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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.

Thick Whois coming to .com next year, price rise to follow?

Kevin Murphy, October 27, 2016, Domain Registries

Verisign could be running a “thick” Whois database for .com, .net and .jobs by mid-2017, under a new ICANN proposal.

A timetable published this week would see the final three hold-out gTLDs fully move over to the standard thick Whois model by February 2019, with the system live by next August.

Some people believe that Verisign might use the move as an excuse to increase .com prices.

Thick Whois is where the registry stores the full Whois record, containing all registrant contact data, for every domain in their TLD.

The three Verisign TLDs currently have “thin” Whois databases, which only store information about domain creation dates, the sponsoring registrar and name servers.

The model dates back to when the registry and registrar businesses of Verisign’s predecessor, Network Solutions, were broken up at the end of the last century.

But it’s been ICANN consensus policy for about three years for Verisign to eventually switch to a thick model.

Finally, ICANN has published for public comment its anticipated schedule (pdf) for this to happen.

Under the proposal, Verisign would have to start offering registrars the ability to put domains in its thick Whois by August 1 2017, both live via EPP and in bulk.

It would not become obligatory for registrars to submit thick Whois for all newly registered domains until May 1, 2018.

They’d have until February 1, 2019 to bulk-migrate all existing Whois records over to the new system.

Thick Whois in .com has been controversial for a number of reasons.

Some registrars have expressed dissatisfaction with the idea of migrating part of their customer relationship to Verisign. Others have had concerns that local data protection laws may prevent them moving data in bulk overseas.

The new proposal includes a carve-out that would let registrars request an exemption from the requirements if they can show it would conflict with local laws, which holds the potential to make a mockery out of the entire endeavor.

Some observers also believe that Verisign may use the expense of building and operating the new Whois system as an excuse to trigger talks with ICANN about increasing the price of .com from its current, frozen level.

Under its .com contract, Verisign can ICANN ask for a fee increase “due to the imposition of any new Consensus Policy”, which is exactly what the move to thick Whois is.

Whether it would choose to exercise this right is another question — .com is a staggeringly profitable cash-printing machine and this Whois is not likely to be that expensive, relatively speaking.

The proposed implementation timetable is open for public comment until December 15.

ICANN faces first post-transition test of UN power (for real this time)

Kevin Murphy, October 7, 2016, Domain Policy

The ICANN community and United Nations agencies are heading for a clash, with governments accused this morning of trying to bypass the ICANN policy-making process.

According to the leader of an ICANN volunteer working group, governments and UN-affilated intergovernmental organizations (IGOs) have circumvented the usual ICANN consensus-building process in order to extract the policies they want directly from the ICANN board of directors and staff.

It’s the first time since the IANA transition, which happened less than a week ago, that governments have been accused of exploiting their special access to the board, and it may become a hot topic at next month’s ICANN 57 meeting in India.

Governments and UN agencies now stand accused of “bypassing the ICANN community” in order to achieve their policy goals.

But the policy being debated is not directly linked to the IANA transition, nor to the thoroughly debunked notion that the UN has taken over ICANN.

Indeed, the issue in question — the permanent protection of IGO acronyms in gTLDs — is almost embarrassingly narrow and predates the announcement of the IANA transition by at least three years, going back to at least 2011.

Basically, the policy questions that look set to cause even more conflict between governments and others are: should IGO acronyms be protected, and if so, how?

IGO acronyms are strings such as WIPO, UNESCO and OECD.

The ICANN board punted this question in May 2014, when it received conflicting advice from the Governmental Advisory Committee and Generic Names Supporting Organization.

Since then, a GNSO Policy Development Process working group has been working on recommendations. It has not yet issued its initial findings, but is close.

Simultaneously and separately, members of ICANN’s board and staff have been quietly talking to a handful of GAC members and IGOs about the same issue in what has become known as the “small group”.

Because it’s small. And a group.

Yesterday, ICANN divulged the consensus of the small group in a letter (pdf) to the leaders of the GNSO Council.

Its recommendations conflict in almost every respect with what the GNSO working group intends to recommend.

The small group wants ICANN to create IGOs-acronyms-only versions of the Trademark Clearinghouse database, Trademark Claims service and UDRP and URS dispute resolution mechanisms — basically “functionally equivalent” mirrors of almost all of the rights protection mechanisms currently only available to trademark owners.

They would be administered at least partially by the GAC and at no cost to the IGOs themselves (presumably meaning ICANN would pick up the tab).

It seems like a disproportionate amount of faff considering the problem ICANN is trying to solve is the vanishingly small possibility that somebody attempts to cybersquat the United Nations Entity For Gender Equality And The Empowerment Of Women (UNWOMEN) or the Postal Union Of The Americas Spain And Portugal (PUASP).

A lot of it is also in direct opposition to what the GNSO WG plans to recommend, according to chair Phil Corwin and the current draft of the WG’s recommendations.

The WG currently plans to recommend that IGOs should be allowed to use the existing URS and UDRP mechanisms to take down or take over domains that use their acronyms in bad faith. It does not currently seem to recommend anything related to Trademark Claims.

A foundational disagreement relates to the status of IGOs under the law. While IGOs in the small group seem to think they are in a special category of entity that is not subject to regular trademark law, the WG hired expert legal counsel that determined the contrary.

Corwin, in his initial response to the small group letter, said that the implications of the debate go beyond how IGO acronyms should be protected.

IGOs carried out a “near boycott” of the GNSO PDP discussions, he wrote, preferring instead to talk to the small group “behind closed doors”. He wrote:

we continually urged members of the GAC, and IGOs, to participate in our WG. That participation was so sporadic that it amounted to a near-boycott, and when IGO representatives did provide any input they stressed that they were speaking solely as individuals and were not providing the official views of the organizations that employed them.

Of course, why should they participate in the GNSO policy processes when they are permitted to pursue their goals in extended closed door discussions with the Board, and when the Board seeks no input from the GNSO in the course of those talks?

He directly linked the timing of the small group report to the expiration last Friday of ICANN’s IANA functions contract with the US Department of Commerce, and suggested that the IGO acronym issue could be a litmus test for how ICANN and governments function together under the new oversight regime.

I note that transmission of the letter has been delayed until after the completion of the IANA transition, and that the post-transition role of governments within ICANN was a central controversy surrounding the transition.

What is at stake in this matter goes far beyond the relatively rare instance in which a domain registrant infringes upon the name or acronym of an IGO and the IGO seeks relief through a CRP [Curative Rights Protection mechanism]. The larger issue is whether, in a post-transition ICANN, the GAC and the UN agencies that comprise a large portion of IGOs, will participate meaningfully in GNSO policy activities, or will seek their policy aims by bypassing the ICANN community and engaging in direct, closed door discussions with the Board.

The financial effects of this seemingly interminable debate on the gTLD industry are probably pretty minor.

Currently, all new gTLDs have temporarily blocked, from launch, all of the IGO acronyms in question. That’s roughly 200 domains per gTLD that could otherwise be sold.

Many of the strings are three, four and five-letter acronyms that could fetch “premium” prices in the open market (though, in my judgement, not much more than a couple hundreds bucks in most cases).

A small number of the acronyms, such as WHO and IDEA, are potentially more valuable.

Off the top of my head and the back of an envelope, I’d put the cost to the industry as a whole of the IGO acronym blocks probably somewhere in the very low millions.

The harms being prevented are also very minor, in my view. With a small handful of exceptions, the IGOs in question are not attractive cybersquatting targets.

But, as is so often the case in ICANN matters, the arguments in this case boil down to matters of law, principle and process much more than practical impact.

Next new gTLD round could start sooner than expected

Kevin Murphy, August 11, 2016, Domain Policy

The ICANN board of directors is wondering whether the next new gTLD application round should kick off sooner than expected.

Chair Steve Crocker reached out to the Generic Names Supporting Organization this week to ask whether the next round could start before all GNSO policy work has been completed.

Or, he asked, are there any “critical issues” that need to be resolved before ICANN starts accepting more applications.

Akram Atallah, head of ICANN’s Global Domains Division, said in May that 2020 is the earliest the next round could feasibly begin, but Crocker’s letter this week (pdf) suggests that that date could be brought forward.

Crocker asked “whether a future application process could proceed while policy work continues”.

There are a number of reviews that ICANN has committed to carry about before the next round starts.

There’s a consumer choice, competition and trust survey to be completed, for example, and a review of trademark protection mechanisms.

Atallah said in may that these would likely be complete by the end of 2017.

But the GNSO is also conducting policy work designed to highlight flaws and inefficiencies in the current 2012 and recommend changes and improvements.

It’s this so-called GNSO Policy Development Process (PDP) Working Group on New gTLD Subsequent Procedures (or NewgTLD-WG) that Crocker is interested in. He wrote:

assuming all other review activities are completed, it would be helpful to understand whether the GNSO believes that the entirety of the current Subsequent Procedures PDP must be completed prior to advancing a new application process under the current policy recommendations. The Board is cognizant that it may be difficult to provide a firm answer at this stage of the process as the reviews are still underway and the PDP is in its initial stages of work, but if any consideration has been given in relation to whether a future application process could proceed while policy work continues and be iteratively applied to the process for allocating new gTLDs, or that a set of critical issues could be identified to be addressed prior to a new application process, the Board would welcome that input.

The current plan for the NewgTLD-WG is to wrap up two years from now, in the third quarter of 2018 (though this may be optimistic).

Members of the group seem to think that we’re looking at a post-2020 next round with 10,000 to 15,000 applications.

It’s difficult to imagine a second round (or fourth, if you’re a pedant) beginning a whole lot earlier than 2020, given the snail’s pace ICANN and its community moves at.

The WG was chartered over half a year ago and the conversations going on are still at a depressingly high level.

Perhaps Crocker’s letter is an early indication that board will not be the significant drag factor on the process.

Burr to replace Tonkin on ICANN board

Kevin Murphy, April 19, 2016, Domain Policy

ICANN lifer Becky Burr is to replace Bruce Tonkin on the ICANN board of directors when his term expires in November.

She’ll take the seat reserved for the Contracted Parties House of the Generic Names Supporting Organization, following a vote by registries and registrars a few weeks ago.

Tonkin, CTO of Aussie registrar Melbourne IT, has held the seat for the last nine years. He’s limited to three consecutive three-year terms under ICANN bylaws.

Burr, a lawyer by trade, is currently chief privacy officer at TLD registry Neustar, a position she has held since 2012.

Before that, she was a partner at the law firm Wilmer Hale.

But way back in 1998, in a senior role at the US National Telecommunications and Information Administration, she was one of the key people responsible for ICANN’s creation under the Clinton administration.