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ICANN to skip stakeholders for more GAC talks

Kevin Murphy, March 11, 2011, Domain Policy

ICANN stakeholder groups will miss out on their usual formal sit-down with the board of directors at the San Francisco meeting next week, due to talks between the board and governments.

ICANN has confirmed the touted second day of Governmental Advisory Committee consultations, centering on new top-level domains and .xxx, for next Tuesday.

Tuesdays at ICANN meetings are informally referred to as Constituency Day, where the various interest groups that make up the “bottom” of ICANN’s policy-making process meet up.

Usually, the board moves between these meetings, gathering feedback on policy issues from stakeholders such as registrars, registries, ISPs, IP owners and non-commercial users.

According to some attendees, that won’t happen in San Francisco.

ICANN staff will still attend the constituency sessions, but the GAC consultation will take up the board’s undivided attention.

It make perfect sense, of course. There are only so many hours in the day, only so many days in the week, and ICANN is eager to put work on the new TLD program to bed as soon as possible.

But that logic is unlikely to prevent grumblings from some stakeholders.

Is .gay now safe from government blocking?

Kevin Murphy, March 6, 2011, Domain Policy

What are the chances of a .gay top-level domain being added to the internet, given the current state of play in the talks between ICANN and governments?

I think they’re looking pretty good.

While the details have yet to be ironed out, it’s looking like ICANN’s favored method for handling government objections to so-called “sensitive strings” would probably let a .gay slip through.

As you may recall, the ICANN Governmental Advisory Committee had proposed a mechanism for objecting to TLD strings that said in part:

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.

The ICANN board would then be able to treat this advice in the same way its bylaws allow it to treat any GAC advice – it would be free to disregard it, if it had a good reason.

ICANN has seemingly agreed that this process is fair, but has added its own caveats. This is what chair Peter Dengate Thrush just forwarded to GAC chair Heather Dryden (pdf):

A procedure for GAC review will be incorporated into the new gTLD process. The GAC may review the posted applications and provide advice to the ICANN Board. As discussed with the GAC, such advice would be provided within the 45-day period after posting of applications, with documentation according to accountability and transparency principles including whether the advice from the GAC is supported by a consensus of GAC members (which should include identification of the governments raising/supporting the objection).

While it’s certainly a concession to the GAC’s request to be allowed to provide advice about potentially objectionable strings, I think the addition of “transparency principles” is important.

The GAC’s original proposal would have maintained the black-box approach to advice-making that currently characterizes its role in ICANN. It reaches consensus in private.

For example, all we know about the GAC’s opposition to the .xxx TLD application is that “several governments” object to it. We don’t (officially, at least) know which governments.

Complicating matters, the GAC believes that referring to this minority position in one of its official Communiques makes it consensus “advice” on .xxx that ICANN must consider.

If ICANN’s new transparency requirements had been applied to the .xxx application, it would make the call it has to make next week – whether to reject the GAC advice and approve .xxx – much more well-informed.

Returning to .gay, if the GAC is going to be obliged to name (and, depending on your perspective, shame) the governments that officially object to the string, it leaves a lot less room for back-room horse-trading leading to amorphous “consensus” positions.

Let’s say, for example, that Saudi Arabia, Iran and the United Arab Emirates (three countries where the death penalty still applies to active homosexuals) were to object to the string.

How much support would that move receive from governments in less repressive parts of the world?

Which relatively liberal Western governments would be willing to put their names to a document that essentially implements homophobia in the DNS? Very few, I would imagine.

For such an objection to gather broader support there would have to be a real risk of “root fragmentation” – the threat that the Saudis et al could decide that, rather than blocking .gay, it would be easier to divorce themselves from ICANN entirely and set up their own competing DNS root.

But let’s remember that by the time .gay is live and available to block, there’s a good chance that .xxx – equally opposed by several nations – will have been in the root for a couple of years. The practice of gTLD blocking at the national level may well be the norm by that point.

So, let’s now say that the GAC’s advice, stating an objection to .gay and naming the limited number of objectors, is forwarded to the ICANN board. What happens then?

Absent some kind of objective scoring system, directors would each have to make a subjective decision. Do I want to give TLD veto power to a narrow, homogeneous subset of nations? Do I want lowest common denominator morality to dictate global internet policy?

I’d like to think that, faced with such a choice, most ICANN directors would vote with their consciences. I hope I’m not being naïve.

This is a scenario I’m exploring hypothetically here, of course, but these are the kinds of decisions that may have to be made for real over the coming few years.

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.