Still no new TLDs agreement with GAC

ICANN and its Governmental Advisory Committee have yet to resolve their differences over the new top-level domains program, putting a question mark over the current approval timetable.

In a joint statement released early this morning, following a teleconference on Friday, the ICANN board and GAC confirmed that their talks have not yet concluded.

But ICANN still thinks approval of the program’s Applicant Guidebook could come by June 20, the second day of the forthcoming Singapore meeting:

The latest discussion and ICANN Board and GAC agreement on the benefits of having a face-to-face meeting in Singapore pave the way to possible Board consideration of program approval on 20 June 2011.

This seems to serve as confirmation that the board and GAC will meet for a last-ditch attempt at compromise on June 19. ICANN has already moved around schedules to accommodate the meeting.

Outstanding areas of disagreement continue to include rights protection mechanisms for trademark holders and processes for governmental objections to controversial TLD applications.

Negotiations so far have comprised at least four days of face-to-face talks over the last few months, which had mixed results.

ICANN has given a lot of ground already, but it seems that it has not gone far enough for the GAC. Chair Heather Dryden said in the statement:

the GAC appreciates the time taken by the Board to discuss remaining issues on the call and looks forward to continued progress as a clear signal that the Board is committed to enabling the formulation of true community consensus in developing policy that is in the global public interest as well as increasing the overall accountability and transparency of the organization.

The current talks take place against the backdrop of the renewal of ICANN’s IANA contract with the US Department of Commerce and NTIA, which gives ICANN many of its powers.

Larry Strickling, head of the National Telecommunications and Information Administration, has publicly indicated that he may use the renewal as leverage to squeeze concessions from ICANN.

Two weeks ago, he said that he was “unclear” about whether June 20 was a realistic target for Guidebook approval.

Recently, Strickling also met with European Commissioner Neelie Kroes where they found common ground on new gTLDs and ICANN’s accountability and transparency goals.

African Union yanks .africa bid support, seeks registries

The African Union has called for registry operators to express their interest in managing the proposed .africa top-level domain.

It has also confirmed that it is not currently backing DotConnectAfrica’s longstanding bid to apply to ICANN to operate .africa.

DCA has for some time been touting its support from a number of African governments, including the AU, which is required for a geographic TLD bid to be approved by ICANN.

But the AU said in a statement last week:

The AU Commission was at some point approached by an organization now known as DCA seeking endorsement and support for in its bid to use of the domain name.

…

The AU Commission would like to hereby categorically state that it is not supporting any one individual or organization in this bid.

The statement glosses over the August 2009 letter from AU Commission chairman Jean Ping, which offers to aid DCA with its efforts to gain government support for .africa.

With its support for DCA no longer applicable, the AU yesterday issued its official call for Expressions of Interest from experienced registry operators:

DotAfrica will serve a community which spans over a large portion of region, therefore providing registrants with accrued possibilities for establishing their Internet presence. It is expected that the Africa small and medium size enterprises will greatly benefit from DotAfrica, as they thrive beyond their local markets to invade the regional and continental marketplace.

The EOI does not set out any guidance on what the AU expects to see in a proposal – it doesn’t even specify whether it’s looking for a sponsor or a back-end operator – it merely asks for audited financial statements and a potted corporate bio.

The deadline for the EOI is June 3.

The .africa bid has become fiercely political recently, with DCA throwing around accusations of corruption and back-room dealing.

Its outrage has been centered largely on an AU task force on .africa that was created last November, and its chairman, Nii Quaynor.

He is the registrant of dotafrica.org, which was previously used in a .africa bid that competed with DCA’s.

Other task force members are involved with AfTLD, the African ccTLD association that has also announced it is preparing a .africa bid.

In a blog post this week, DCA calls for the task force to be abandoned.

Does Obama endorse Whois privacy?

The US government today released its latest International Strategy For Cyberspace, and it seems to acknowledge privacy rights in domain name registration.

The 30-page document (pdf) envisions a future of the internet that is “open, interoperable, secure, and reliable” and “supports international trade and commerce, strengthens international security, and fosters free expression and innovation”.

It calls for the US and its international partners to set norms that value free speech, security, privacy, respect for intellectual property and (because this is America, remember) the right to self-defense.

Domain names get a mention, in a statement that could be read, without much of a stretch of the imagination, as support in principle for private Whois records:

In this future, individuals and businesses can quickly and easily obtain the tools necessary to set up their own presence online; domain names and addresses are available, secure, and properly maintained, without onerous licenses or unreasonable disclosures of personal information.

That’s open to interpretation, of course – you could debate for years about what is “unreasonable” – but I’m surprised Whois privacy merited even an oblique reference.

Most government and law enforcement statements on the topic tend to pull in the opposite direction.

The new strategy also seems to give ICANN – or at least the ICANN model – the Administration’s support, in a paragraph worth quoting in full:

Preserve global network security and stability, including the domain name system (DNS). Given the Internet’s importance to the world’s economy, it is essential that this network of networks and its underlying infrastructure, the DNS, remain stable and secure. To ensure this continued stability and security, it is imperative that we and the rest of the world continue to recognize the contributions of its full range of stakeholders, particularly those organizations and technical experts vital to the technical operation of the Internet. The United States recognizes that the effective coordination of these resources has facilitated the Internet’s success, and will continue to support those effective, multi-stakeholder processes.

NTIA calls for ICANN to “walk the walk”

A US National Telecommunications and Information Administration official today said ICANN needs to prove it can “walk the walk” when it comes to accountability and transparency.

Speaking on a panel at the inaugural Nominet .uk Policy Forum here in London today, NTIA associate administrator Fiona Alexander said it was time for ICANN to “up its game”

On a panel about regulatory systems for the internet, Alexander reiterated US support for the ICANN model, but said that ICANN board too often acts without the consensus of its stakeholders.

Quoting from speeches made by her boss, assistant secretary Larry Strickling, she said the US supports the December recommendations of ICANN’s Accountability and Transparency Review Team.

“The ICANN board has until June to implement these recommendations,” she said.

It wasn’t clear whether that was a slip of the tongue, or an indication that the NTIA plans to hold ICANN’s feet to the fire over its implementation timetable.

The Affirmation of Commitments calls for ICANN to “take action” on the ATRT report by June 30, but ICANN is planning a longer-term roll-out

It has some good reasons for tardiness. Adopting the ATRT-recommended changes to its relationship with the Governmental Advisory Committee, for example, will require more bandwidth than ICANN and the GAC have to offer before the June deadline.

“Governments are only going to want to get more involved, not less,” Alexander said.

The Obama administration has a lot of political capital tied up in the idea of “multistakeholderism” – it’s a model it proposes for other fora – but its would-be poster child, ICANN, has a habit of frequently looking more like a red-headed poster step-child.

“It’s time to up your game,” Alexander said of ICANN, “because this really is the model that we need to work.”

.brand TLDs still face barriers

Companies planning to apply for “.brand” top-level domains still have concerns that ICANN’s new gTLD program does not adequately cater to their unique requirements.

ICANN has so far resisted calls from the likes of the Coalition for Online Accountability to create clearly delineated categories of gTLD, instead favoring the one-size-fits-all approach.

But one type of gTLD where the Applicant Guidebook has started to introduce exceptions to the rules is the so-called “.brand”.

In its latest draft, for example, the Guidebook’s Code of Conduct for vertically integrated registries/registrars does not apply to single-registrant TLDs such as .brands.

The Guidebook also makes it mostly clear that ICANN does not intend to re-assign .brands to different registry operators in the event that the brand decides to discontinue the TLD.

But those who are working with potential .brand applicants still have concerns.

Co-existence

Arguably biggest outstanding problem to emerge from the latest set of comments filed with ICANN is the notion of “co-existence”, raised by the likes of Valideus, ECTA and the Business Constituency.

The Guidebook currently calls for TLDs that are potentially confusing in meaning or appearance to be lumped into the same “contention sets” from which only one winner will emerge.

The worry is that this will capture companies with similar sounding brands. ECTA called for a mechanism to exclude .brands from these requirements:

The Draft Applicant Guidebook 6 does not take into account either co‐existence agreements or natural co‐existence. Currently a successful application from NBC in round one would preclude ABC or BBC or NBA in future years. Equally, should both EMI, the music company and ENI, the energy company apply, they would be placed in a Contention Set and could in theory face each other in an auction. In the real world these companies co‐exist.

It’s an interesting point, and not one that’s received a great deal of airplay in recent discussions.

There’s also the problem that companies with two-letter brands, such as HP or BP, are essentially banned from getting their .brand, because there’s a three-letter minimum on new TLDs.

Geographic name protections

The ICANN Governmental Advisory Committee has pushed hard for the protection of geographical terms at the second level in new gTLDs, and has won significant concessions.

One of the results of this is that if Canon, say, has .canon approved, it will be unable to immediately use usa.canon or japan.canon domains names – one of the most logical uses of a .brand.

ICANN plans to enable registries to loosen up these restrictions, but the Guidebook does not currently spell out how this will happen, which leaves a significant question mark over the value of a .brand.

ECTA wrote in its comments to ICANN:

This prohibition severely limits brand owners unnecessarily. On the contrary a .brand domain should provide clients with an intuitive replacement for ccTLDs. It would seem to be more logical if Internet users could replace www.mycompany.de with www.de.mycompany rather than having to type www.mycompany/de.

Registrar discrimination

The BC has called for the Guidebook to be rephrased to made it clear that .brand TLDs should not have to offer their domains through a multitude of registrars on “non-discriminatory” terms.

The BC wants this language adding to the rules: “Single-Registrant TLDs may establish discriminatory criteria for registrars qualified to register names in the TLD.”

Given .brands will have essentially one customer, it would be a pretty crazy situation if more than one registrar was approved to sell them. It may be a hypothetical risk, but this is a strange industry.

UDRP

All new gTLD registries will have to abide by the Uniform Dispute Resolution Process. The problem is that successful UDRP cases generally result in a domain name being transferred to the complainant.

This could result in a situation where a third-party trademark holder manages to win control a domain name in a competitor’s .brand TLD, which would be intolerable for any brand owner.

The BC suggests that domains won in this way should be allowed to be set to “reserved and non-resolving” instead of changing hands.