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ICANN makes GAC’s Category 1 new gTLD advice less stupid

Kevin Murphy, November 6, 2013, Domain Policy

After six months, ICANN is finally giving its Governmental Advisory Committee what it wants. Kinda.

The New gTLD Program Committee has quietly sent its plan to implement the GAC’s so-called “Category 1” advice on new gTLDs, which called for regulated gTLDs where applicants had applied for open namespaces.

But it’s rewritten the advice in such a way that it’s unlikely to win many fans in either camp, causing headaches for applicants while also falling short of giving the GAC everything it wanted.

In a letter to GAC chair Heather Dryden, ICANN chair Steve Crocker laid out the NGPC’s plan.

The Category 1 advice, which comprised eight “safeguards” applicable to at least 386 gTLD applications for 174 unique strings, has been rewritten, making it a little more palatable to the majority of applicants.

The list of strings has also been cut in two, with the 42 strings considered most often linked to highly regulated industries taking the brunt of the regulation.

These 42 may or may not find their business models killed off, but are certainly facing more friction as a result of the NGPC’s decision:

.abogado, .attorney, .autoinsurance, .bank, .banque, .bet, .bingo, .carinsurance, .casino, .charity (and Chinese IDN), .corp, .cpa, .creditcard, .creditunion, .dds, .dentist, .gmbh, .hospital, .inc, .insurance, .ira, .lawyer., .lifeinsurance, .llc, .llp, .lotto, .ltd, .ltda, .medical, .mutualfunds, .mutuelle, .pharmacy, .poker, .sal, .sarl, .spreadbetting, .srl, .surgery, .university, .vermogensberater, .versicherung

Each of these registries is going to have to sign up to eight new mandatory Public Interest Commitments, obliging them to engage with the industries associated with their strings, among other things.

And while the GAC wanted these strings to be limited to credential-holding members of those industries, ICANN seems to be giving the applicants much more implementation wiggle room.

The GAC had originally called for all 386 Category 1 registries to:

Establish a working relationship with the relevant regulatory, or industry self-regulatory, bodies, including developing a strategy to mitigate as much as possible the risks of fraudulent, and other illegal, activities.

But ICANN has reinterpreted the advice to make it a bit less onerous on applicants. It will also only affect 42 strings. The advice, now rewritten as a PIC, reads:

Registry operators will proactively create a clear pathway for the creation of a working relationship with the relevant regulatory or industry self-regulatory bodies by publicizing a point of contact and inviting such bodies to establish a channel of communication, including for the purpose of facilitating the development of a strategy to mitigate the risks of fraudulent and other illegal activities.

Does that PIC mean registries will actually be obliged to listen to or give policy-making power to the relevant industries on a formal basis? It’s ambiguous enough that the answer might easily be no.

The GAC had also called for some Category 1 gTLDs to become restricted to card-carrying members of the industry or industries the strings relate to, saying in Beijing:

At the time of registration, the registry operator must verify and validate the registrants’ authorisations, charters, licenses and/or other related credentials for participation in that sector.

ICANN has basically rejected that advice, replacing it instead with the much more agreeable (to registries) text:

Registry operators will include a provision in their Registry-Registrar Agreements that requires Registrars to include in their Registration Agreements a provision requiring a representation that the Registrant possesses any necessary authorisations, charters, licenses and/or other related credentials for participation in the sector associated with the Registry TLD string.

You’ll notice that the ICANN version does not require credentials to be provided at the point of registration. In fact, the PIC seems to require nothing more than a check-box that the registrant must click.

This is obviously tolerably good news for applicants that had proposed unrestricted policies for their gTLDs — they no longer face the kiss of death in the registrar channel that the GAC’s version would have created — but let’s not pretend it’s what the GAC had asked for.

Again, it only applies to the 42 strings ICANN has identified as particularly broadly regulated.

These registries are not getting an easy ride, however. They will have to enforce a post-registration regime of verifying credentials in response to complaints. The new ICANN PIC reads:

If a Registry Operator receives a complaint expressing doubt with regard to the authenticity of licenses or credentials, Registry Operators should consult with relevant national supervisory authorities, or their equivalents regarding the authenticity.

It’s implied, but not stated, that uncredentialed registrants should lose their domains. Again, the ICANN version of the GAC advice may be less of a nightmare to implement, but it’s still very vague indeed.

For any Category 1 applicant that is not on the sub-list of 42 sensitive strings, there will be three new PICs to adopt.

These all instruct the registry to require registrars to get registrants to agree to abide by “all applicable laws”. It’s the kind of stuff that you usually find in registration agreements anyway, and doesn’t appear at first look to present any hugely problems for registries or registrars.

Overall, ICANN seems to have done a pretty good job of making the Category 1 advice less onerous, and applicable to fewer applicants, than the GAC originally wanted.

But applicants for the 42 strings most heavily affected still face some vague contractual language and the very real possibility of industry complaints in future.

Hundreds of new gTLD applicants still in GAC limbo

Kevin Murphy, September 16, 2013, Domain Policy

A little over five months after the Governmental Advisory Committee issued its controversial Beijing communique, demanding strict controls over hundreds of new gTLDs, ICANN has still not taken any action.

ICANN’s New gTLD Program Committee “accepted” a bunch of the GAC’s advice on new gTLDs during its meeting last week, but yet again punted the most crucial issue — how to handle the so-called “Category 1” strings.

In a resolution last Tuesday, published on Friday, the NGPC addressed 21 pieces of GAC advice from the July Durban meeting but took no action on the April Beijing advice.

One application was killed off as a result — Better Living Management’s bid for .thai — on geographic grounds.

Applications for .spa, .yun, .广州 (.guangzhou), and .深圳 (.shenzhen), which are all geographic strings, have been put on hold “until the agreements between the relevant parties are reached”.

Amazon’s applications for its brand in Latin and other scripts are also on hold again pending ICANN’s review of its lengthy response to the GAC’s decision to object to them in Durban.

Two applications — .date and .persiangulf — which had raised geographic concerns in Beijing have been given leave to proceed after the GAC decided not to object in Durban.

Applications for .wine, .vin, .ram and .indians appear to be safe, but it’s not 100% clear based on the NGPC’s resolution.

Category 1 strings

“Category 1” strings were those strings that the GAC deemed applicable to “Consumer Protection, Sensitive Strings, and Regulated Markets”.

The GAC wants these gTLDs, if approved, to be subject to oversight by regulatory or self-regulatory bodies and to implement strict security controls.

The Category 1 advice has been criticized by many, including members of the NGPC, for being too vague to implement and for unfairly moving the goalposts on applicants at the last minute.

In Durban, the NGPC had indicated that it was very unhappy with the Category 1 advice.

Last week, it chose to essentially ignore the Beijing communique in which the Category 1 advice was delivered, and instead “accept” the Category 1 advice from Durban, which simply stated:

The GAC will continue the dialogue with the NGPC on this issue.

The NGPC in response stated in an annex to its resolution:

The NGPC accepts this advice. The NGPC looks forward to continuing the dialogue with the GAC on this issue.

So the 500-odd applications captured by Category 1 are still in limbo, unable to sign registry contracts with ICANN, pending the outcome of these GAC-NGPC negotiations.

On the upside, it looks like ICANN is keen to get the issue resolved before ICANN’s next public meeting, which takes place in Buenos Aires in November. ICANN said:

The NGPC and staff are working with the GAC to identify a time and place for further dialogue on these items.

Community support

The NGPC also addressed the GAC’s demands relating to community support for applications. In doing so, it again deployed its tactic of “accepting” the letter of the GAC’s advice whilst plainly rejecting it in spirit.

The GAC had said in Durban:

the GAC advises the ICANN Board to consider to take better account of community views, and improve outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date.

The GAC was basically worried about the new gTLD program not giving sufficient weight to informal objections from organizations that could be affected by applied-for strings.

The NGPC responded:

The NGPC accepts this advice. The NGPC will consider taking better account of community views and improving outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date. The NGPC notes that in general it may not be possible to improve any outcomes for communities beyond what may result from the utilization of the AGB’s community processes while at the same time remaining within the existing framework.

In other words, due to the inclusion of the phrase “within the existing framework”, ICANN can do absolutely nothing else to address the GAC’s concerns and can still say it “accepted” the advice.

The NGPC had previously used the same tactic to avoid dealing with the GAC’s Beijing advice on giving “communities” the ability to kill off applications without going through the proper channels.

Wine gTLDs get a pass as GAC fails to agree

Kevin Murphy, September 12, 2013, Domain Registries

Applicants for wine-related gTLDs will no longer be opposed by the Governmental Advisory Committee, it has emerged.

Writing to ICANN chair Steve Crocker this week, GAC chair Heather Dryden said that the GAC had failed to reach an agreement on whether to issue formal Advice against the applications.

Three .wine applicants and one .vin applicant are affected.

Some governments are concerned about strings at the second level because quite often a word many people associate primarily with a type of wine is also the protected name of the wine-producing region.

Champagne is probably the best-known example of this.

Nevertheless, the GAC couldn’t reach agreement on whether to provide formal advice to ICANN on this topic, so the applications will be free to proceed along the new gTLD program’s track.

GAC to kill off .amazon

The Governmental Advisory Committee has agreed to file a consensus objection against Amazon’s application for .amazon.

The decision, which came this morning during a GAC session at the ICANN meeting in Durban, also applies to the company’s applications for .amazon in non-Latin scripts.

The objection came at the behest of Brazil and other Latin American countries that claim rights to Amazon as a geographic term, and follows failed attempts by Amazon to reach agreement.

Brazil was able to achieve consensus in the GAC because the United States, which refused to agree to the objection three months ago in Beijing, had decided to keep mum this time around.

The objection will be forwarded to the ICANN board in the GAC’s Durban communique later in the week, after which the board will have a presumption that the .amazon application should be rejected.

The board could overrule the GAC, but it seems unlikely.

It’s the second big American brand to get the GAC kiss of death after Patagonia, which withdrew its application for .patagonia last week after the US revealed its hands-off approach for Durban.

Both Amazon and Patagonia slipped through the standard Geographic Names Panel check because they’re trans-national regions, whereas the panel used lists of administrative divisions to determine whether strings were geographic.

Amazon the company was named after the region or river in Latin America, which was in turn named after a culture of female warriors originating from, according to Herodotus, Ukraine.

It’s not known whether Ukraine had a position on the objection and Herodotus was unavailable for comment.

This is how stupid the GAC’s new gTLDs advice is (part two)

Kevin Murphy, July 15, 2013, Domain Policy

When Donuts and ICANN signed a new gTLD contract for .游戏, on a stage in front of hundreds of people at ICANN 47 this morning, it made a mockery of the relationship between ICANN and the GAC.

游戏 is the Chinese for “game” or “games”. It was an uncontested application with no objections and, importantly, no Governmental Advisory Committee advice standing in its way.

Donuts got lucky. The six companies that have applied for .game or .games in English are all currently prohibited from entering into contract negotiations with ICANN because they did receive GAC advice.

When the GAC drafted its “Advice on New gTLDs” in Beijing three months ago, it included a long but “non-exhaustive” set of strings that it said needed extra “safeguards” on security and community support.

ICANN has called these strings the “Category 1” list. It’s already been the subject of some strong discussion with the GAC at the meeting in Durban, which kicked off over the weekend.

So was it the GAC’s intention with Category 1 to introduce a language bias into the new gTLD program? Did it intend to give Chinese-script strings special privileges over ASCII-based languages?

If there was a sensible rationale for including .game/.games on the Category 1 list, why didn’t it apply to .游戏?

Or did the GAC simply not give its Beijing advice the care and attention it deserved?

Based on sessions in Durban over the weekend, the latter explanation appears to be closer to the truth.

“Vague and unimplementable”

At session between the GAC and ICANN’s board-level New gTLD Program Committee yesterday, the GAC heard in the strongest terms (within the bounds of polite discourse) how silly its Beijing advice was.

The session kicked off with NGPC member Chris Disspain delivering a witheringly but necessarily blunt assessment of the “Category 1” list and the associated safeguards.

He first noted that ICANN already rejected the GAC’s advice to make certain strings mandatory “community” gTLDs — something that would have had the same effect as the Beijing advice — back in 2011.

The GAC Early Warning system was introduced instead, he said, to give governments the ability to work with or object to applicants for specific strings that they were worried about.

Disspain continued with a catalog of criticisms against the Category 1 advice:

The difficulties we see at the moment are that the categories of strings are broad and undefined. There’s no principled basis for distinguishing certain categories and strings.

Generic terms are in the same category as highly regulated industries. Some strings have segments that are both licensed and unlicensed.

It’s difficult to determine relevant regulatory agencies and self-regulatory organizations. Some strings refer to industries that may be sensitive or regulated in a single or a few jurisdictions only.

The safeguard advice items three to eight create obligations that are vague and unimplementable.

And these are the outcomes that we sought to avoid when we rejected the advice in the first place. And we agreed to put in place the Early Warning system so that governments could deal directly with applicants if they had issues with the string.

He received some push-back from GAC members, some of whom — insisting that the Beijing communique was well-considered and easily understood — appear to be in denial.

“In the end, you should come with us, trying to implement,” the member for Italy said. “Because I’m sure that you well understood the meaning of this Annex 1.”

In response, Disspain reiterated that the NGPC really doesn’t understand what the GAC wants and really doesn’t understand how it came up with the Category 1 list in the first place.

“We’re unclear how we could implement at all some pieces of the advice,” he said. “The issue for us is not so much that there could be other names that could be added to the list but rather there are names that appear on the list that we don’t understand why they’re there in the first place.”

Now what?

Impasse thus reached, much of the discussion during the hour-long session focused on ways to potentially move the process forward, with participants acknowledging they’re in “uncharted territory”.

Switzerland suggested — contrary to what is plainly spelled out in the Applicant Guidebook, which asks the GAC to comment on specific applications — that the GAC didn’t think that its job was to come up with a definitive list of worrying strings. He said:

Initially, we did not think that it’s the task of the GAC to put together a finite list of sensitive strings, but we have been informed that it would be helpful to come up with concrete names.

So don’t take this list as a list that has been worked out over months and years and every TLD has been tested. These are examples, as we identified it in a rather short time.

There might be a few names that are not on the list that you could easily also add. There are some inconsistencies in that sense. But this is not meant to be a finite, absolute list.

The UK rep said he was disappointed with the “negative” tone of the NGPC’s response to the safeguard advice, but also suggested that the next step might be to come up with a proper list of strings.

“I think the next step forward is for the committee to try and prepare a first draft list for consultation with the whole community,” he said. “And we, the governments, we could obviously seize the opportunity to contribute to that consultation.”

The European Commission provided a statement that its representative said represented the views of EU states on the GAC. The statement said that the Beijing list should be an “at-minimum” list.

European GAC members consider the role of the GAC in this discussion is to provide high-level clarifications regarding the Beijing GAC advice rather than precise implementation means.

We would also like to note that the list of sensitive strings provided in the Beijing communique is a non-exhaustive one… meaning the list should be considered an at-minimum list.

What does this all mean for applicants?

Based on yesterday’s hour-long discussion, ICANN can surely be no closer to understanding which applications are affected by the GAC advice and presumably still doesn’t have a clue what some of it means.

This afternoon, during another session in Durban, program manager Christine Willett said that ICANN is using the Category 1 list published in Beijing when deciding which applicants can be contracted with.

“The NGPC is still considering the Category 1 advice and we have no direction or indication from them yet that a definitive list will be created,” she said.

I can’t see it being resolved this week, and inter-sessional meetings are very rare, so we could now be looking at Buenos Aires — November — before any of this gets sorted out.

For applicants who were — it now seems — selected at random to appear on the Beijing list, they’re facing months more delay while applicants that were not included are free to sign registry contracts today.

Is this fair?

Is it fair to allow applicants that were inexplicably excluded from the GAC’s Beijing list to go ahead and contract with ICANN, while others that were inexplicably included are delayed by many more months?

Is it fair that some applications will get bumped up the queue to delegation just because the GAC didn’t spend enough time thinking about its task?

How can ICANN be certain at contracting that any application is free of GAC advice, when the GAC has made it clear that it expects its list of strings to grow?

I asked ICANN CEO Fadi Chehade some of these questions during a press conference this afternoon and he pointed out that there are mechanisms in place in the Registry Agreement to allow future GAC advice to be addressed.

If it indeed the case that Donuts, for example, might have to add some safeguard commitments to its already signed .游戏 contract, why prevent the .game and .games applicants from signing contracts too?

Wouldn’t it be fairer to delay all new gTLD applications, or none at all, rather than relying on a list of strings we now know definitively to be ad hoc and unreliable?