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ICANN urged to kill new TLD morality veto

Kevin Murphy, September 17, 2010, Domain Services

ICANN has been asked to eliminate references to “morality and public order” objections from its new top-level domain application process.

A cross-constituency working group has advised ICANN’s board of directors to scrap the term and to ensure that whatever replaces it does not enable individual governments to veto new TLDs based on their own local laws.

The so-called “MOPO” or “MAPO” part of the Draft Applicant Guidebook attracted criticism because ICANN’s Governmental Advisory Committee seemed to want to use it to grant themselves the right to block any TLD application they deemed too controversial.

The fear from the GAC was that if nations started blocking whole TLDs at their borders, it could ultimately lead to the fragmentation of the DNS root.

The fear elsewhere was that some edgy TLD applications, such as .gay or .sex, could be rejected due to the unilateral objections of backward regimes, harming freedom of speech.

But if ICANN incorporates the working group’s new recommendations into the next version of the DAG, that probably won’t be allowed to happen.

The group this week forwarded an interim report to the ICANN board for its consideration. While incomplete, it already carries a few recommendations that managed to find consensus.

Notably, the report recommends that, “National law not based on international principles should not be a valid ground for an objection”, which would seem to scupper any chances of Uganda or the Holy See blocking .gay, for example.

The working group has so far failed to reach consensus on how governmental objections should be registered and processed, but one option is:

The Applicant Guidebook should allow individual governments to file a notification (not an objection) that a proposed TLD string is contrary to their national law. The intention is that an “objection” indicates an intent to block, but a “notification” is not an attempt to block, but a notification to the applicant and the public that the proposed string is contrary to the government’s perceived national interest. However, a national law objection by itself should not provide sufficient basis for a decision to deny a TLD application.

The working group, which counted a few GAC members among its number, has managed to unanimously agree that the awkward term “morality and public order” should be dumped.

One possible contender to replace it is “Objections Based on General Principles of International Law”.

The group has also discussed the idea that a supermajority vote could be required if the board decides to reject a TLD application based on a MOPO objection.

The report is a work in progress. The working group expects to send an updated document to the ICANN board shortly before its retreat later this month.

Whether any of this will be acceptable to the GAC as a whole is up for debate.

Governments want morality veto on new TLDs

Kevin Murphy, August 6, 2010, Domain Registries

ICANN’s Governmental Advisory Committee wants to be able to kill off new top-level domain applications on cultural and religious grounds.

The GAC has finally broken its radio silence on the “morality and public order” or “MOPO” issue that was such a hot topic at the Brussels meeting in June.

A letter to ICANN (pdf), sent by Canadian GAC chair Heather Dryden, leaves little room for doubt where the GAC stands.

The GAC firmly believes that the absence of any controversial strings in the current universe of top-level domains (TLDs) to date contributes directly to the security and stability of the domain name and addressing system (DNS) and the universal resolvability of the system.

As a matter of principle… the GAC believes that the object of stability, security, and universal resolvability must be preserved in the course of expanding the DNS with the addition of new top-level domains.

This is actually quite powerful stuff.

The GAC is basically saying that no new TLDs should be introduced that would be unacceptable to the lowest common denominator world government.

Think Uganda, asked to make a call on .gay.

Think about any oppressed ethnic group without a territory that wants to apply for its own TLD.

The GAC wants ICANN to create a process for governments and others to object to TLD applications on religious, cultural, linguistic, national and geographical grounds.

It could even result in .xxx being objected to, even though it’s technically part of the 2005 round of new TLDs – the GAC wants the objection process to apply to “all pending and future TLDs”.

.XXX to run the ICANN gauntlet yet again

Kevin Murphy, August 6, 2010, Domain Registries

Bring on the Christians!

The contract between ICANN and ICM Registry to run the .xxx adults-only top-level domain is to be submitted for an ICANN public comment period, again.

ICANN’s board resolved yesterday to publish the proposed registry agreement for comment for at least 30 days.

But it has not yet decided whether to refer the deal to its Governmental Advisory Committee, which remains ICM’s major potential pitfall on its route to the root.

As long as the public comment period kicks off quite soon, the ICANN board could be in a position to make that call at its weekend retreat, September 24.

The .xxx application has generated more public comment over the years than all other ICANN public comment periods combined.

Its last such period, earlier this year, saw thousands of comments, most of them filed in response to outreach by right-wing American Christian groups.

Objections are also regularly received from members of the Free Speech Coalition, a porn trade group.

I expect this forum will be no different. It will be interesting to see what tactics are rolled out this time, given previous failures.

Here’s the meat of the latest resolution:

RESOLVED (2010.08.05.21), upon receipt of ICM’s application documentation, ICANN Staff is authorized to post ICM’s supporting documents and proposed registry agreement for the .XXX sTLD for public comment for a period of no less than 30 days.

RESOLVED (2010.08.05.22), upon completion of public comment period, ICANN Staff shall provide the Board with a summary of the public comments and shall make a recommendation to the Board as to whether the proposed registry agreement for the .XXX sTLD is consistent with GAC advice.

RESOLVED (2010.08.05.23), once the Board has received the above public comment summary and recommendation from the ICANN Staff regarding the proposed registry agreement for the .XXX sTLD, the Board shall at its next possible meeting, consider this recommendation, and determine, consistent with the ICANN Bylaws, whether a GAC consultation shall be required.

Judgment day for .xxx and .jobs

Kevin Murphy, August 5, 2010, Domain Registries

ICANN’s board of directors will today meet to decide the fate of the .xxx and .jobs top-level domains.

ICM Registry will find out whether its contract to run .xxx will have to face a potentially lengthy review by ICANN’s notoriously slow-footed Governmental Advisory Committee.

Employ Media will find out whether it will be allowed to relax its registration rules to allow non-company-name .jobs domains.

If the board decides no further GAC intervention is needed, ICM will be on a fast track to having its TLD considered for delegation in Cartagena this December.

If Employ Media’s proposal is rejected, it faces more years in the wilderness of managing a registration base in the low tens of thousands.

I have a track record of lousy predictions, but I’m going to go out on a limb again and make a low-confidence prediction that both registries are going to get what they want.

I’m not sure if it’s been noted before, but there are some strong similarities between the two TLDs and their proposals.

In the case of .xxx, some of the main opponents of the domain have been the adult industry itself. With the .jobs liberalization, the loudest outcry has come from jobs boards.

Both are essentially cases of a registry proposing something that makes good business sense for itself, but which is not necessarily what a significant portion of its would-be constituents want.

In the case of ICM, lack of support from the porn business was what originally killed off the application (at least, that was the official line), a decision that ICANN was recently forced to reverse if not recant.

In the case of .jobs, ICANN’s recent summary and analysis of the well-attended public comment period, which the board will be given prior to voting, may be a telling.

Most of the opposition to the .jobs deal was organized by the International Association of Employment Web Sites, which itself sent a long letter spelling out precisely why it thinks the scheme is bogus.

Of the 2,600 words IAEWS submitted, ICANN’s summary and analysis document quotes just two sentences, one of which is this:

“Neither human resources professionals employed in corporate human resources (‘HR’) departments nor executive search/staffing firms [which are part of the .JOBS community] are eligible for membership in IAEWS.”

The quote is pulled from the introduction of the IAEWS letter, rather than the substance of its objection, and the text in square brackets is ICANN’s own insertion.

I can’t think of any reason that text is worth quoting other than in order to dilute the significance of the IAEWS’ arguments against the .jobs liberalization.

Indeed, the document uses more wordage to describe the nature of the IAEWS letter-writing campaign than it does the content of its letters, which can’t look good for the IAEWS.

Employ Media’s response to the IAEWS letter is quoted at greater length, particularly the bit where it compares its own plans to the new gTLD program.

While they claim that the addition of occupation, industry and geographical identifiers at the second level within the .JOBS sTLD will lead to increased confusion within the marketplace, it is hard to reconcile this argument to ICANN’s extensive public policy work and implementation plan in connection with the new gTLD process. The same fundamental economic basis for going forward with the whole new gTLD initiative also applies to this .JOBS RSEP request; these issues should not be re debated and should not delay or deny approval of the .JOBS RSEP request.

If you’re an ICANN board member, aware of how much of ICANN’s credibility is tied up with the new TLD program, can you really argue with that?

Of course, board and staff don’t always agree, so I may be way off the plot here, but it seems to me that .jobs is likely to very soon become a considerably more open namespace.

Round-up of the ICANN new TLDs comment period

Today is the deadline to file comments on version four of ICANN’s Draft Applicant Guidebook for prospective new top-level domain registries.

Of the few dozen comments filed, the majority involve special pleading in one way or another – everybody has something to lose or gain from the contents of the DAG.

That said, I’ve read all the comments filed so far (so you don’t have to) and lots of good points are raised. It’s clear that whatever the final Applicant Guidebook contains, not everybody will get what they want.

Here’s a non-comprehensive round-up, organized by topic.

Trademark Protection

Trademark holders were among the first to file comments on DAG v4. As I’ve previously reported, Lego was first off the mark with an attempt to convince ICANN that the concerns of the IP lobby have not yet been resolved.

Since then, a few more of the usual suspects from the IP constituency, such as Verizon and InterContinental Hotels, have filed comments.

The concerns are very similar: the Universal Rapid Suspension process for trademark infringements is too slow and expensive, the Trademark Clearinghouse does not remove cost or prevent typosquatting, not enough is done to prevent deadbeat registries.

Verizon, a long-time opponent of the new TLD program and a rigorous enforcer of its trademarks, used its letter to raise the issue of cybercrime and hit on pressure points relating to compliance.

It brings up the KnujOn report (pdf) released in Brussels, which accused ICANN registrars of being willfully blind to customer abuses, and the fact that ICANN compliance head David Giza recently quit.

Two IP-focused registrars also weighed in on trademark protection.

Com Laude’s Nick Wood filed a very good point-by-point breakdown of why the URS process has become too bloated to be considered “rapid” in the eyes of trademark holders.

Fred Felman of MarkMonitor covers the same ground on rights protection mechanisms, but also questions more fundamentally whether ICANN has shown that the new TLD round is even economically desirable.

Felman has doubts that new gTLDs will do anything to create competition in the domain name market, writing:

the vast majority of gTLDs currently being proposed in this round are gTLDs that hide traditional domain registration models behind a veil of purported innovation and creativity

Well, I guess somebody had to say it.

Fees

There are concerns from the developing world that $185,000, along with all the associated costs of applying for a TLD, is too steep a price to pay.

The “African ICANN Community” filed a comment a month ago asking ICANN to consider reducing or waiving certain fees in order to make the program more accessible for African applicants.

Several potential TLD registries also think it’s unfair that applicants have to pay $185,000 for each TLD they want to run, even if it’s basically the same word in multiple scripts.

Constantine Roussos, who intends to apply for .music, reiterated the points he brought up during the ICANN board public forum in Brussels last month.

Roussos believes that applicants should not have to pay the full $185,000 for each non-ASCII internationalized domain name variant of their primary TLD.

He wrote that he intends to apply for about six IDN versions of .music, along with some non-English Latin-script variants such as .musique.

Antony Van Couvering of registry consultant Minds + Machines and .bayern bidder Bayern Connect both echo this point, noting that many geographical names have multiple IDN variants – Cologne//Koeln/Köln, for example.

Roussos also notes, wisely I think, that it appears to be a waste of money paying consultants to evaluate back-end registry providers for applicants who choose to go with an recognized incumbent such as VeriSign, NeuStar or Afilias.

Another request for lower fees comes from the Japan Internet Domain Name Council, which thinks geographical TLD applications from small cities should receive a discount, as well as a waiver of any fees usually required to object to a third-party application.

Contended Strings and Front-Running

Of the known proposed TLDs, there are several strings that will very likely be contended by multiple bidders. This has led to maneuvering by some applicants designed to increase their chances of winning.

Roussos suggested that applicants such as his own .music bid, which have made their plans public for years, should be awarded bonus points during evaluation.

This would help prevent last-minute con artists stepping in with “copy-paste” bids for widely publicized TLDs, in the hope of being paid off by the original applicant, he indicated.

Roussos thinks the amount of work his .music has done in raising community awareness around new TLDs has earned the company extra credit.

It’s a thought echoed by Markus Bahmann, dotBayern’s chairman, and his counterpart at dotHamburg.

The opposing view is put forward by rival .bayern bidder Bayern Connect’s Caspar von Veltheim. He reckons such a system would put “insiders” at an unfair advantage.

M+M’s Van Couvering also said he opposes any applicant getting special treatment and added that M+M wants an explicit ban on trademark front-running included in the DAG.

Front-running is the practice of registering a TLD as a trademark in order to gain some special advantage in the new TLD evaluation process or in court afterward.

(M+M’s owner, Top Level Domain Holdings, has reportedly been front-running itself – attempting to defensively register trademarks in the likes of .kids, .books and .poker, while simultaneously trying to fight off similar attempts from potential rivals.)

Roussos of .music responded directly to M+M this afternoon, presenting the opposite view and promising to use its trademarks to defend itself (I’m assuming he means in court) if another .music applicant prevails.

Rest assured that if we, as .MUSIC are faced with the possibility of being gamed and abused in a manner that we find illegal, we will use our trademarks and other means necessary to do what we have to do to protect ourselves and our respective community.

He said .music is trademarked in 20 countries.

Morality and Public Order

This was a hot topic in Brussels, after the ICANN Governmental Advisory Committee agreed that it did not like the “MOPO” objection provisions of DAG v4, but could not think of a better replacement.

MOPO would give a way for governments to scupper bids if they do not like the morality implications. Anybody applying for .gay, for example, would have to deal with this kind of nonsense.

Jacob Malthouse of BigRoom, one of the would-be .eco bidders, reckons ICANN should treat the GAC the same as it treated the GNSO on the issue of vertical integration – remove MOPO from the DAG entirely in order to force the GAC to come up with something better.

The GAC had previously said it would address the MOPO issue in its comments on DAGv4, but its filing has not yet appeared on the ICANN site.

There’s a GNSO working group over here, but M+M’s Van Couvering notes that no GAC members have got involved post-Brussels.

Terrorism

Two commentators objected to the idea that an applicant could be rejected for involvement in “terrorism”, a term that DAGv4 does not define.

I reported on this a few days ago, but since then Khaled Fattal of the Multilingual Internet Group has filed a surprising rant that seems to indicate he has way more beef than really necessary.

Here’s a few quotes mined from the full comment:

it will alienate many in the international community who will choose not to take part in future ICANN processes including its New gTLDs, distrusting ICANN’s motives, or actively choosing to boycotting it, and causing many to seriously start re-considering alternatives.

as a Syrian born Arab American would I pass the IvCANN terrorism verification check as they are? After all Syria, my country of birth, is on the U.S. Government list of states sponsor of terrorism? And I admit, I do know an “Osama”, does that disqualify me? I Forgot to add, “Osama Fattal” a cousin. So would I pass or fail this check?

The arbitrary inclusion of terrorism as a measuring stick without any internationally recognized laws or standards is wrong and offensive to many around the world. If acted upon, it will be seen by millions of Muslims and Arabs as racist, prejudicial and profiling and would clearly indicate that ICANN has gone far beyond its mandate.

Vertical Integration and .brand TLDs

The issue of whether registries and registrars should be allowed to own each other is a thorny one, but there’s barely any mention at all of it in the DAGv4 comments filed so far.

The DAGv4 language on VI, which effectively bans it, is a place-holder for whatever consensus policy the GNSO comes up with (in the unlikely event that its working group ever gets its act together).

Most efforts on VI are therefore currently focused in the GNSO. Nevertheless, some commentators do mention VI in their filings.

Roussos of .music wants .music to be able to vertically integrate.

Abdulaziz Al-Zoman of SaudiNIC said VI limits should be removed to help applicants who need to turn to third-party infrastructure providers.

From the IP lobby, Celia Ullman of cigarette maker Philip Morris notes that there’s nothing in DAGv4 about single-registrant .brand TLDs. She writes:

would this mean that trademark owners owning a gTLD would need to open the registration procedure to second-level domain names applied for to third unrelated parties? In this case, what would be the incentive of actually registering and operating such a gTLD?

Clearly, the idea that a .brand would have to be open to all ICANN registrars on a non-discriminatory basis is enough to make any trademark attorney choke on their caviare.

JPNIC, the .jp ccTLD operator, also points out that DAGv4 says next to nothing about .brand TLDs and strongly suggests that the final Applicant Guidebook spells out just what a registry is allowed to do with its namespace (lawsuits are mentioned)

Disclaimer

I’ve paraphrased almost everybody in this article, and I’ve done it rather quickly. Despite my best efforts, some important nuance may have been lost in the act.

If you want to know what the commentators I’ve cited think, in their own words, I’ve linked to their comments individually throughout.

I may update this post as further comments are filed.

ICANN Brussels – .xxx approved but not approved

The controversy over the .xxx top-level domain has for the last few years, at least from one point of view, centered on opposing views of whether it was already “approved”.

ICM Registry has long claimed that ICANN “approved” it in 2005, and believes the Independent Review Panel agreed with that position. ICANN said the opposite.

Regardless of what happened in Brussels yesterday, when the board grudgingly voted to reopen talks on .xxx (to a surprisingly muted audience response), the question of whether .xxx is “approved” is definitely not over yet.

ICM tweeted shortly after the ICANN’s board’s decision:

@ICMRegistry: We are delighted to announce that the #ICANN Board has approved the .xxx top-level domain.

But a couple of hours later, ICANN chair Peter Dengate Thrush told us at a press conference that it categorically was not “approved”.

In terms of getting its point across to the media, ICM’s message trumped ICANN’s, judging by the headlines currently scrolling past me on Google News.

I guess this boils down to a question of definitions.

From the ICANN perspective, a TLD is presumably not “approved” until a contract has been signed and the board has resolved to add it to the root.

The board’s decision yesterday merely sets out the track towards that eventuality, with a few hurdles scattered along the way. In conversation with ICM people, I get the impression they believe the hurdles are low and easily surmountable.

Crucially for ICM, the issue of community support, the stick with which ICANN nearly killed .xxx back in 2007, is now off the table. There will be a quick review of ICM’s books and technical capabilities, but the views of the porn industry now seem pretty much irrelevant.

The only real way I can see .xxx being derailed again now is if the Governmental Advisory Committee issues future advice that unequivocally opposes the TLD.

As Kieren McCarthy noted in some detail over on CircleID, the GAC has never had a hell of a lot of substantial advice to impart about .xxx in its official communiques, so it’s difficult to see where a clash could arise based on its previous missives.

But with the GAC currently using bogus “morality and public order” arguments to jerk everybody around with regards the next new TLD round, it’s not entirely impossible that it could lob one final grenade in ICM’s direction.

This story ain’t over yet.

Council of Europe wants ICANN role

Kevin Murphy, June 7, 2010, Domain Policy

The Council of Europe has decided it wants to play a more hands-on role in ICANN, voting recently to try to get itself an observer’s seat on the Governmental Advisory Committee.

The Council, which comprises ministers from 47 member states, said it “could encourage due consideration of fundamental rights and freedoms in ICANN policy-making processes”.

ICANN’s ostensibly technical mission may at first seem a bit narrow for considerations as lofty as human rights, until you consider areas where it has arguably failed in the past, such as freedom of expression (its clumsy rejection of .xxx) and privacy (currently one-sided Whois policies).

The Council voted to encourage its members to take a more active role in the GAC, and to “make arrangements” for itself to sit as an observer on its meetings.

It also voted to explore ways to help with the creation of a permanent GAC secretariat to replace the current ad hoc provisions.

The resolution was passed in late May and first reported today by IP Watch.

The Council of Europe is a separate entity to the European Union, comprising more countries. Its biggest achievement was the creation of the European Court of Human Rights.