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ICANN brings “loser pays” to domain disputes

Kevin Murphy, April 16, 2011, Domain Registries

ICANN has significantly strengthened brand-owner protections in new top-level domains by proposing, amongst other things, a new “loser pays” model for some cybersquatting disputes.

The Uniform Rapid Suspension process, which is designed to give trademark owners a quick, cheap way to take down obvious examples of cybersquatting, may now occasionally carry a response fee.

According to ICANN’s newly revised Applicant Guidebook, which was published early this morning:

A limited “loser pays” model has been adopted for the URS. Complaints listing twenty-six (26) or more disputed domain names will be subject to an Response Fee which will be refundable to the prevailing party. Under no circumstances shall the Response Fee exceed the fee charged to the Complainant.

In other words, if a somebody registers more than 25 domains that appear to infringe upon the trademarks of a single company, they will have to pay a few hundred dollars, refundable, if they want to defend their case. Judging from UDRP history, this will likely apply to very few people.

The number 25 comes from the May 2009 report of ICANN’s Implementation Recommendation Team, which devised many of the new gTLD program’s rights protection mechanisms.

This change is one of several made in the new Guidebook, addressing concerns raised by the Governmental Advisory Committee, which had consulted closely with the IP lobby.

The GAC didn’t get everything it wanted, however. It had asked for repeat cybersquatters to lose their right to respond under the URS, but ICANN declined, citing the need for due process.

But the Guidebook does now also require new TLD registry operators to offer two types of rights protection mechanism during their launch phase, as the GAC had requested.

Whereas earlier drafts mandated either a Trademark Claims service or a Sunrise period, now registries will have no choice: they have to offer both at a minimum.

The Trademark Claims services notifies registrants if they try to register a domain name that matches a trademark registered in a central Trademark Clearinghouse.

The registrant will have to certify that they’re not infringing any rights before they get the domain. If they do register it, the affected trademark holder will receive a notification that the domain has been registered and can choose to take action such as filing a URS claim.

The idea behind the service is to deter cybersquatters, possibly reducing brand owners’ costs from having to defensively register their names in all new TLDs.

The Sunrise period, which is now also mandatory, is not entirely dissimilar to the sunrise periods we’ve come to expect from new TLD launches over recent years.

The new Guidebook states that the Trademark Claims service must be offered for at least 60 days after a new TLD enters general availability and the Sunrise must be at least 30 days before.

The fact that both services are now mandatory has helped ICANN address the thorny question of what should constitute a valid trademark.

Earlier drafts of the Guidebook required trademarks to have been subject to “substantive review” – a check by a national authority that the trademark is for real and in use.

The worry was that speculators could game the system by picking up large numbers of trademarks in countries that give them away like candy. It’s happened before.

But the review requirement was criticized by the GAC and others as it excluded trademarks in much of the world outside of the US.

In response to these criticisms, ICANN has removed the reference to substantive review. Instead, the yet-to-be-decided manager of the Trademark Clearinghouse will be given the task of validating that each trademark submitted is legit.

Companies need only submit a declaration and a single piece of evidence of use in order to get into the Clearinghouse, thus enabling them to partake of the Sunrise.

No such validation will be required in order to participate in the Trademark Claims service, though brand owners will need to be listed in the Clearinghouse for both mechanisms.

Evidence of use will also be needed to file URS complaints, but that can be done separately at the time of filing, with no need for a Clearinghouse registration.

ICANN chairman Peter Dengate Thrush, himself an IP lawyer, once stated, possibly in jest, that no matter what you do, you can be certain that IP lawyers will demand more protections.

Whether the rights protections mechanisms included in the Guidebook are now sufficient to calm trademark interests’ nerves remains to be seen.

ICANN gives governments powers over new TLDs

Kevin Murphy, April 16, 2011, Domain Registries

ICANN has made some significant concessions to government demands in the newly published revision of its new top-level domains Applicant Guidebook.

After lengthy consultations with its Governmental Advisory Committee over the last few months, ICANN has updated the rulebook to address the vast majority of GAC concerns.

We’ve gone from the “proposed final Applicant Guidebook” published in November to the “April 2011 Discussion Draft” that appeared on the ICANN web site in the wee hours of this morning.

On first perusal, it appears that ICANN has walked the fine lines between GAC advice, hard-fought community consensus and common sense more or less successfully.

While the new Guidebook gives plenty of ground to the GAC, making it a more integral part of the new TLDs approval process, it avoids adopting some of its more problematic requests.

In this post, I’ll look at the powers ICANN has given to governments to object to TLDs.

Early Warning System

While ICANN has sensibly not given individual governments the right to veto TLDs they are not happy with, they do get substantially more input into the approval process than in previous drafts.

The major update to the Guidebook is a new Early Warning system that will allow governments to pre-object to TLDs they don’t like.

An Early Warning, which can only be filed by the GAC chair, is “an indication that the application is seen as potentially problematic by one or more governments.”

Applicants in receipt of such a warning will have 21 days to decide whether to drop out of the process, receiving a $148,000 refund, 80% of their $185,000 application fee.

But they won’t have to. The warning is just a heads-up that the GAC or some of its members may formally object at a later stage. A warning does not represent a GAC consensus position.

The Early Warning process will run for 60 days, at the same time as the public comment period that begins the day the applications are published.

Advice of Doom

Any applicants that decide to ignore such a warning face the possibility of receiving a formal GAC objection, which could come at any point in the first seven months after the applications are published.

This is now being called “GAC Advice on New gTLDs”. It could be quite a powerful tool:

GAC Advice on New gTLDs that includes a consensus statement from the GAC that an application should not proceed as submitted, and that includes a thorough explanation of the public policy basis for such advice, will create a strong presumption for the Board that the application should not be approved.

This is pretty close to a GAC veto, but it crucially requires GAC consensus. The Guidebook explains:

GAC Advice on New gTLDs should identify objecting countries, the public policy basis for the objection, and the process by which consensus was reached.

Even if the GAC reaches consensus, the ICANN board will be able to overrule its objections in accordance with its bylaws, in much the same way it just did with .xxx (in practice, I suspect .xxx may ultimately prove a fairly unique exception to the rule).

The Guidebook indicates that any wishy-washy, non-consensus, politician-speak advice given by the GAC will not be considered grounds for rejecting an application. The objection must be specific, grounded, and it must have support.

Importantly, ICANN has not conceded to the GAC’s request to allow applicants to amend their applications to remedy the GAC’s concerns.

As I noted earlier in the week, this could have led to companies gaming the system, and ICANN has ruled out amendments for precisely that reason.

Freebies

Individual governments will of course be allowed to object to any application using any of the other procedures that the Guidebook allows, such as the Community Objection.

ICANN’s problem is that these processes carry third-party fees, and governments don’t think they should have to pay these fees (for some reason that’s never been adequately explained).

Addressing this concern, the new Guidebook says that ICANN will cover each national government to the tune of $50,000 to fund a single objection.

That’s a total of potentially well over $1 million, funded from ICANN’s reserves. ICANN expects that governments will coordinate their objections to limit its costs.

Overall, it appears that ICANN has addressed pretty much everything the GAC wanted in terms of objections procedures. With a couple of reasonable exceptions, the GAC has received what it asked for.

Members may not be completely happy with ICANN’s decrees on what form GAC advice must take in order to have a useful impact, but in general it seems that this could well now be a closed issue.

In my next post, I’ll look at how intellectual property protection changes in the new Guidebook.

Governments dig in over new TLD objections

Kevin Murphy, April 13, 2011, Domain Registries

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.

ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.

The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.

Yeah, it’s getting a bit complex.

In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.

This is a preliminary analysis.

Controversial TLDs

The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.

ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.

The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.

The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.

The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.

Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.

Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.

Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”

This seems unworkable.

Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.

The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.

If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?

If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.

Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.

This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.

Trademark Protection

Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.

Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?

From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.

Registrar-Registry Cross Ownership

ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.

Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.

But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs

Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.

But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.

The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.

The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.

The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.

Law Enforcement

The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.

This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.

Geographic Names

If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.

The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.

If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.

More Delays?

The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.

If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.

It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.

But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.

The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.

Why ICANN’s CEO did not vote on .xxx

Kevin Murphy, April 11, 2011, Domain Policy

President and CEO Rod Beckstrom has explained his decision to abstain from voting on ICM Registry’s .xxx top-level domain when it came before the ICANN board last month.

As expected, Beckstrom provided substantially the same explanation for his abstention as he did at the Brussels meeting last June – not on the merits of .xxx, but because he had legal concerns.

Specifically, he abstained because he objected to one of the majority findings of an Independent Review Panel, which forced .xxx back to the table last year after ICANN had tried to reject it.

Beckstrom wrote, in a recently published statement (pdf):

while I accept the contribution to ICANN’s accountability and transparency provided by the existence and the use of the independent panel review process, I nonetheless remain concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs.

This refers to the “business judgment rule”, a piece of California law under which courts give deference to the judgment of company directors, unless their decisions were made in bad faith.

If an IRP panel – the last port of appeal for companies upset with ICANN’s decisions – were required to use this rule, it would substantially raise the bar for a successful complaint.

But the panel in the case of ICM Registry versus ICANN (the only such panel to date) decided, by a 2-1 vote, that ICANN’s actions should be “appraised not deferentially but objectively.”

This allowed ICM to win its case by merely showing ICANN had acted outside its bylaws, and not necessarily in bad faith.

The dissenting IRP panelist, Dickran Tevrizian, wrote: “The rejection of the business judgment rule will open the floodgates to increased collateral attacks on the decisions of the ICANN Board of Directors”.

However, the IRP did not specifically rule that ICANN “should not use business judgment” as Beckstrom’s statement suggests, just that the IRP was not obliged to defer to it.

Beckstrom’s statement also gives a shout-out to the Governmental Advisory Committee:

In addition, I note the concerns of the GAC, which while not expressed as a clear decision, was nonetheless directional.

As I previously blogged, ICANN approved the .xxx contract over the objections of some members of the GAC, using the fact that the GAC’s official advice was vague enough to be worked around without explicitly rejecting it.

Beckstrom, incidentally, did not even sign the .xxx contract with ICM, which I believe is a first for an ICANN registry contract. It was instead signed by general counsel John Jeffrey.

(via InternetNews.me)

New TLDs have a timetable again

Kevin Murphy, March 20, 2011, Domain Registries

ICANN has approved a timeline for the introduction of new top-level domains again. Barring surprises, it looks like this could be the final one.

These are the key dates in the timetable passed by the ICANN board of directors at its meeting here in San Francisco on Friday:

March 25 – Governmental Advisory Committee feedback on the San Francisco consultation due to be provided to ICANN for consideration.

April 15 – ICANN will publish the relevant edited extracts of the final Applicant Guidebook for 30 days of public comment.

May 20 – ICANN’s final consultation with the GAC. This will be held via teleconference and it’s not clear yet if observers will be allowed on the call.

May 30 – ICANN publishes the final Applicant Guidebook.

June 20 – The ICANN board of directors will meet on the first day of the Singapore public meeting to (presumably) approve the Guidebook.

June 22 – Large quantities of free alcohol consumed at the Singapore meeting’s Gala event.

This timetable seems to give plenty of time for the Guidebook’s remaining kinks to be worked out, and there seems to be considerable resolve in ICANN’s leadership to get this thing put to bed by Singapore, which will be Peter Dengate Thrush’s last as ICANN chair.

New TLDs timeline to launch

There are still a couple of questions remaining, however. It’s not yet clear when the first-round application window will open and therefore when the first new TLDs will be available.

ICANN has always said that the 60 to 90-day window would open after ICANN has concluded four months of marketing and global outreach – it wants to be certain that nobody can complain that they lost their brand because didn’t know the new gTLD program existed.

It’s been stated that the plan was to kick the outreach program off shortly after the Guidebook is approved, but there was some speculation in the halls at the San Francisco meeting last week suggesting that it could actually coincide with its publication.

If that happens, that would knock just a few weeks off the wait before applications open, so it’s nothing to get particularly excited about.

It seems we’re looking at the application window opening in early November at the latest, which suggests to me ICANN may opt for a 90-day window, in order to avoid having the deadline for applying falling during or just after the holiday period.

With the least-controversial applications expected to take at least eight months to process, we’re looking at October 2012 before the first new TLDs are delegated to the root.

With sunrise periods, landrush periods, marketing and so on, I doubt any new TLDs will be generally available before the first quarter of 2013. Single-user “.brands” could go into use sooner.

And of course, if somebody takes ICANN to court and successfully enjoins it, this may all wind up looking woefully optimistic.

How ICANN overruled governments on .xxx

Kevin Murphy, March 19, 2011, Domain Registries

In approving the .xxx top-level domain, ICANN has for the first time explicitly overruled the wishes of international governments, as represented by its Governmental Advisory Committee.

In its rationale (pdf) for the decision, ICANN explains why it chose to disregard the GAC’s views.

There are two pieces of GAC advice that have been quite important. One was delivered in Wellington in 2007, the other was delivered yesterday

The Wellington GAC Communique noted that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”

That was repeated during a terse, 10-minute “bylaws consultation” on .xxx yesterday, during which the the GAC also said “there is no active support of the GAC for the introduction of a .xxx TLD”.

ICANN chose to reject (kinda) both of those pieces of advice, on the basis of a quite literal interpretation — that GAC support was unnecessary and the advice was not specific enough:

There is no contradiction with GAC advice on this item. Active support of the GAC is not a required criteria in the 2004 sTLD round. Further, this is not advice from the GAC either to delegate .XXX or to not delegate .XXX, and therefore the decision to delegate .XXX is not inconsistent with this advice.

Unfortunately, this gives pretty much no clue to how the board will treat minority GAC positions in future, such as when some governments object to new gTLDs.

But companies planning to apply for potentially controversial TLDs can take heart from other parts of the rationale.

For example, the board did not buy the notion that .xxx should be rejected because some countries are likely to block it.

Saudi Arabia has already said it intends to filter out .xxx domains.

The GAC was worried that this kind of TLD blocking would lead to a fragmented root and competing national naming systems, but ICANN wasn’t so sure. The rationale reads:

The issue of governments (or any other entity) blocking or filtering access to a specific TLD is not unique to the issue of the .XXX sTLD. Such blocking and filtering exists today. While we agree that blocking of TLDs is generally undesirable, if some blocking of the .XXX sTLD does occur there’s no evidence the result will be different from the blocking that already occurs.

It’s been noted that some Muslim countries, for example, block access to Israel’s .il domain.

One director, George Sadowsky, dissented from the majority view, as is his wont. In a lengthy statement, he named stability as one reason he voted against .xxx.

He said “the future of the unified DNS could be at stake” and “could encourage moves to break the cohesiveness and uniqueness of the DNS”.

He drew a distinction between the filtering that goes on already and filtering that would come about as a direct result of an ICANN board action.

He was, however, in the minority, which makes proposed TLDs such a .gay seem likely to get less of a rough ride in future.

ICANN staff grilled over new TLDs

Kevin Murphy, March 13, 2011, Domain Registries

ICANN’s San Francisco meeting kicked off this morning with staff members responsible for the new top-level domains program answering – and trying to answer – stakeholder questions.

The short version: it’s still not clear what the end result of San Francisco will be when it comes to new TLDs.

The big deal this week is ICANN’s ongoing consultation with its Governmental Advisory Committee, which remains the biggest hurdle before ICANN can approve the program.

GNSO stakeholders wanted to know the current state of play with this consultation, and how close ICANN is to wrapping up policy development and launching the new TLD program.

A key question is whether the two days of talks the board has scheduled for this week count as the final GAC consultation called for in ICANN’s bylaws.

If they are, the board and the GAC could wrap up their negotiations before the board meets on Friday, and the program is one step closer to approval. ICANN wants this.

If they’re not, we could be looking at further GAC talks stretching on into the weeks or months between now and the Singapore meeting in June. The GAC seems to want this.

ICANN senior vice president Kurt Pritz said that the board and GAC met for one hour yesterday, but that they still have not agreed on the “bylaws” designation.

He said that the board “has a sense of urgency” about approving the program as soon as possible, and that the GAC is newly “energized”.

Staff were asked, by VeriSign’s Chuck Gomes and Minds + Machines’ Antony Van Couvering, whether such a consultation is needed at all.

After all, as has been discussed in articles on CircleID and .nxt recently, there’s no mention in the ICANN bylaws of a “consultation” per se.

Deputy general counsel Dan Halloran said that this is an area still open for discussion, but indicated that reaching common ground on the substantive issues is currently the priority.

There seems to be a feeling that the current talks represent not only a necessary step in approving new TLDs, but also a landmark piece of cooperation in the sphere of internet governance.

On the substantive issues, ICANN has currently marked each of the 80 points the GAC has made with the designation 1a, 1b or 2, depending on whether agreement has been reached, only reached in principle, or has not been reached at all.

The focus this week is going to be on the 23 “2s”. These are the issues, Pritz said, where ICANN has determined that to agree with the GAC would run contrary to the GNSO’s consensus positions.

Philip Corwin of the Internet Commerce Association, which represents domain investors, wanted to know whether “1a” topics are currently locked – the ICA is unhappy with a 1a concession ICANN has made regarding the Uniform Rapid Suspension policy.

The answer from staff was basically yes — a 1a is where ICANN’s board and staff think “we’re done”, Pritz said.

The plan for the rest of the week is to hold open discussions on the new TLD process on Monday and Wednesday, with corresponding bilateral GAC-board sessions on Tuesday and Thursday.

Stakeholder groups have been invited to make statements before and to inform these sessions.

ICANN to skip stakeholders for more GAC talks

Kevin Murphy, March 11, 2011, Domain Policy

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

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

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

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

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

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

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

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

Is .gay now safe from government blocking?

Kevin Murphy, March 6, 2011, Domain Policy

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

I think they’re looking pretty good.

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

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

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ICANN takes firm stance on new TLD delays

ICANN wants to draw a line under its talks with its Governmental Advisory Committee on new top-level domains at the San Francisco meeting next week.

In a letter to his GAC counterpart (pdf), ICANN chair Peter Dengate Thrush said that he thinks the San Francisco talks should be “final”.

He said that ICANN has agreed to compromise with the GAC wholly or partially on all but 23 of its 80 recommendations for the program.

He also said that these remaining issues should be the focus of the two days the board has set aside to consult with the GAC in San Francisco.

a narrowed focus in San Francisco on the issues that are still in contention would be a best use of the Board and GAC’s time during the two days of consultations, and should represent the final stages in our required consultation.

That appears to contrast with the GAC’s position, expressed in Brussels last week, that the SF talks should not be given the final “bylaws consultation” designation.

Nobody, possibly not even ICANN and the GAC, knows what a “bylaws consultation” consists of, but everybody knows that it is the last thing that needs to happen before the ICANN board can adopt a policy that overrules the formal advice of governments.

ICANN has already officially resolved that the consultation should happen March 17, but GAC chair Heather Dryden objected to that date in an email sent during Brussels.

According to Kieren McCarthy, who has apparently seen the email or parts of it, Dryden wrote:

We believe there is now insufficient time to receive a final written response to our advice from the Board – as well as then analyse and prepare an adequate consensus response from GAC members – to reach resolution of enough outstanding issues such that we could reasonably enter any meaningful bylaws consultation on 17 March in San Francisco.

To delay the consultation would very likely delay the next draft of the Applicant Guidebook, currently set for April 14, and thus the launch of the program itself.

It was not clear from Brussels, but ICANN’s position that March 17 is the date now appears to be firm. The just-published agenda for the March 18 board meeting carries this line item:

Outcome of Bylaw Consultation with the GAC on the new gTLD Program

Things that have not happened generally do not have an “outcome”.

Cybersquatting is the major issue still unresolved. Fifteen of the the 23 areas where the board still disagrees with the GAC deal with trademark protection in new TLDs.

ICANN has agreed to balance the Uniform Rapid Suspension policy – which comes into play following clear-cut cases of cybersquatting – somewhat more in favor of trademark holders.

The amount of money, time and effort required to make a URS case will be reduced, and it’s likely that registrants will have their domains locked by default if they do not respond to the complaint.

Complainants will also get first right of refusal to take over a domain whose registration has been suspended due to a URS proceeding.

But ICANN plans to deny the GAC’s requests for a “loser pays” model and a number of other URS-related tweaks.

The GAC had also advised that the Trademark Clearinghouse database should be expanded to include trademark+keyword registrations. This would allow Kodak, to use the GAC’s example, to prevent cybersquatters from registering not only kodak.tld but also kodakcameras.tld.

Dengate Thrush’s letter says that this “remains an area for discussion”, but ICANN still currently plans to diverge from GAC advice.