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What Europe’s demands mean for new gTLDs

Kevin Murphy, September 1, 2011, Domain Policy

The European Commission wants stronger government powers over ICANN’s new top-level domain approval process, according to leaked documents.

Six “informal background papers” obtained and published by .nxt yesterday indicate that the EC, perceiving snubs over the last six months, plans to take a hard line with ICANN.

The documents cover a lot of ground, including a discussion of the various mechanisms by which governments would be able to force ICANN to reject new gTLD applications.

This article covers just the bases related to new gTLDs.

As things currently stand, ICANN’s Applicant Guidebook gives governments three ways to register their objections to any given gTLD application. The EC wants two of them strengthened.

GAC Early Warning

The Governmental Advisory Committee may formally put an applicant on notice that one or more governments have a problem with their bid.

Any government can initiate an Early Warning “for any reason”, at any point during the 60-day public comment period that is currently scheduled to begin April 27.

The mechanism is designed to give applicants a chance to get out with their cash before a more formal objection is filed by the GAC or an individual government.

Applicants in receipt of such a warning can choose to withdraw at that point, receiving a partial refund of their fees, but it’s entirely voluntary.

Under the EC’s new proposals, a GAC Early Warning would trigger an additional requirement by the applicant to show the support of “the relevant internet community”.

Because there’s little chance of getting this provision into the Guidebook now, the EC wants this provision baked into ICANN’s IANA contract with the US Department of Commerce.

The IANA contract is currently the biggest stick governments have to beat ICANN with. It’s up for renewal before March, and it’s the US that decides what goes into the contract.

The European Commission paper on new gTLDs says:

The IANA contract should include a provision requiring applicants to positively demonstrate the support of the relevant Internet community in advance of formal consultation of the GAC (and other supporting organisations and advisory committees), in cases where there are prima facie grounds to believe that the application may raise a public policy concern.

The paper explains: “in other words, if the GAC issues an early warning, the applicant would be automatically required to demonstrate the support of the relevant Internet community”.

In the Guidebook today, only applicants that have self-designated as “community” applications have to show this level of support, using a strict scoring process.

The EC’s proposal could, hypothetically, force non-community applicants to show a similar level of support if a single government initiates an Early Warning in the GAC.

If there was a vanilla, non-community application for .gay, for example, an Early Warning spurred (anonymously) by Saudi Arabia, say, could force the applicant to provide evidence of community support.

How this evidence would be evaluated is unclear. It would depend on what final language the Department of Commerce puts into the IANA contract.

At a guess, it could be a matter for the ICANN board to decide, with the Damoclean sword of IANA non-compliance hanging over its decision.

Formal GAC Advice

The Guidebook today allows for over six months, from April 27 to November 12, for the GAC to formally object to any gTLD application.

The way the GAC will create this formal “GAC Advice on New gTLDs” is a black box. We probably won’t even be told which governments objected, or what level of support they received.

ICANN had tried to enforce certain transparency and procedural requirements on this mechanism, but the GAC told it to take a hike and ICANN bent over in the interests of expediency.

But any such Advice will nevertheless “create a strong presumption for ICANN that the application should not be approved”.

The ICANN board will technically still be able to overrule one of these objections, but it practice it seems unlikely. At the very least it’s not predictable.

Under the European Commission’s new proposals, this fail-safe would be weakened further:

The ICANN by-laws should be amended to ensure that consensus GAC advice is accepted as reflecting the global public interest, and should ICANN wish to reject such advice, it would bear the burden of demonstrating that the GAC advice would conflict with ICANN’s legal obligations or create problems for the stability or security of the Domain name System.

In other words, the bar for an ICANN board decision to overrule the GAC would be raised to only include cases where there was a legal or technical reason not to comply.

The GAC would have an effective veto on every decision ICANN is asked to make. The term “multi-stakeholder” would be subverted in almost textbook Orwellian fashion.

To have this proposal implemented, the EC suggests that ICANN and the GAC enter talks. There’s no talk of running to the US government to have it unilaterally imposed.

Reserved Words

Currently, all new gTLD registries will be forced to reserve strings such as country names from their spaces, and deal with individual governments to open them up.

The EC wants the list expanding to include basically any word that governments ask for, and it wants the US government to make this a condition of IANA contract renewal:

In relation to reserved and blocked names at the second level, the IANA contract should require the contractor to develop appropriate policies to allow governments and public administrations to identify names to be included in a reference list to be respected by all new gTLD operators.

This request appears to have been inspired by ICM Registry’s offer to block “culturally sensitive” strings from .xxx at the request of governments.

Yet again, we find global internet policy being driven by sex. What is it with these politicians?

Domain Name Takedown

Incredibly, the EC also wants the IANA contract to include a provision that would allow any government to ask any gTLD registry to turn off any domain:

The contractor [ICANN] should also be required to ensure that governments and public administrations can raise concerns about particular names after their registration if a serious public order concern is involved, and with a view to the registry “taking down” the name concerned.

This clearly hasn’t been thought through.

Facebook.com and Twitter.com have both been blamed recently for raising “serious public order concerns” in everything from the Egyptian revolution to the London riots.

The new powers the EC is discussing would have given the despotic former government of Egypt a legal basis for having Twitter shut down, in other words.

Cross-Ownership

Finally, the EC is still concerned, on competition grounds, about ICANN’s decision to drop the vertical separation rules that apply to registries and registrars.

It suggests that the IANA contract should create a new oversight body with an “extra-judicial review” function over ICANN, enabling its decisions to be challenged.

This would enable antitrust authorities in Europe or elsewhere to challenge the vertical integration decision without having to resort to the US courts.

Anyway

Overall, the proposals seem to represent a depressingly authoritarian ambition by the European Commission, as well as a disdain for the idea of the ICANN multi-stakeholder model and a shocking lack of respect for the rights of internet users.

While the documents are “informal background papers”, they do seem to give an indication of what certain elements within the EC think would make reasonable policy.

Whether the positions outlined in the papers became a reality would largely depend on whether the EC’s requests, if they were made, were compatible with US public policy.

As usual, the Department of Commerce still holds all the cards.

Kroes slams ICANN new gTLD approval

Kevin Murphy, June 22, 2011, Domain Policy

Neelie Kroes, vice-president of the European Commission, has repeated her call for ICANN reform after it rejected governmental advice in its newly approved top-level domains program.

According to a statement from her official spokesperson sent to Intellectual Property Watch, Kroes said the approval of the program “disregard[ed] governmental advice on public policy issues” and “underscores the need for the model to be reformed to remain sustainable”.

The lack of an adequate response on the part of ICANN Board clearly points to some deficiencies in the current functioning of the model. This calls for specific actions in order to remedy the situation.

Kroes seems to believe that governments are entitled to every concession they demand from “multistakeholder” policy-making processes.

According to IP-Watch, she promised to coordinate a response with EU member states and the US.

While the Governmental Advisory Committee had filed about 80 objections to aspects of the Applicant Guidebook earlier this year, ICANN managed to whittle the list down to a small handful.

It refused to remove the requirement for trademark owners to provide proof of use before participating in sunrise periods, and to lower the burden of proof in certain anti-cybersquatting mechanisms.

Governments also don’t seem particularly convinced by ICANN’s decision to approve the program before consulting more deeply with competition authorities over the vertical integration issue.

GAC chair Heather Dryden delivered a more measured statement expressing “disappointment” with the decision yesterday.

EC GAC representative Gerard de Graaf, who’s earning himself a reputation in ICANN as a bit of a firebrand, was less measured in his response, accusing ICANN of potentially putting new gTLD applicants at risk of violating European competition laws.

More at Intellectual Property Watch.