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ICANN’s new gTLD Public Interest Commitments idea: genius or pure crazy?

Kevin Murphy, February 7, 2013, Domain Policy

ICANN has given new gTLD applicants a month to draft their own death warrants.

Okay, that might be a little hyperbolic. Let’s try again:

ICANN has given each new gTLD applicant 28 days to come up with a list of voluntary “Public Interest Commitments” that, if breached, could lead to the termination of their registry contracts.

The proposed, far-reaching, last-minute changes to the basic new gTLD Registry Agreement were introduced, published and opened for public comment on Tuesday.

PICs — as all the cool kids are calling them — are designed to appease ICANN’s Governmental Advisory Committee, which wants applicants to be held accountable to statements made in their gTLD applications.

If an applicant said in its application for .lawyer, for example, that only actual lawyers will be able to register a .lawyer domain name, the GAC wants ICANN to be able to step in and enforce that promise if the registry changes its registration policies at a later date.

Public Interest Commitments are the way ICANN proposes to let applicants state clearly what they commit to do and not to do, either by flagging parts of their existing application as binding commitments or by writing and submitting entirely new commitments.

Submitting a set of PICs would be voluntary for applicants, but once submitted they would become a binding part of their Registry Agreement, assuming their gTLD is approved and delegated.

“These are commitments you’re making to the community, to the governments, to everybody that can object to your applications, these are not commitments you’re making with ICANN,” ICANN COO Akram Atallah said on Tuesday’s webinar.

Registries would be subject to a new dispute policy (the Public Interest Commitment Dispute Resolution Process or PICDRP) that would enable third parties to file official complaints about breaches.

“We’re allowing third parties that are affected to be able to bring these claims, and then based upon the outcome of the dispute resolution process ICANN will enforce that third party dispute resolution result,” ICANN general counsel John Jeffrey said.

Registries that lost a PICDRP would have to “implement and adhere to any remedies ICANN imposes” up to and including the termination of the registry contract itself.

ICANN is asking applicants to submit their PICs before March 5, just 28 days after revealing the concept.

How PIC (probably) would work

Let’s take an example new gTLD application, selected entirely at random.

Donuts has applied for .dentist.

While the applied-for string suggests that only dentists will be able to register domain names, like all Donuts applications the gTLD would actually be completely open.

The government of Australia has filed a GAC Early Warning against this bid, stating that “does not appear to have proposed sufficient protections to address the potential for misuse”.

The Aussies want Donuts to detail “appropriate mechanisms to mitigate potential misuse and minimise potential consumer harm” or risk getting a potentially lethal GAC Advice objection to its bid.

If Donuts were so inclined, it could now attach a PIC to its .dentist bid, outlining its commitment to ensuring that .dentist is not abused by amateur dental surgery enthusiasts.

The PIC would be subject to public review and comment. If, subsequently, Donuts won the .dentist contention set, the PIC would be attached to its .dentist Registry Agreement and become binding.

Donuts may even stick to its commitments. But the moment some Marathon Man-inspired nutter managed to slip through the cracks, Donuts would be open to PICDRP complaints, risking termination.

What’s good about this idea?

From one perspective, PIC is a brilliantly clever concept.

The proposed solution doesn’t require applicants to amend their applications, nor would it require lengthy contractual negotiations during the gTLD approval and delegation process.

Applicants could merely attach their commitments to the base registry agreement, sign it, and be on their merry way.

This means fewer delays for applicants and relatively little additional up-front work by ICANN.

On an ongoing basis, the fact that PICs would be enforceable only by third parties via the PICDRP means fewer headaches for ICANN compliance and fewer debacles like the aborted attempt to bring .jobs into line.

Finally, it’s also completely voluntary. If applicants don’t want to file a PIC, they don’t have to. Indeed, most applicants aren’t even in a position where they need to think about it.

Do I sense a “but”?

But I can’t see these proposals going down too well in applicant land.

ICANN is, essentially, giving applicants one short month to bind themselves to a completely new, almost completely unknown dispute resolution process.

Repeat: the PICDRP does not yet exist.

Indications were given that it will be modeled on existing dispute resolution procedures in the Applicant Guidebook, but there’s no actual text available to review yet.

We do know that the process would be designed to enable third parties to file complaints, however. Agreeing to PICDRP could therefore potentially open up applicants to competitive or nuisance complaints.

The “remedies” that ICANN could impose when a PICDRP case is lost are also currently rather vague.

While the nuclear option (termination) would be available, there’s no information yet about possible lesser remedies (financial penalties, for example) for non-compliance.

I’ve talked to enough domain name industry lawyers over the years to guess that most of them will take a very dim view of PIC, due to these uncertainties.

One of the guiding principles of the new gTLD program from the outset was that it was supposed to be predictable. ICANN has veered away from this principle on multiple occasions, but these eleventh-hour proposed changes present applicants with some of the biggest unknowns to date.

The timeline doesn’t work

The raison d’être for the PIC concept is, ostensibly, to enable applicants to avoid not only potential GAC Advice but also official objections by other third parties.

But according to ICANN documentation, applicants are being asked to submit their PICs by March 5. ICANN will publish them March 6. They’d then be open for public review until April 5 before becoming final.

But the deadline for filing objections is March 13. That deadline also applies to objections filed by governments (though not GAC Advice, which is expected to come in mid-late April).

Judging by this timeline, potential objectors would have to decide whether to file their objections based on PICs that have been published for just one week and that could be amended post-deadline.

Unless ICANN extends the objection filing window, it’s difficult to see how PIC could be fit for its stated purpose.

On the bright side

I believe that only a small percentage of applicants will be affected by PIC.

Out of 1,917 applications and 1,409 strings, GAC governments filed just 242 Early Warnings against 145 strings. Some of those warnings merely tell the applicant to withdraw its bid, which no amount of PIC will cure.

I expect that very few, if any, applicants without Early Warnings will bother to file PICs, unless of course the objections deadline is moved and PIC becomes an effective way to avoid objections.

For those with Early Warnings, an alternative strategy would be to lobby friendly GAC members — demonstrably flexible to lobbying, judging by the Early Warnings — to ensure that they do not receive full, consensus GAC Advice against their applications.

That would be risky, however, as there’s currently no way of knowing how much weight ICANN’s board of directors will give to non-consensus GAC Advice against applications.

GAC gets its way in new Applicant Guidebook

Kevin Murphy, June 5, 2012, Domain Policy

ICANN’s Governmental Advisory Committee is the beneficiary of the biggest changes in the new version of the new gTLD program Applicant Guidebook.

Published late last night, the Guidebook has been revised with mainly cosmetic changes.

The exception is the updated text on GAC Advice on New gTLDs, the mechanism through which the GAC can effectively torpedo any new gTLD application it doesn’t like.

The new text is exactly what the GAC asked for following the ICANN meeting in Dakar last October, rather than the edited version ICANN chose to put in the Guidebook in January.

Basically, the GAC put ICANN staff on the naughty step in Costa Rica this March for failing to insert its advice into the Guidebook verbatim, and this has now been rectified.

The changes don’t mean a heck of a lot for applicants.

Essentially, if the GAC finds a consensus against an application, there’s still a “strong presumption” that the ICANN board should reject it.

If only some governments object, the board is still expected to enter into talks to understand the scope of the concern before making its call.

The new Guidebook has removed two references to the fact that the ICANN board can overrule a GAC advice-objection, but that power still exists in ICANN’s bylaws.

The main reason the text has been removed was that the GAC complained in Costa Rica that it appeared to weaken the consultation process required by the bylaws.

And it was pissed off that ICANN staff had edited its text without consultation.

GAC gets more power to block controversial gTLDs

Kevin Murphy, January 12, 2012, Domain Policy

While the new version of ICANN’s new generic top-level domains Applicant Guidebook contains mostly tweaks, there’s a pretty big change for those filing “controversial” applications.

The Guidebook now grants the Governmental Advisory Committee greater powers to block gTLD applications based on minority government views.

ICANN has adopted poorly-written, ambiguous text approved by the GAC at its meeting in Dakar last October, which lowers the threshold required to force the ICANN board to consider GAC advice.

The changes essentially mean that it’s now much easier for the GAC to force the ICANN board to the negotiating table if a small number of governments object to a gTLD application.

In the September Guidebook, a GAC consensus objection was needed to force the ICANN board to manually approve controversial applications. Now, it appears that only a single country needs to object.

This is the relevant text:

The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

Applications for .gay, of which there are expected to be at least two, will almost certainly fall into this category.

If you’re applying for a potentially controversial gTLD, you can thank the GAC for the fact that your road to approval is now considerably less predictable.

It’s also worth bearing in mind that the GAC is allowed to file an objection based on any aspect of the application – not just the chosen string.

So, for example, if you’re applying for .bank or .pharma and your application falls short of one government’s expected consumer safeguards, you may also see a GAC “concerns” objection.

In cases where the GAC objects to an application, the ICANN board of directors does have the ability to overrule that objection, if it provides its rationale, much as it did with .xxx.

However, .xxx was a special case, and ICANN today is under a regime much friendlier to the GAC and much more nervous about the international political environment than it was 12 months ago.

Make no mistake: GAC Advice on New gTLDs will carry weight.

This table compares the types of GAC Advice described in the Applicant Guidebook published in September with the one published last night.

September Applicant GuidebookJanuary Applicant Guidebook
I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for ICANN that the application should not be approved. In the event that the ICANN Board determines to approve an application despite the consensus advice of the GAC, pursuant to the ICANN Bylaws, the GAC and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. In the event the Board determines not to accept the GAC Advice, the Board will provide a rationale for its decision.I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved. The ICANN Board is also expected to provide a rationale for its decision if it does not follow the GAC
Advice.
II. The GAC provides advice that indicates that some governments are concerned about a particular application. Such advice will be passed on to the applicant but will not create the presumption that the application should be denied, and such advice would not require the Board to undertake the process for attempting to find a mutually acceptable solution with the GAC should the application be approved. Note that in any case, that the Board will take seriously any other advice that GAC might provide and will consider entering into dialogue with the GAC to understand the scope of the concerns expressed.II. The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.
II. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed. If there is a remediation method available in the Guidebook (such as securing government approval), that action may be taken. However, material amendments to applications are generally prohibited and if there is no remediation method available, the application will not go forward and the applicant can re-apply in the second round.III. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed unless there is a remediation method available in the Guidebook (such as securing the approval of one or more governments), that is implemented by the applicant. If the issue identified by the GAC is not remediated, the ICANN Board is also expected to provide a rationale for its decision if the Board does not follow GAC advice.

It should also be noted that since Dakar the GAC has defined consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”.

In other words, if some GAC members push for a GAC consensus objection against a given gTLD, other GAC members would have to formally object to that proposed objection in order to prevent the minority view becoming consensus.

It’s a pretty low threshold. The .gay applicants, among others, are going to have a nerve-wracking time.

GAC new gTLD veto refuses to die

Kevin Murphy, October 31, 2011, Domain Policy

ICANN’s Governmental Advisory Committee seems to be trying yet again to resurrect the government right of veto over controversial new top-level domain applications.

The GAC has proposed changes to the new gTLDs Applicant Guidebook that – at least on the face of it – would remove ICANN’s power to overrule GAC objections.

The changes would also make it much more likely that a gTLD application could be killed off due to the objections of a single nation.

If adopted, they would also make the already unpredictable process of anticipating the result of GAC objections considerably more ambiguous.

The supposedly “complete” Guidebook published by ICANN last month currently includes a warning that the GAC is working on its objecting rules, and that these will be included in future.

The GAC Communique (pdf) issued at the ICANN meeting in Dakar on Friday includes these proposed rules as an annex, and they’re not great if you’re a likely new gTLD applicant.

Consensus objections

If the GAC issues a consensus objection to an application, the Guidebook currently states that a “strong presumption” would be created that the application should fail.

But ICANN’s board would be able to overrule it with a so-called “Bylaws consultation”, the same process it used to approve .xxx earlier this year.

In its proposed revisions, the GAC inexplicably wants to delete the references to the Bylaws consultation.

My understanding is that the GAC is not proposing a change to the Bylaws, so the right of the board to initiate a consultation and overrule a GAC objection would still exist.

But the GAC seems to be asking for applicants to be given far less information about that process than they need, making its own powers appear greater than they are.

This could raise the psychological barrier to initiating a Bylaws consultation and create the perception that a consensus GAC objection always kills an application, which may not be the case.

The Dakar communique defines GAC consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”, which creates its own set of worries.

Non-consensus objections

A much bigger change is proposed to the way ICANN handles GAC “concerns” about an application.

This is GAC code for a non-consensus objection, where one or more governments has a problem with an application but the GAC as a whole cannot agree to object.

This is the objection mechanism that will very likely capture applications for gTLDs such as .gay, but it could basically cover any string for any reason.

Using the Guidebook’s current wording, there would be no presumption that this kind of application should be rejected. It would be in ICANN’s discretion to initiate a Bylaws consultation.

But the GAC wants something that sounds rather a lot like a Bylaws consultation made mandatory.

“The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns,” it says. “The ICANN Board is also expected to provide a rationale for its decision.”

This basically means that an application for .gay that was objected to by just two or three governments would have to undergo the pretty much the same level of scrutiny as .xxx did.

The political pressure on ICANN to kill the application would be much more intense than it would under the Guidebook’s current rules.

Here’s a table of the GAC’s proposed changes.

Applicant GuidebookGAC Proposed Text
I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for ICANN that the application should not be approved. In the event that the ICANN Board determines to approve an application despite the consensus advice of the GAC,
pursuant to the ICANN Bylaws, the GAC and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. In the event the Board determines not to accept the GAC Advice, the Board will provide a rationale for its decision.
l. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved.
II. The GAC provides advice that indicates that some governments are concerned about a particular application. Such advice will be passed on to the applicant but will not create the presumption that the application should be denied, and such advice would not require the Board to undertake the process for attempting to find a mutually acceptable solution with the GAC should the application be approved. Note that in any case, that the Board will take seriously any other advice that GAC might provide and will consider
entering into dialogue with the GAC to understand the
scope of the concerns expressed.
ll. The GAC advises ICANN that there are concerns about a particular application "dot-example". The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.
II. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed. If there is a remediation method available in the Guidebook (such as securing government approval), that action may be taken. However, material amendments to applications are generally prohibited and if there is no remediation method available, the application will not go forward and the applicant can re-apply in the second round.lll. The GAC advises ICANN that a particular application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed unless there is a remediation method available in the Guidebook (such as securing one or more government’s approval) that is implemented by the applicant.

In summary, the GAC wants to give more weight to fringe objections and to make the whole process potentially much more confusing for applicants.

I can’t see ICANN sensibly adding the GAC’s text to the Guidebook without at the very least some edits for clarity.

GAC slams registrars over “silly” crime domain moves

Kevin Murphy, October 24, 2011, Domain Registrars

ICANN’s Governmental Advisory Committee is seriously annoyed with domain name registrars over what it sees as a failure to take the demands of law enforcement seriously.

The first official day of ICANN’s 42nd public meeting in Dakar, Senegal, was highlighted by a fractious discussion between the GAC and the Generic Names Supporting Organization.

Governments are evidently losing patience with the industry over what they see as incessant foot-dragging and, now, halfhearted bone-throwing.

The US, which is easily the most influential GAC member, was harshly critical of recent efforts by registrars to self-regulate themselves some law enforcement cooperation policies.

US GAC representative Suzanne Radell, saying she was speaking on behalf of the GAC, described a registrar move to start publishing legal service addresses on their web sites at some point in the future as as “paltry”, “mind-boggling” and “silly”.

She heavily implied that if the industry can’t self-regulate, the alternative is governments doing it for them. She was backed up by her counterparts from the UK, Australia and the European Commission.

Registrars have been talking to law enforcement for a few years about how to more effectively work together to prevent crime online.

In October 2009, agencies including the FBI and the UK Serious Organised Crime Agency publish a set of 12 recommendations about how to clean up the industry.

A lot of it was pretty basic stuff like a prohibition on registrar cybersquatting and an obligation to publish an abuse point of contact.

Despite a lot of talking at ICANN meetings, up until a couple of weeks ago there had not been a great deal of tangible progress.

The GNSO passed a resolution, proposed by registrars, to ask for an Issue Report to discuss whether registrars should be forced to post on their sites: a physical address for legal service, the names of key executives, and an abuse contact.

In ICANN’s world, an Issue Report usually precedes a Policy Development Process, which can take a year or more to produce results.

While the GNSO motion passed, it was opposed as inadequate by factions such as the Intellectual Property Constituency, which has close ties to the US government.

As the IPC seemed to correctly predict, the GAC was not amused.

“It is simply impossible for us to write a briefing memo for our political managers to explain why you need a policy to simply put your name on your web site,” Radell told the GNSO Council yesterday. “It is simply mind-boggling that you would require that.”

She pointed out that at a session during the Singapore meeting, registrars had indicated a willingness to address more of the law enforcement demands.

“That’s the context in which we are now coming to you saying this looks pretty paltry and actually it looks a little silly,” she said.

Mason Cole from the registrar constituency denied that they were “roadblocking” law enforcement’s demands, saying that a PDP is the fastest way to create a policy binding on all registrars.

“I think law enforcement was very clear when they made their proposals to us that what they were looking for was binding, enforceable provisions of policy that could be imposed on the registrars,” he said. “A code of conduct or a voluntary method would not arrive at binding, enforceable policy and therefore probably wouldn’t achieve the outcomes that law enforcement representatives were seeking.”

The debate didn’t end yesterday. Radell said she intends to take it up with the ICANN board of directors, presumably at their joint meeting tomorrow.

The implicit threat underlying the GAC’s protest is a legislative one, and Radell and other GAC members made it pretty clear that their governments back home regard domain names as a crucial tool in fighting online crime.