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Governments slammed for overreach as Amazon wins gTLD appeal

Kevin Murphy, July 19, 2017, Domain Policy

Amazon has won its appeal against the rejection of its .amazon gTLD application, in a ruling that criticizes ICANN for giving too much deference to government advice.

The Independent Review Process panel’s 2-to-1 ruling, delivered July 11 and published this week, means that .amazon and its Chinese and Japanese translations has been un-rejected and ICANN will have to consider approving it again.

The ruling (pdf) turns on the idea that ICANN’s board of directors rejected the gTLD based on nothing more than the groundless objections of a few South American governments.

Amazon’s applications were rejected three years ago when ICANN accepted the consensus advice of its Governmental Advisory Committee.

That advice, which had no attached rationale, had come largely at the behest of Brazil and Peru, two countries through which the Amazon river flows.

At issue was the word “Amazon”, which the governments protested matched the name of an important geographic region extending into several countries.

But the string was not protected by ICANN’s new gTLD program rules because it does not match the name of an administrative region of any country.

Regardless, Brazil and Peru said that to give .amazon to Amazon would prevent it being used in future by citizens of the informal South American region.

GAC consensus was reached only after the US government, for political reasons connected to the then-recent announcement of the IANA transition, decided to withdraw its objection to the advice.

Consensus, under GAC rules means simply that no one government objects to the proposed advice. It does not indicate unanimity.

But at no point in the pubic record of discussions within the GAC or ICANN board did anyone give any substantial public policy reasons for the objection, the IRP panel has now found.

Global Domains Division chief Akram Atallah testified before the panel that consensus GAC advice sets “too high for the Board to say no.”

It seems ICANN sometimes just assumes that GAC advice by default is rooted in sound public policy, even when that is not the case.

Brazil and Peru’s objections “do not appear to be based on well-founded public policy concerns that justify the denial of the applications” the panelists wrote.

The panel wrote:

We conclude that GAC consensus advice, although no reasons or rationale need be given, nonetheless must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record…

the Board cannot simply accept GAC consensus advice as conclusive. The GAC has not been granted a veto under ICANN’s governance documents.

So, while the GAC was under no obligation to state its reasons for objecting to .amazon, the ICANN board was obliged to state its reasons for accepting this advice beyond just “the GAC made us do it”.

As somebody who spent much of 2011 arguing that the GAC new gTLD veto was a bad idea, it’s nice to see the panel agree with me.

The GAC itself also erred by refusing to consider Amazon’s arguments in favor of its application, the IRP panel’s majority found.

Peru had publicly claimed that the string “Amazon” was protected under ICANN rules, which was not true, and Amazon did not have the opportunity to correct the record.

Amazon had also pointed out that the Brazilian oil company Ipiranga was granted its application for .ipiranga, despite its name matching the name of a Brazilian river apparently so important that it is referred to in the Brazilian national anthem.

However, the IRP panel decided that because ICANN’s board had not taken any action on .ipiranga, there was no basis for it to consider whether Amazon had been unfairly subject to different treatment.

In conclusion, this is what the panel has sent to the board:

The Panel recommends that the Board of ICANN promptly re-evaluate Amazon’s applications in light of the Panel’s declarations above. In its re-evaluation of the applications, the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications. Further, if the Board determines that the applications should not proceed, the Board should explain its reasons supporting that decision. The GAC consensus advice, standing alone, cannot supplant the Board’s independent and objective decision with a reasoned analysis.

It seems Amazon’s chances of having .amazon approved have improved. If ICANN wants to reject the applications again it is going to have to come up with some good reasons, some good reasons that possibly do not exist.

The panel also ordered ICANN to reimburse Amazon for the $163,045.51 it spent on the IRP.

US “threatens” Costa Rica over Pirate Bay domains

Kevin Murphy, June 16, 2017, Domain Policy

The US government has been threatening to “close down” Costa Rica’s .cr registry over its refusal to take down a Pirate Bay domain name, according to the registry.

Representatives of the US embassy in Costa Rica have been badgering NIC.cr to take down thepiratebay.cr since 2015, according to a letter from Pedro León Azofeifa, president of Academia Nacional de Ciencias, which runs the registry.

The letter claims:

These interactions with the United States Embassy have escalated with time and include great pressure since 2016 that is exemplified by several phone calls, emails and meetings urging our ccTLD to take down the domain, even though this would go against our domain name policies

According to the letter, a US official “has mentioned threats to close our registry, with repeated harassment regarding our practices and operation policies and even personal negative comments directed to our Executive Director”.

The letter was sent to the chair of ICANN’s Governmental Advisory Committee 10 days ago, CC’d to senior ICANN, Costa Rican and US governmental figures, and has been circulated this week in the Latin American domain name community.

The form of the alleged threats to close the registry is not clear, but it should be noted that prior to October 1 last year the US Department of Commerce, via its now-relinquished oversight of ICANN, played a key role in the administration of the DNS root zone.

The Pirate Bay is of course a popular directory of BitTorrent links largely used to disseminate pirated copies of movies and music, much of it American-made.

The site has been TLD-hopping for years, as registries around the world shut down its domains for violations of their own local rules. It has been live on thepiratebay.cr since December 2014, when its Swedish operation was shut down by authorities.

The NIC.cr letter says that its own policies follow international “best practices” and allow it to take down domains when presented with a Costa Rican court order, but that “the pressure and harassment [from the US] to take down the domain name without its proper process and local court order persists”.

The US Department of Commerce even pressured its Costa Rican counterpart to investigate NIC.cr, but that probe concluded that the registry was acting within its procedures, according to the letter.

It’s not the first attempt to get rid of the Pirate Bay this year.

Public Interest Registry in February announced a “UDRP for copyright” proposal that would allow copyright holders to have piracy disputes heard by independent arbitrators. It looked like a way to get unloved thepiratebay.org domain taken down without PIR having to take unilateral action.

That proposal was shelved after an outcry from the industry and civil rights watchdogs.

In April, one of the Pirate Bay’s founders launched a piracy-friendly domain registration service.

Just this week, the European Court of Justice ruled, after seven years of legal fights, that the Pirate Bay infringes copyright, raising the possibility of the site being blocked in more European countries.

The NIC.cr letter is dated June 6. It has not yet been published by ICANN or the GAC.

Country names to finally be released in new gTLDs

Kevin Murphy, May 24, 2017, Domain Policy

It looks like hundreds of domain names matching the names of countries are to finally get released from ICANN limbo.

The ICANN board last week passed a resolution calling for the organization to clear a backlog of over 60 registry requests to start selling or using country and territory names in their gTLDs.

Some of the requests date back to 2014. They’ve all been stuck in red tape while ICANN tried to make sure members of the Governmental Advisory Committee was cool with the names being released.

The result of these three years of pondering is scrappy, but will actually allow some names to hit the market this year.

The new resolution calls for ICANN to “take all steps necessary to grant ICANN approvals for the release of country and territory names at the second-level”, but only “to the extent the relevant government has indicated its approval”.

And that’s the catch.

Some governments, such as the US and UK, don’t care who registers matching names. Dozens of others want to vet each registry request on a case-by-case basis.

The wishes of each government are record in a GAC database.

The only territories to so far give a blanket waiver over their names are: Denmark, Finland, Ireland, the Netherlands, Norway, Sweden, the UK, the USA, Guernsey and Pitcairn.

Almost 70 other countries have said they need to be told when a registry wants to sell a domain matching their name. Ten others give carte blanche to closed dot-brands, but require notification in the case of open gTLDs.

The majority of countries in the world have yet to officially express a preference one way or the other.

Of the roughly 60 new gTLD registries to request country name releases over the last few years, the vast majority are dot-brands. The number of open gTLDs with such requests appears to be in the single figures, and the only ones with mass-market appeal appear to be .xyz and .global.

Iran reported to Ombudsman after new gTLD conspiracy theory

Kevin Murphy, May 17, 2017, Domain Policy

ICANN’s Ombudsman has stepped in to resolve a complaint from the Iranian government that it was being “excluded” from discussions about the next phase of the new gTLD program.

Kavouss Arasteh, Iran’s Governmental Advisory Committee representative, earlier this month accused the leadership of the New gTLD Subsequent Procedures Working Group of deliberately scheduling teleconferences to make them difficult for him to attend.

He said the 0300 UTC timing of a meeting made it “painful” for European volunteers to participate (though it’s 0730 in Tehran).

When WG co-chair Avri Doria said that the time had been selected to avoid clashes with other working groups and declined his request, Arasteh said in an email: “If you insist, I interpret that this is an effort to EXCLUDE GAC TO ATTEND THE PDP.”

In other words, he was accusing the WG leaders of trying to exclude governments from helping to develop the rules of the new gTLD program.

Doria responded that she took the tone of the remarks as “abusive”, adding:

since my motives have been attacked and since I have been accused of trying to prevent GAC participation, I have no choice other than to turn this issue over to the Ombudsman.

The only other alternative I can think of is to accept the fact that I am incapable of co-chairing this group and step down.

Fellow co-chair Jeff Neuman chipped in with a detailed explanation of how, in the global ICANN community, there usually isn’t a time of day that is not inconvenient to at least some volunteers.

(It’s sometimes possible to hear snoring on these calls, but that’s not always due to the time of day.)

Today, Ombudsman Herb Weye responded to Doria’s complaint, saying that it has been “resolved” between the two parties. He wrote:

Without going into detail I am pleased to advise the working group that this complaint has been resolved and that I can bear witness to a unanimous demonstration of support for the leadership of the working group.

I would like to highlight the professional, “human” approach taken by all involved and their willingness to communicate in a clear, respectful and objective manner. This cooperative atmosphere allowed for a timely discussion and quick resolution.

Aratesh has for some time been one of the most vocal and combative GAC reps, noticeably unafraid to raise his voice when he needs to make his point.

He recently publicly threatened to take his concerns about ICANN’s policy on two-character domains to the International Telecommunications Union if his demands were not met.

ICANN loosens Whois privacy rules for registrars

Kevin Murphy, April 20, 2017, Domain Policy

ICANN has made it easier for registries and registrars to opt-out of Whois-related contractual provisions when they clash with local laws.

From this week, accredited domain firms will not have to show that they are being investigated by local privacy or law enforcement authorities before they can request a waiver from ICANN.

Instead, they’ll be also be able to request a waiver preemptively with a statement from said authorities to the effect that the ICANN contracts contradict local privacy laws.

In both cases, the opt-out request will trigger a community consultation — which would include the Governmental Advisory Committee — and a review by ICANN’s general counsel, before coming into effect.

The rules are mainly designed for European companies, as the EU states generally enjoy stricter privacy legislation than their North American counterparts.

European registrars and registries have so far been held to a contract that may force them to break the law, and the only way to comply with the law would be to wait for a law enforcement proceeding.

ICANN already allows registrars to request waivers from the data retention provisions of the 2013 Registrar Accreditation Agreement — which require the registrar to hold customer data for two years after the customer is no longer a customer.

Dozens of European registrars have applied for and obtained this RAA opt-out.

Government anger over two-letter domains

Kevin Murphy, March 16, 2017, Domain Policy

ICANN’s Governmental Advisory Committee has clashed with its board of directors over the lack of protections for two-letter domain names that match country codes.

The board has now formally been urged to reconsider its policy to allow registries to sell these names, after angry comments and threats from some GAC members.

Governments from Brazil, Iran, China and the European Union are among at least 10 angered that the names are either not adequately protected or only available for exorbitant prices,

The debate got very heated at ICANN 58 here in Copenhagen on Wednesday morning, during a public session between the GAC and the board, with Iran’s outspoken GAC rep, Kavous Arasteh, almost yelling at Chris Disspain, the board’s point man on the topic.

Arasteh even threatened to take his concerns, if not addressed, to the International Telecommunications Union when it convenes for a plenipotentiary next year.

“Your position is not acceptable. Rejected categorically,” he said.

“The multistakeholder process was not easily accepted by many countries. Still people have difficulty with that,” he said. “We have a plenipotentiary coming in 2018, and we will raise the issue if the matter is not resolved… It is not always commercial, government also has some powers, and we exercise our powers.”

Invoking the ITU is a way to turn a relatively trivial disagreement into an existential threat to ICANN, a typical negotiating tactic of governments that don’t get what they want from ICANN.

The relatively trivial disagreement in this case is ICANN’s decision to allow gTLD registries to release all previously reserved two-letter strings.

In November, ICANN approved a policy that released all two-letter strings on the proviso that registrants have to assert that they will not pass themselves off as affiliated with the countries concerned.

Registries also were given a duty to investigate — but not necessarily act upon — governmental complaints about confusion.

ICANN thinks that this policy is perfectly compliant with the GAC’s latest official advice, supplied following the Helsinki meeting last June, which asked ICANN to:

urge the relevant Registry or the Registrar to engage with the relevant GAC members when a risk is identified in order to come to an agreement on how to manage it or to have a third-party assessment of the situation if the name is already registered.

Disspain patiently pointed out during Wednesday’s session that governments have no legal rights to their ccTLD strings at the second level, and that most of the complaining governments don’t even protect two-letter strings in their own ccTLDs.

But some GAC reps disagreed.

China stated (via the official interpreter): “We believe the board doesn’t have the right or the mandate to decide whether GAC members have the right over two-character domain names.”

While no government spoke in favor of the ICANN policy on Wednesday, the complaining governments do appear to be in a minority of the GAC.

Despite this, they seem to have been effective in swaying fellow committee members to issue some stern new advice. The Copenhagen communique, published last night (pdf), reads:

a. The GAC advises the ICANN Board to:

I. Take into account the serious concerns expressed by some GAC Members as contained in previous GAC Advice

II. Engage with concerned governments by the next ICANN meeting to resolve those concerns.

III. Immediately explore measures to find a satisfactory solution of the matter to meet the concerns of these countries before being further aggravated.

IV. Provide clarification of the decision-making process and of the rationale for the November 2016 resolution, particularly in regard to consideration of the GAC advice, timing and level of support for this resolution.

ICANN is being compelled to retroactively revisit a policy that was issued in compliance with previous GAC advice, it seems.

The next ICANN meeting is being held in Johannesburg in June, so the clock is ticking.

Two-letter domains are valuable properties even in new gTLDs. With each expected to sell for thousands, two-letter names are likely to be a multimillion dollar windfall for even moderately sized portfolio registries.

Schneider quits as chair of GAC

Kevin Murphy, March 11, 2017, Domain Policy

ICANN’s Governmental Advisory Committee is looking for a new chair.

Incumbent Thomas Schneider intends to leave the role before his current two-year term expires, he told GAC members assembled here at the ICANN 58 public meeting in Copenhagen this afternoon.

Schneider said that his boss at the Swiss government agency at which he works recently retired and that he has been appointed his successor.

From April, he’ll become vice director of the Federal Office of Communication, responsible for international affairs, he said.

The increased workload, including organizing the next Internet Governance Forum in Geneva, means he will no longer be able to devote his time to chairing the GAC, he said.

Schneider’s first two-year term as GAC chair started at the beginning of 2015. He was reelected to the position for a second term last November.

His replacement will be elected at the ICANN 60 meeting in Abu Dhabi this coming October, at which point Schneider will hand over the reins.

Get ready for thousands of new two-letter domains

Kevin Murphy, November 9, 2016, Domain Policy

New gTLD registry operators have been given the right to start selling two-letter domains that match country codes.

Potentially thousands of names could start being released next year, resulting in a windfall for registries and possible opportunities for investors.

Some governments, however, appear to be unhappy with the move and how ICANN’s board of directors reached its decision.

The ICANN board yesterday passed a resolution that will unblock all two-letter domains that match country codes appearing on the ISO 3166 list, most of which are also ccTLDs.

While the resolution gives some protection to governments worried about abuse of “their” strings, it’s been watered down to virtually nothing.

In the first draft of the rules, published in July, ICANN said registries “must” offer an “Exclusive Availability Pre-registration Period” — a kind of mini-sunrise period limited to governments and ccTLD operators.

In the version approved by ICANN yesterday, the word “must” has been replaced by “may” and the word “voluntary” has been added.

In other words, registries won’t have to give any special privileges to governments when they start selling two-character names.

They will, however, have to get registrants to agree that they won’t pass themselves off as having affiliations with the relevant government. It looks like registries probably could get away with simply adding a paragraph to their terms of service to satisfy this requirement.

Registries will also have to “take reasonable steps to investigate and respond to any reports from governmental agencies and ccTLD operators of conduct that causes confusion with the corresponding country code in connection with the use of a letter/letter two-character ACSCII domain.”

This too is worded vaguely enough that it could wind up being worthless to governments, many of which are worried about domains matching their ccTLDs being passed off as government-approved.

The Governmental Advisory Committee is split on how worrisome this kind of thing is.

For examples, governments such as Spain and Italy have fought for the right to get to pre-approve the release of “es” and “it” domains, whereas the governments of the US and UK really could not care less.

The most-recent formal GAC advice on the subject, coming out of the July meeting in Helsinki, merely said ICANN should:

urge the relevant Registry or the Registrar to engage with the relevant GAC members when a risk is identified in order to come to an agreement on how to manage it or to have a third-party assessment of the situation if the name is already registered

“It is our belief that that our resolution is consistent with GAC advice,” outgoing ICANN board member Bruce Tonkin said yesterday, noting that nobody can claim exclusive rights over any string, regardless of length.

Before and after the resolution passed, the GAC expressed “serious concern” that the board had not formally responded to the Helsinki communique.

In its Hyderabad communique, issued after yesterday’s vote, the GAC advised the board to:

  • Clearly indicate whether the actions taken by the Board as referred to in the resolution adopted on 8 November 2016 are fully consistent with the GAC advice given in the Helsinki Communiqué.
  • Always communicate in future the position of the Board regarding GAC advice on any matter in due time before adopting any measure directly related to that advice.

ICANN staff are now tasked with coming up with a way to implement the two-character release.

My sense is that some kind of amendment to Registry Agreements might be required, so we’re probably looking at months before we start seeing two-letter domains being released.

Governments mull greater geo gTLD powers

Kevin Murphy, November 3, 2016, Domain Policy

Governments are toying with the idea of asking ICANN for greater powers over gTLDs that match their geographic features.

The names of rivers, mountains, forests and towns could be protected under ideas bandied around at the ICANN 57 meeting in India today.

The Governmental Advisory Committee held a session this morning to discuss expanding the list of strings that already enjoy extra ICANN protections on grounds of geography.

In the 2012 application round, gTLDs matching the names or ISO acronyms of countries were banned outright.

For capital city names and non-capital names where the gTLD was meant to represent the city in question, government approval was required.

For regions on the ISO 3166 list, formal government non-objection was required whether or not the gTLD was intended to represent the region.

That led to gTLDs such as .tata, a dot-brand for Tata Group, being held up indefinitely because it matches the name of a small region of Morocco.

One applicant wound up agreeing to fund a school to the tune of $100,000 in order to get Montenegro’s support for .bar.

But other names were not protected.

Notably, the string “Amazon” was not on any of the protected lists, largely because while it’s a river and a forest it doesn’t match the name of a formal administrative region of any country.

While GAC objections ultimately killed off Amazon’s bid for .amazon (at least for now), the GAC wants to close the Amazon loophole in time for the next new gTLD application round.

The GAC basically is thinking about the power to write its own list of protected terms. It would build on the existing list to also encompass names of “geographic significance”.

GAC members would be able to submit names to the list; applicants for those names would then require non-objection letters from the relevant government(s).

Some governments, including the UK and Peru, expressed concern that “geographic significance” is a little vague.

Truly, without a narrow definition of “significance” it could turn out to be a bloody big list. The UK alone has over 48,000 towns, not to mention all the named forests, rivers and such.

Peru, one of the nations that had beef with Amazon, said it intended to send ICANN a list of all the geographic names it wants protecting, regardless of whether the GAC decides to create a new list.

Other GAC members, including Iran and Denmark, pressed how important it was for the GAC to coordinate with other parts of the ICANN community, mainly the GNSO, on geo names, to avoid overlap and conflict further down the line.

The GAC has a working group looking at the issue. It hopes to have something to recommend to the ICANN board by the Copenhagen meeting next March.

RANT: Governments raise yet another UN threat to ICANN

Kevin Murphy, October 31, 2016, Domain Policy

ICANN’s transition away from US government oversight is not even a month old and the same old bullshit power struggles and existential threats appear to be in play as strongly as ever.

Governments, via the chair of the Governmental Advisory Committee, last week yet again threatened that they could withdraw from ICANN and seek refuge within the UN’s International Telecommunications Union if they don’t get what they want from the rest of the community.

It’s the kind of thing the IANA transition was supposed to minimize, but just weeks later it appears that little has really changed in the rarefied world of ICANN politicking.

Thomas Schneider, GAC chair, said this on a conference call between the ICANN board and the Generic Names Supporting Organization on Thursday:

I’m just urging you about considering what happens if many governments consider that this system does not work. They go to other institutions. If we are not able to defend public interest in this institution we need to go elsewhere, and this is exactly what is happening currently at the ITU Standardization Assembly.

This is a quite explicit threat — if governments don’t like the decisions ICANN makes, they go to the ITU instead.

It’s the same threat that has been made every year or two for pretty much ICANN’s entire history, but it’s also something that the US government removing its formal oversight of ICANN was supposed to help prevent.

So what’s this “public interest” the GAC wants to defend this time around?

It’s protections for the acronyms of intergovernmental organizations (IGOs) in gTLDs, which we blogged about a few weeks ago.

IGOs are bodies ranging from the relatively well-known, such as the World Health Organization or World Intellectual Property Organization, to the obscure, such as the European Conference of Ministers of Transport or the International Tropical Timber Organization.

According to governments, the public interest would be served if the string “itto”, for example, is reserved in every new gTLD, in other words. It’s not known if any government has passed laws protecting this and other IGO strings in their own ccTLDs, but I suspect it’s very unlikely any have.

There are about 230 such IGOs, all of which have acronyms new gTLD registries are currently temporarily banned from selling as domains.

The multi-stakeholder GNSO community is on the verge of coming up with some policy recommendations that would unblock these acronyms from sale and grant the IGOs access to the UDRP and URS mechanisms, allowing them to reclaim or suspend domains maliciously exploiting their “brands”.

The responsible GNSO working group has been coming up with these recommendations for over two years.

While the GAC and IGOs were invited to participate in the WG, and may have even attended a couple of meetings, they decided they’d have a better shot at getting what they wanted by talking directly to the ICANN board outside of the usual workflow.

The WG chair, Phil Corwin of the Internet Commerce Association, recently described IGO/GAC participation as a “near boycott”.

This reluctance to participate in formal ICANN policy-making led to the creation of the so-called “small group”, a secretive ad hoc committee that has come up with an opposing set of recommendations to tackle the same IGO acronym “problem”.

I don’t think it’s too much of a stretch to call the the small group “secretive”. While the GNSO WG’s every member is publicly identified, their every email publicly archived, their every word transcribed and published, ICANN won’t even say who is in the small group.

I asked ICANN for list of its members a couple of weeks ago and this is what I got:

The group is made up of Board representatives from the New gTLD Program Committee (NGPC), primarily, Chris Disspain; the GAC Chair; and representatives from the IGO coalition that first raised the issue with ICANN and some of whom participated in the original PDP on IGO-INGO-Red Cross-IOC protections – these would include the OECD, the UN, UPU, and WIPO.

With the publication two weeks ago of the small group’s recommendations (pdf) — which conflict with the expect GNSO recommendations — the battle lines were drawn for a fight at ICANN 57, which kicks off this week in Hyderabad, India.

Last Thursday, members of the GNSO Council, including WG chair Corwin, met telephonically with GAC chair Schneider, ICANN chair Steve Crocker and board small group lead Disspain to discuss possible ways forward.

What emerged is what Crocker would probably describe as a “knotty” situation. I’d describe it as a “process clusterfuck”, in which almost all the relevant parties appear to believe their hands are tied.

The GNSO Council feels its hands are tied for various reasons.

Council chair James Bladel explained that the GNSO Council doesn’t have the power to even enter substantive talks.

“[The GNSO Council is] not in a position to, or even authorized to, negotiate or compromise PDP recommendations that have been presented to use by a PDP working group and adopted by Council,” he said.

He went on to say that while the GNSO does have the ability to revisit PDPs, to do so would take years and undermine earlier hard-fought consensus and dissuade volunteers from participating in policy making. He said on the call:

By going back and revisiting PDPs we both undermine the work of the community and potentially could create an environment where folks are reluctant to participate in PDPs and just wait until a PDP is concluded and then get engaged at a later stage when they feel that the recommendations are more likely adopted either by the board or reconciled with GAC advice.

He added that contracted parties — registries and registrars — are only obliged to follow consensus policies that have gone through the PDP process.

Crocker and Disspain agreed that the the GAC and the GNSO appear to have their hands tied until the ICANN board makes a decision.

But its hands are also currently tied, because it only has the power to accept or reject GNSO recommendations and/or GAC advice, and it currently has neither before it.

Chair Crocker explained that the board is not able to simply impose any policy it likes — such as the small group recommendations, which have no real legitimacy — it’s limited to either rejecting whatever advice the GAC comes up with, rejecting whatever the GNSO Council approves, or rejecting both.

The GNSO WG hasn’t finished its work, though the GNSO Council is likely to approve it, and the GAC hasn’t considered the small group paper yet, though it is likely to endorse it it.

Crocker suggested that rejecting both might be the best way to get everyone around a table to try to reach consensus.

Indeed, it appears that there is no way, under ICANN’s processes, for these conflicting views to be reconciled formally at this late stage.

WG chair Corwin said that any attempt to start negotiating the issue before the WG has even finished its work should be “rejected out of hand”.

With the GNSO appearing to be putting up complex process barriers to an amicable way forward, GAC chair Schneider repeatedly stated that he was attempting to reach a pragmatic solution to the impasse.

He expressed frustration frequently throughout the call that there does not appear to be a way that the GAC’s wishes can be negotiated into a reality. It’s not even clear who the GAC should be talking to about this, he complained.

He sounds like he’s the sensible one, but remember he’s representing people who stubbornly refused to negotiate in the WG over the last two years.

Finally, he raised the specter of governments running off to the UN/ITU, something that historically has been able to put the willies up those who fully support (and in many cases make their careers out of) the ICANN multistakeholder model.

Here’s a lengthier chunk of what he said, taken from the official meeting transcript:

If it turns out that there’s no way to change something that has come out of the Policy Development Process, because formally this is not possible unless the same people would agree to get together and do the same thing over again, so maybe this is what it takes, that we need to get back or that the same thing needs to be redone with the guidance from the board.

But if then nobody takes responsibility to — in case that everybody agrees that there’s a public interest at stake here that has not been fully, adequately considered, what — so what’s the point of this institution asking governments for advice if there’s no way to actually follow up on that advice in the end?

So I’m asking quite a fundamental question, and I’m just urging you about considering what happens if many governments consider that the system does not work. They go to other institutions. They think we are not able to defend public interest in this institution. We need to go elsewhere. And this is exactly what is happening currently at the ITU Standardization Assembly, where we have discussions about protection of geographic names because — and I’m not saying this is legitimate or not — but because some governments have the feeling that this hasn’t been adequately addressed in the ICANN structure.

I’m really serious about this urge that we all work together to find solutions within ICANN, because the alternative is not necessarily better. And the world is watching what signals we give, and please be aware of that.

The “geographic names” issue that Schneider alludes to here seems to be a proposal (Word .doc) put forward by African countries and under discussion at the ITU’s WTSA 2016 meeting this week.

The proposal calls for governments to get more rights to oppose geographic new gTLD applications more or less arbitrarily.

It emerged not from any failure of ICANN policy — geographic names are already protected at the request of the GAC — but from Africa governments being pissed off that .africa is still on hold because DotConnectAfrica is suing ICANN in a California court and some batty judge granted DCA a restraining order.

It’s not really relevant to the IGO issue, nor especially relevant to the issue of governments failing to influence ICANN policy.

The key takeaway from Schneider’s remarks for me is that, despite assurances that the IANA transition was a way to bring more governments into the ICANN fold rather than seeking solace at the UN, that change of heart is yet to manifest itself.

The “I’m taking my ball and going home” threat seems to be alive and well for now.

If you made it this far but want more, the transcript of the call is here (pdf) and the audio is here (mp3). Good luck.