team football captain, Ryan Nelsen, is on its board.

Here are the letters (pdf).

GAC Early Warnings confirmed for today. Here’s what I expect to see

Kevin Murphy, November 20, 2012, Domain Policy

ICANN’s Governmental Advisory Committee is ready to send out its Early Warnings on new gTLD applications today as scheduled, ICANN has confirmed.

The Early Warnings, which highlight applications that individual GAC members have problems with, are expected to be sent by the GAC to applicants and published by ICANN later.

Because the warnings are expected to be issued by individual governments, rather than the GAC as a whole, we could wind up seeing hundreds, due to multiple governments objecting to the same applications.

However, some governments may have decided to be conservative for precisely the same reason.

Governments won’t be able to hide behind the cloak of “GAC Advice”, as they did when .xxx was up for approval last year; the names of the governments will be on the warnings.

That’s not to say there won’t necessarily be safety in numbers. It’s possible that some warnings will be explicitly supported by multiple governments, potentially complicating applicant responses.

But which countries will provide warnings?

I’d be surprised if the US, as arguably the most vocal GAC player, does not issue some. Likewise, the regulation-happy European Commission could be a key objector.

It’s also my understanding that Australia has a raft of concerns about various applications, and has been leading much of the back-room discussion among GAC members.

Going out on a limb slightly, I’m expecting to see the warnings from Western nations concentrating largely on regulated industries, IP protection and defensive registrations.

We’re likely to see warnings about .bank and .sucks, for examples, from these governments. To a certain extent, any non-Community applications that could be seen as representing an industry could be at risk.

On the “morality” front, indications from ICANN’s public comment period are that Saudi Arabia has a great many problems with strings that represent religious concepts, and with strings that appear to endorse behavior inconsistent with Islamic law, such as alcohol and gambling.

But last time I checked Saudi Arabia was not a member of the GAC. It remains to be seen whether similar concerns will be raised by other governments that are members.

The one Early Warning we can guarantee to emerge is against .patagonia, the application from a US clothing retailer that shares its name with a region of South America.

The Argentinian government has explicitly said it will issue a warning against this bid, and I expect it to garner significant support from other GAC members.

The GAC Early Warnings stand to cause significant headaches for applicants, many of which are gearing up for a four-day US Thanksgiving weekend.

After receiving a warning, applicants have just 21 days to decide whether to withdraw their bid — receiving an 80% refund of their $185,000 application fee — or risk a formal GAC Advice objection next year.

But that’s not even half of the problem.

The GAC has indicated that it wants to be able to, effectively, negotiate with new gTLD applicants over the details of their applications after issuing its warnings.

At the Toronto meeting last month, the GAC asked ICANN to explain:

the extent to which applicants will be able to modify their applications as a result of early warnings.

[and]

how ICANN will ensure that any commitments made by applicants, in their applications or as a result of any subsequent changes, will be overseen and enforced by ICANN.

ICANN has not yet responded to these inquiries and it does not expect to do so until Thursday.

The fact is that ICANN has for a long time said that it does not intend to allow any applicant to make any material changes to their applications after submission. This was to avoid gaming.

It has since relaxed that view somewhat, by introducing a change request mechanism that has so far processed about 30 changes, some of which (such as .dotafrica and .banque) were highly material.

Whether ICANN will extend this process to allow applicants to significantly alter their applications in order to calm the fears of governments remains to be seen.

Whatever happens this even, many new gTLD applicants are entering unknown territory.

GAC gets more power to block controversial gTLDs

Kevin Murphy, January 12, 2012, Domain Policy

While the new version of ICANN’s new generic top-level domains Applicant Guidebook contains mostly tweaks, there’s a pretty big change for those filing “controversial” applications.

The Guidebook now grants the Governmental Advisory Committee greater powers to block gTLD applications based on minority government views.

ICANN has adopted poorly-written, ambiguous text approved by the GAC at its meeting in Dakar last October, which lowers the threshold required to force the ICANN board to consider GAC advice.

The changes essentially mean that it’s now much easier for the GAC to force the ICANN board to the negotiating table if a small number of governments object to a gTLD application.

In the September Guidebook, a GAC consensus objection was needed to force the ICANN board to manually approve controversial applications. Now, it appears that only a single country needs to object.

This is the relevant text:

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.

Applications for .gay, of which there are expected to be at least two, will almost certainly fall into this category.

If you’re applying for a potentially controversial gTLD, you can thank the GAC for the fact that your road to approval is now considerably less predictable.

It’s also worth bearing in mind that the GAC is allowed to file an objection based on any aspect of the application – not just the chosen string.

So, for example, if you’re applying for .bank or .pharma and your application falls short of one government’s expected consumer safeguards, you may also see a GAC “concerns” objection.

In cases where the GAC objects to an application, the ICANN board of directors does have the ability to overrule that objection, if it provides its rationale, much as it did with .xxx.

However, .xxx was a special case, and ICANN today is under a regime much friendlier to the GAC and much more nervous about the international political environment than it was 12 months ago.

Make no mistake: GAC Advice on New gTLDs will carry weight.

This table compares the types of GAC Advice described in the Applicant Guidebook published in September with the one published last night.

September Applicant GuidebookJanuary Applicant Guidebook
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.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 the ICANN Board that the application should not be approved. The ICANN Board is also expected to provide a rationale for its decision if it does not follow the GAC
Advice.
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.II. 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.III. 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 unless there is a remediation method available in the Guidebook (such as securing the approval of one or more governments), that is implemented by the applicant. If the issue identified by the GAC is not remediated, the ICANN Board is also expected to provide a rationale for its decision if the Board does not follow GAC advice.

It should also be noted that since Dakar the GAC has defined consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”.

In other words, if some GAC members push for a GAC consensus objection against a given gTLD, other GAC members would have to formally object to that proposed objection in order to prevent the minority view becoming consensus.

It’s a pretty low threshold. The .gay applicants, among others, are going to have a nerve-wracking time.