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Governments react to Brussels new TLDs meeting

Kevin Murphy, March 4, 2011, Domain Policy

ICANN’s Governmental Advisory Committee has issued an official Communique following its meeting with the ICANN board on new top-level domains, which wrapped up on Wednesday.

While acknowledging the talks were “sometimes challenging”, the GAC said (pdf) the consultation was useful and should be continued during the San Francisco meeting later this month.

There’s not a great deal to work with in the Communique if you like reading tea leaves, but these paragraphs go some way to negate a view I expressed yesterday that the GAC does not want ICANN to overrule its recommendations. With my emphasis:

While fully respecting the Board’s right not to accept GAC advice, the GAC is obliged to ensure that existing rights, the rule of law and the security and protection of citizens, consumers and businesses, and the principle of national sovereignty for governments are all maintained within the new environment, as well as respect for legitimate interests and sensitivities regarding terms with national, cultural, geographic and religious significance. The GAC is committed to taking whatever time is required to achieving these essential public policy objectives.

The GAC envisions that discussion of the issues involved will continue up to and through the ICANN/GAC meeting in San Francisco in March

That’s not incredibly encouraging language if you’re impatiently awaiting the launch of the new TLDs program and were banking on ICANN putting the GAC’s concerns to bed in SF.

But those who count themselves among the intellectual property constituency can probably take heart that the GAC seems to be still committed to fighting its corner.

The GAC now awaits the publication of ICANN’s official compromise positions, post-Brussels, which it plans to take to its members’ respective “stakeholders”.

Government domain veto watered down

Kevin Murphy, February 24, 2011, Domain Registries

A US proposal to grant governments the right of veto over new top-level domains has been watered down by ICANN’s Governmental Advisory Committee.

Instead of giving the GAC the ability to block any TLD application on public policy grounds, the GAC’s official position would now allow the ICANN board of directors to make the final decision.

The move means the chances of a .gay application being blocked, to use the most obvious example, are much lower.

The original US position, which was was leaked last month, read:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

If this policy had been adopted, all potentially controversial TLDs could have found themselves pawns of the GAC’s back-room negotiations.

A petition against the US proposal has so far attracted almost 300 signatures.

The newly published official GAC position is based on the language in the US document, but it has been tempered substantially. It now reads:

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.

GAC advice could also suggest measures to mitigate GAC concerns. For example, the GAC could advise that additional scrutiny and conditions should apply to strings that could impact on public trust (e.g. ‘.bank’).

In the event the Board determines to take an action that is not consistent with GAC advice pursuant to Article XI Section 2.1 j and k, the Board will provide a rationale for its decision.

This still gives the GAC a key role in deciding the fate of TLD applications, but it’s one that can be overruled by the ICANN board.

To use the .gay example, the GAC could still advise ICANN that the string has been objected to by a handful of backward nations, but it would be up to the ICANN board to decide whether homophobia is a useful policy to embrace in the DNS.

The GAC proposals, which you can read here, are not policy yet, however.

ICANN and the GAC will meet in Brussels next week to figure out what GAC advice is worth implementing in the new TLDs program.

UPDATE: via @gTLDNews, I’ve discovered that US Department of Commerce assistant secretary Lawrence Strickling recently addressed this topic in a speech.

He seems to believe that ICANN “would have little choice but to reject the application” if the GAC raised a consensus objection. According to his prepared remarks, he said:

We have proposed that the ICANN Board use the already-existing GAC process to allow governments collectively to submit objections to individual applications to top level domains. The GAC already operates on a consensus basis. If the GAC reaches a consensus view to object to a particular application, that view would be submitted to the Board.

The Board, in its role to determine if there is consensus support for a given application (as it is expected to do for all matters coming before it), would have little choice but to reject the application.

Does he have a point?

ICANN has never explicitly rejected GAC advice; the forthcoming San Francisco meeting is probably going to be the first time it does so.

My reading of the ICANN bylaws is that the board is able to reject GAC advice whenever it wants, as long as it provides its rationale for doing so.

IANA contract up for rebid this week?

Kevin Murphy, February 24, 2011, Domain Policy

As ICANN’s leadership heads off to Brussels to kick off two days of unprecedented talks about new top-level domains with international governments, one nation has an ace up its sleeve.

The US government could be just a day or two away from putting the IANA contract, from which ICANN derives much of its power over domain names, up for public discussion and rebidding.

It’s a matter of record that the IANA contract expires at the end of September, and that it will have to be renewed this year if ICANN wants to continue functioning as it is today.

But could the rebid process kick off as early as this week? It seems likely. The timing is right, especially if the US wants to make a statement.

It was February 21, 2006, five years ago this week, that the US Department of Commerce put out a “Request For Information” that led to the current five-year IANA deal with ICANN being signed.

No new RFI has been released yet. But Commerce could choose to pull rank, putting pressure on ICANN to recognize its authority, by issuing such a document this week.

There’s also the possibility that Commerce will issue not an RFI but instead a “Notice Of Inquiry”, a different type of public procurement procedure notice that would kick off not just a rebidding process but a whole lot of public argument about ICANN’s role in internet governance.

Over the years, it has not been unheard of for the US government to occasionally remind ICANN that it has a special relationship with it, particularly before important governance decisions are made.

Most recently, shortly before the ICANN meeting in Cartagena last December, Larry Strickling, assistant secretary at Commerce, warned that the new TLDs program wasn’t shaping up quite how the US expected.

Next week, Commerce’s Suzanne Sene is one of several Governmental Advisory Committee representatives expected to take a lead role in the ICANN-GAC negotiations.

One way or the other, the IANA contract is up for renewal this year, and the process may soon start that could see the function, hypothetically at least, change hands this September.

IANA, for Internet Assigned Numbers Authority, is responsible for the high-level management of IP address allocations, protocol numbers, and top-level domains.

If a gTLD or ccTLD wants to make a change to its DNS records it has to go to IANA, in much the same way as domain owners such as you and me have to go to our registrar.

IANA decides whether to redelegate a ccTLD to a new registry, for example. When .co liberalized recently, it only did so after IANA approved the transfer of the domain to .CO Internet from a Bogota university.

It’s also responsible for making the call on adding new TLDs to the root. Assigning the IANA function to an entity other than ICANN could, for example, add latency to the go-live date of new TLDs.

For the last decade, IANA has been pretty much an ICANN in-house department. It’s not at all clear to me what would happen if IANA was contracted to a third party, especially one that disagreed with ICANN’s decisions.

Both the European Commission and the Internet Architecture Board have recently indicated that they believe the IANA-ICANN relationship could be due a rethink, as Milton Mueller of the Internet Governance Project noted last summer.

ICANN prepares for trademark fight with GAC

Kevin Murphy, February 22, 2011, Domain Registries

ICANN thinks the benefits of new top-level domains will outweigh the costs, and it preparing for a scrap when it meets its Governmental Advisory Committee in Brussels next week.

In a number of briefing documents published yesterday, ICANN makes it clear that it does not think the new TLD program will create a huge economic burden on trademark holders.

Brussels is possibly the final major hoop ICANN has to jump through before its board of directors will be able to sign off the Applicant Guidebook and start accepting new TLD applications.

There are a number of areas where the GAC and ICANN disagree. Next week’s meeting is intended to identify those differences, and to try to find ways to resolve them.

The GAC’s biggest problem with the new TLD program, as its members made clear in Cartagena and subsequently, is that it’s not convinced new TLDs won’t cost brand holders a bundle.

What will be the damage caused by cybersquatting? How much money will big business be forced to spend on defensive registrations?

Nobody knows for sure, and none of the independent third-party economic reports commissioned by ICANN ventures anywhere near a comprehensive empirical study.

So the GAC wants another economic study done, to quantify the costs and benefits of new TLDs, and to figure out how voluminous defensive registrations is likely to be.

ICANN disagrees, saying essentially that more studies are pointless, and that demand for defensive registrations in new TLDs are likely to be low.

The Board position is that defensive registrations will increase but not in numbers projected by some trademark holders

Estimates from the Coalition Against Domain Name Abuse, CADNA, last year put the cost to brands of the new TLD program at $746 million. But ICANN isn’t buying that:

The Board also believes that economic studies do not provide evidence that new TLDs will result in demand for defensive registrations. Existing independent studies, that the Board is seeking to validate, indicate that defensive registrations occur only in the very largest, well-established registries only.

the Board is seeking (and will publish) independent corroboration that:

• trademark holders generally do not register their trademarks in all the current generic TLDs.

• Therefore, it is not expected that trademark owners, in general, register their trademarks in new gTLDs, and

• due to the expected costs to run a registry and the expected low number of defensive domain name registrations, there is no economic incentive for an applicant to obtain a TLD for the sole purpose of making money from defensive trademark registrations.

ICANN does not identify these “independent studies”, but the data points cited in the document (pdf) point to a February 2009 article published on CircleID by Paul Stahura, and a comment made on that article by Richard Tindal that cites third-party data.

The Stahura report is arguably the most comprehensive carried out on defensive registrations in existing open gTLDs, concluding that the current cost to trademark holders is very low indeed, and that the bulk of typosquatting and trademark enforcement goes on in .com.

The research suggested that each new TLD would create costs in the tens of thousands of dollars per year, across the whole universe of trademark interests. It used baseline registrar fees in its calculations, unlike the CADNA report, which used sunrise fees about a hundred times greater.

But the Stahura study is “independent” only in the respect that it was not commissioned by ICANN or carried out with its blessing or participation.

At the time it was published, Stahura was president of eNom owner Demand Media, which is expected to be a new TLD applicant. Tindal, apparently also cited in ICANN’s latest report, was senior vice president, registry, for Demand Media.

Independently validating the report’s conclusions will be important, if only to avoid accusations that ICANN is making its decisions based on the views of those who would benefit from new TLDs.

Another of ICANN’s newly published briefing documents (pdf) also address the specific trademark protection mechanisms called for in the Applicant Guidebook.

The GAC has not yet published, or provided ICANN with, its specific recommendations relating to these mechanisms (I understand that will come in the next day or two) but they are expected to call for a tightening of the rules governing the Trademark Clearinghouse and Uniform Rapid Suspension policy.

Unlike several parts of yesterday’s briefing papers, ICANN’s language when discussing these two mechanisms does not suggest to me that it is preparing to substantially compromise.

With trademarks just one of many issues under discussion, Brussels is shaping up to becoming very interesting indeed.

ICANN confirms TLD delays after sponsorship closes

Kevin Murphy, February 17, 2011, Domain Registries

ICANN has officially confirmed that it does not intend to launch the new top-level domains program at its meeting in San Francisco next month.

The news came just one day after the organization stopped accepting sponsorship deals, at the new controversially higher rate, for the meeting.

In a blog post, ICANN’s Jamie Hedlund said that a vote on the new TLD program would not be possible due to the upcoming consultation with the Government Advisory Committee in Brussels.

He wrote:

In addition to the Brussels consultation, the bylaws-defined consultation will take place on 17 March, the day before the Silicon Valley–San Francisco Board Meeting. Because of the timing of the bylaws consultation, the Board will not approve or announce the new gTLD program at that Board Meeting.

Now, the timing of this announcement could just be a coincidence, it could be related to ICANN’s fast-approaching deadline for publishing meeting documents, but the fact that it came the day after the sponsorship deadline for SF passed raised an eyebrow chez DI.

ICANN has known about the timing of the GAC consultation since at least January 25, when its board of directors approved the March 17 schedule.

Chairman Peter Dengate Thrush was quoted as saying new TLDs were likely off the menu for SF as early as February 3, and senior vice president Kurt Pritz echoed that view a week ago.

With March 18 no longer a possibility for the Applicant Guidebook getting approved, what does that mean for the new TLDs timetable?

Some observers believe that we’ll have to wait for the ICANN meeting in Amman, Jordan, in June, which could see the first-round application window open in October.

I’m not convinced we’ll have to wait that long. It seems possible that ICANN will eschew the fanfare of a public meeting and approve the final draft of the Guidebook over the phone whenever it’s ready.

The first new TLDs are expected to go live on the internet approximately 15 months after the Guidebook gets the nod.

New TLD rulebook unlikely to get March nod

Kevin Murphy, February 9, 2011, Domain Registries

ICANN’s new top-level domains Applicant Guidebook is unlikely to get its final approval at ICANN’s March meeting, according to the senior staffer responsible for the program.

Senior vice president of stakeholder relations Kurt Pritz, who gave the keynote at today’s .nxt conference, later told me the Guidebook “probably won’t be approved in San Francisco”.

But impatient new TLD applicants may not have to wait too long afterward for the Guidebook to get the nod and the program to launch.

Pritz said that the Guidebook, currently in a “Proposed Final” version, will likely be revised following ICANN’s upcoming talks with its Governmental Advisory Committee.

But whatever emerges from the GAC consultation will not necessarily be opened for public comment, which would add a month or two of delay to the process. That will be for the board to decide.

Pritz indicated that the community needs to understand that one day ICANN will produce a version of the Guidebook that will be for voting, not commenting.

That’s likely to come sooner rather than later.

It seems to me to be quite likely that a version of the Guidebook emerging in the weeks following San Francisco will be submitted straight to the ICANN board of directors for approval.

During his keynote, which he gave following ICANN CEO Rod Beckstrom’s unexpected eleventh-hour cancellation, Pritz said he wanted “to reset expectations and what I think our job is going forward”.

“Public discussion needs to turn to: should we launch the new gTLD process or should we not?” he said during his remarks.

The keynote was upbeat, talking about the Guidebook being a “road map”, not a series of “road blocks”.

Referring to the recently relaunched .me and .co country-code TLDs, which have been successfully marketed as generic TLDs, Pritz said:

To a certain extent new TLDs are already off and running. There’s a first mover advantage there, so the rest of us need to catch up.

ICANN chair expects more new TLDs delay

Kevin Murphy, February 3, 2011, Domain Registries

ICANN’s new top-level domains program is unlikely to be approved at its San Francisco meeting next month, according to chairman Peter Dengate Thrush.

“We don’t think we’ll be able to approve the final applicant guidebook in March,” he said in a new interview with World Trademark Review.

This confirms my suspicion that changes to the Guidebook made following the upcoming meeting between ICANN and its Governmental Advisory Committee may be too extensive for ICANN to rubber-stamp without first consulting the community.

The ICANN board and the GAC are due to meet in Brussels, February 28 and March 1, to discuss the GAC’s outstanding concerns.

Chief among these concerns is trademark protection, where the GAC is pretty much aligned with the interests of the intellectual property constituency.

Brussels will also cover matters such as geographic names protection and procedures for dealing with controversial strings that governments may want to object to.

While ICANN is under no obligation to adopt the GAC’s suggestions wholesale, if it makes substantial concessions its bylaws will likely demand more public comment on the changes.

ICANN’s board indicated last week that it plans to tell the GAC where it disagrees with its advice at a consultation March 17, one day before its San Francisco meeting.

It also said that it plans to approve a Guidebook “as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook” published in November.

UPDATE: I had an opportunity to put Dengate Thrush’s comments to ICANN CEO Rod Beckstrom this afternoon. He said: “I’m not going to forecast when the final Applicant Guidebook will be approved.”

Details of ICANN’s government showdown emerge

Kevin Murphy, February 1, 2011, Domain Registries

Eight governments will face off against nine ICANN directors and an outside lawyer at the Governmental Advisory Committee showdown in Brussels at the end of the month.

That’s according to a draft agenda for the two-day bilateral meeting on new top-level domains, posted to an ICANN mailing list over the weekend.

The GAC’s 12 remaining concerns appear to have lumped together into eight thematic sessions, each of which is assigned one or more GAC reps, ICANN directors and staffers to “lead” the discussions.

The lead governments are: the US, UK, European Commission, Germany, Netherlands, Norway, Sri Lanka and Kenya. The US will lead or jointly lead three of the eight sessions.

Bruce Tonkin of Melbourne IT has been assigned the unenviable task of representing the ICANN board on the “morality and public order objections” issue, which the US government is currently trying to recast as a governmental right of veto over new TLDs.

Tonkin recently told ICANN’s GNSO Council that he believes Brussels will be focused on trying to understand the GAC’s current objections to new TLDs and help the GAC understand where ICANN has tried to take its previous advice into account.

If the GAC still does not believe that their advice has been heeded, the Board and GAC may discuss how the GAC advice could be taken into account in such a way that the interests of the overall ICANN community continue to be balanced.

He added that any “significant changes” proposed post-Brussels will likely be taken to the rest of the ICANN community for discussion at the San Francisco meeting, March 13.

Any changes proposed by the GAC would have to be “mutually agreeable between the GAC and the rest of the ICANN community”, he wrote.

The trademark protection discussion, likely to be one of the livelier sessions, will be led by the US, UK and Sri Lanka, with Rita Rodin Johnston, Ram Mohan and Gonzalo Navarro representing the board.

ICANN also plans to lawyer up. According to the document, the sole board lead on registry-registrar separation is Joe Sims, ICANN’s long-time outside counsel, a partner with the law firm Jones Day.

US wants veto power over new TLDs

Kevin Murphy, January 29, 2011, Domain Registries

The United States is backing a governmental power grab over ICANN’s new top-level domains program.

In a startling submission to the ICANN Governmental Advisory Committee, a copy of which I have obtained, the US says that governments should get veto power over TLDs they are uncomfortable with:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

In other words, if Uganda objected to .gay, Iran objected to .jewish, or Egypt objected to .twitter, and no other governments opposed those objections, the TLD applications would be killed off.

The fate of TLDs representing marginal communities or controversial brands could well end up subject to back-room governmental horse-trading, rather than the objective, transparent, predictable process the ICANN community has been trying to create for the last few years.

The amendments the US is calling for would also limit the right to object to a TLD on “morality” grounds to members of the GAC, while the current Applicant Guidebook is much broader.

The rationale for these rather Draconian proposals is stability and “universal resolvability”.

The worry seems to be that if some nations start blocking TLDs, they may well also decide to start up their own rival DNS root, fragmenting the internet (and damaging the special role the US has in internet governance today).

The US also wants TLDs such as “.bank” or “.pharmacy” more closely regulated (or blocked altogether) and wants “community” applications more strictly defined.

In the current ICANN Applicant Guidebook, any applicant can designate their application “community-based”, in order to potentially strengthen its chances against rival bids.

But the US wants the Guidebook amended to contain the following provisions:

“Community-based strings” include those that purport to represent or that embody a particular group of people or interests based on historical components of identity (such as nationality, race or ethnicity, religion or religious affiliation, culture or particular social group, and/or a language or linguistic group). In addition, those strings that refer to particular sectors, in particular those subject to national regulation (such as .bank, .pharmacy) are also “community-based” strings.

In the event the proposed string is either too broad to effectively identify a single entity as the relevant authority or appropriate manager, or is sufficiently contentious that an appropriate manager cannot be identified and/or agreed, the application should be rejected.

In practice, this could potentially kill off pretty much every vertical TLD you can think of, such as .bank, .music and .hotel. How many industries have a “single entity” overseeing them globally?

While the goal appears to be noble – nobody wants a .bank or .pharma managed by hucksters – the Community Objection procedure in the Guidebook arguably already provides protection here.

The US also wants the policy allowing the vertical integration of registries and registrars reining in, for TLD applicants to justify the costs their domains will incur on others, and a dramatic overhaul of the trademark protection mechanisms in the Guidebook.

In short, the US wants the new TLDs program substantially overhauled, in ways that are certain to draw howls of protest from many in the ICANN community.

The document does not appear to be official GAC policy yet. It could well be watered down before the GAC meets the ICANN board in Brussels at the end of February.

ICANN said earlier this week that it plans to approve a Guidebook “as close as practically possible” to the current draft, and heavily hinted that it wants to do so at its San Francisco meeting in March.

But if many of the US recommendations were to make it through Brussels, that’s a deadline that could be safely kissed goodbye.

Porn set to steal the show in San Francisco

Kevin Murphy, January 28, 2011, Domain Registries

ICM Registry’s .xxx top-level domain looks set to grab the headlines at ICANN’s meeting in San Francisco, due to government-forced delays.

While ICANN is hoping to approve its new top-level domains program in March, that decision may wind up receiving less media attention than the final approval of the porn-only domain.

ICANN last month said that it wanted to hold a final consultation to resolve its differences with the Governmental Advisory Committee – which broadly objects to .xxx – in February 2011.

This referred to a proposed meeting between the GAC and the board, which has now been officially scheduled for February 28 in Brussels.

But a resolution carried by ICANN this week has pushed the consultation back to “no later than Thursday 17 March, 2011”, the day before its San Francisco meeting.

That would put the sign-off of ICM’s contract on the same billing as the planned final approval of the new top-level domains Applicant Guidebook and the launch of the new TLDs program.

San Francisco is set to be the focus of unprecedented media attention, due to its location and the likely presence of Bill Clinton. We’re probably looking at tighter stage management than usual.

With that in mind, I expect ICANN bosses won’t be too happy that porn-friendly .xxx is likely to steal away many column inches they would prefer devoted to new TLDs.

Porn in headlines gets clicks. Readers understand it, and you generally don’t need to explain to an editor what a TLD is. I know which story would be easier for me to sell.

Had ICANN put .xxx on the agenda for Brussels – which does not appear to have been ruled out yet – it could have wrapped up the ICM saga with a resolution quite quickly afterward.

That would have given ICM a week or so of undiluted media coverage, and the new TLDs program would not have had to share the spotlight with porn come San Francisco.

The question is: why is .xxx apparently not on the agenda for Brussels? Given ICANN’s previous decision to hold the meeting in February, responsibility seems to lie with the GAC.

Rumor has it that there’s a bit of a power struggle going on behind the scenes, with some elements of the GAC resistant to make Brussels the official final .xxx consultation.

Time will tell whether this position is firm or flexible.