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Former ICANN chief speaks out against new TLD morality veto

Kevin Murphy, October 26, 2010, Domain Policy

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.

Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.

The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.

There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.

But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.

Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.

He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.

Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.

He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”

A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.

Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.

I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.

Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.

His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

Review reveals ccTLD fast-track criticisms

Kevin Murphy, October 25, 2010, Domain Registries

ICANN has launched a review of its internationalized domain name fast-track process, revealing a number of criticisms its country-code domain applicants have apparently had.

The IDN ccTLD Fast Track Process is a way for ccTLD operators to quickly start selling fully non-Latin domains in their own local script.

It’s so far been successfully used to delegate IDN ccTLDs in Arabic, Chinese and Cyrillic scripts, among others.

ICANN now wants to know if it should make any improvements to the process and has opened a 60-day public comment period to solicit suggestions.

Because quite a lot of the Fast Track takes place behind closed doors, ICANN has also offered up a fairly revealing list of possible discussion topics.

It appears that the process has created new pressure points between ICANN and international governments, which are often formally affiliated with their ccTLDs.

For example, some governments dislike the fact that Fast Track requires the applicant to show support for its chosen string from its local community. ICANN reported:

Some [applicants] do not find it necessary to demonstrate community support for the string nor the manager. The reason being that such decisions can be made by government entities, and the need for support undermines the authority of the government in the country or territory.

There also appears to have been a bit of push-back from governments on the issue of “meaningfulness”, where applicants have to show their requested string adequately represents their territory’s name.

ICANN said:

Some requesters have stated that this requirement is not necessary in cases where the strings requested are agreed to by the government and otherwise seem obviously meaningful.

In a concession to governments with sovereignty or financial concerns, ICANN does not charge an up-front fee for handling IDN ccTLD requests under the Fast Track.

Instead, it “recommends” a processing fee of $26,000 per string, which it invoices toward the end of the process, plus an ongoing 1-3% of IDN registration revenue.

So far, it has received $106,000 (covering presumably four strings, accounting for exchange rates), indicating that there are 11 IDN ccTLDs currently in the root that have not yet been paid for.

It will be interesting to see how many ccTLDs ultimately choose to pay up, and how many are happy for ICANN’s costs to be covered by fees paid by gTLD registrants like me and you.

The Fast Track review may also cover the topic of disputes and appeals. Currently, there is no dedicated mechanism by which a ccTLD that has had its requested string rejected can ask for reconsideration.

ICANN asks whether this should be changed.

Earlier this year, Bulgaria had its request for .бг (.bg) declined on the grounds that it looks too much like Brazil’s Latin ccTLD, .br and said it planned to appeal.

The ICANN public comment period, with the full list of suggested discussion topics, can be found here.

Trademark lobby keeps up pressure on ICANN

Kevin Murphy, October 24, 2010, Domain Policy

The International Trademark Association is continuing to press ICANN into commissioning a study of the potential economic “harms” its new top-level domain program could cause.

INTA executive director Alan Drewsen earlier this month sent ICANN a quick reminder (pdf) that it expects to see the study carried out before the new TLD application round launches.

The trademark lobby believes that new TLDs will increase costs to brand-conscious businesses through an increase in the number of defensive registrations and dispute proceedings they have to pay for.

ICANN hired some third-party analysts to look into the issue, and published a preliminary report in July that basically just speculated about studies that could be carried out in future.

The plan was to carry out a second-phase study, which was to begin after public comments on the first report had been analyzed and summarized by ICANN staff.

Three months after the public comment period closed, this analysis has not been published and there’s no news on phase two.

INTA’s latest missive also notes that the ICANN board does not appear to have discussed the economic study at its Trondheim meeting in September.

Drewson also refers back to previous correspondence, sent in early September by INTA president Heather Steinmeyer, in which she wrote:

trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

It’s not clear to me whether ICANN also thinks the study needs to be completed before the new TLD program launches.

Such a study would presumably take some considerable time to compile, and noises from ICANN currently point to the program becoming finalized at some point in the next six months.

If the study were to conclude that new TLDs would be hugely financially damaging, after three years of work… well, red faces would be the very least concern.

Native American domain gives .jobs critics ammo

Kevin Murphy, October 22, 2010, Domain Registries

The coalition of companies opposed to the expansion of the .jobs top-level domain seems to think it has found a ‘gotcha’ in the recent registration of nativeamerican.jobs.

The domain leads to a site listing jobs that are identified, for whatever reason, as being particularly suitable for Native Americans. It’s based on an earlier site at ndianjobs.com

The .jobs TLD was originally intended to allow human resources departments to list their corporate job openings using only their own company name or brand in the domain.

The .JOBS Charter Compliance Coalition, made up of a number of jobs portals including Monster.com, now points to nativeamerican.jobs as an example of .jobs registry Employ Media breaking its charter commitments.

The Coalition wrote to ICANN yesterday in support of its effort to get ICANN to overturn its recent decision on .jobs liberalization.

In August, ICANN told the registry that it could start accepting non-company-name .jobs registrations through a “phased allocation process” that involves an RFP and possibly auctions.

But the Coalition contends that the amended registry contract does not allow Employ Media to break its Charter commitment to restrict registrations to purely human resources registrants.

It could not be clearer that Employ Media is using the Board’s approval of the Phased Allocation Program to transform the fundamental nature of the .JOBS sponsored top level domain from a site for employers to link directly with job seekers to a generic employment services theme park – in clear violation of the .JOBS charter, and without the smallest consideration of third party rights.

These “third-party rights” include the owner of nativeamericanjobs.com, who presumably did not have the chance to register the contested domain.

It’s not clear whether the Coalition statement is entirely correct, however.

Judging from Whois records, the domain nativeamerican.jobs was registered in May, prior to ICANN’s board approving the .jobs registry contract changes.

It was certainly registered prior to the closure of the initial RFP stage of Employ Media’s phased allocation program.

The Coalition has a Reconsideration Request pending. ICANN earlier this week asked Employ Media to respond to 13 questions about its plans.

New TLDs dominate ICANN board agenda

Kevin Murphy, October 22, 2010, Domain Policy

ICANN has published the agenda for next Thursday’s board meeting and unsurprisingly the new top-level domain process dominates.

The agenda breaks the discussion into several bullet points.

Of interest to absolutely everybody watching the new TLD process is the first bullet – “Update on Timeline”. Everyone wants to know when the Applicant Guidebook will be finalized.

Recently, it became apparent that ICANN seems to view the next draft of the guidebook as a possible candidate for “final” status. As I blogged earlier this week, it could be published in the next two weeks.

The issues of vertical integration of registry and registrar functions, the “Rec 6” objections process, and the Governmental Advisory Committee advice on geographic names are also on the agenda.

The meeting will also discuss the approval of Qatar’s internationalized domain name country-code TLD and the redelegation of the .qa ccTLD to a new entity.

Qatar’s chosen Arabic string was approved back in March, at the same time as other strings that have already been added to the root, so I can only assume that the redelegation issue was what caused the hold-up.

The perennially controversial .xxx application is also due to be wheeled out for another hearing.