.wine is a go

Kevin Murphy, March 26, 2014, Domain Policy

ICANN has approved the new gTLDs .wine and .vin, despite objections from the European Union.

In a resolution this weekend, published today, its board’s New gTLD Program Committee said “that the applications for .WINE and .VIN should proceed through the normal evaluation process.”

The resolution acknowledges the Governmental Advisory Committee’s lack of consensus against the two wine-related gTLDs, but not the EU’s view that geographic indicators such as “Champagne” should be protected.

European nations thought both gTLDs should be put on hold until the applicants agreed to these special protections, but the US, Australia and other nations disagreed.

ICANN sought the legal opinion (pdf) of a French law professor in its decision-making.

The EU is going to be pretty angry about this, but in the absence of a consensus objection from the GAC against the strings, it appears that the NGPC has made the right call in this case.

Despite IRP, .africa gets a new gTLD contract

Kevin Murphy, March 26, 2014, Domain Registries

ICANN has signed a Registry Agreement with ZA Central Registry for the new gTLD .africa, despite the string being subject to a legal dispute.

The RA was signed with the South African applicant on Monday.

Rival .africa applicant DotConnectAfrica filed an Independent Review Process complaint against ICANN in January, claiming the rejection of its bid, which came because it lacked government support, was “unfair, discriminatory, and lacked appropriate due diligence and care”.

Now that ZACR is a contracted party — meaning that .africa is likely to hit the root in two or three months — it will be very difficult for DCA to get appropriate recompense should it win the IRP.

Fortunately for ICANN, I think there’s a better chance of me getting elected Pope.

.hotels applicant files IRP on ICANN

Kevin Murphy, March 25, 2014, Domain Policy

New gTLD applicant Booking.com has filed an Independent Review Process complaint against ICANN.

ICANN and Booking.com attorney Flip Petillion of Crowell & Moring confirmed the filing with DI this evening. Earlier Belgian newspaper reports of a full-on lawsuit appear to be inaccurate.

The IRP — ICANN’s final appeals process, designed to avoid lawsuits — is related to the .hotels contention set.

Booking.com’s uncontested application for .hotels was placed into a contention set with Despegar Online’s bid for .hoteis (the Portuguese translation) by ICANN’s independent String Similarity Panel in February 2013.

The panel ruled that the two strings are too confusingly similar to coexist on the internet, due to the similarity between the letters I and L.

That means the two applicants either had to resolve their differences privately, which apparently hasn’t happened, or enter into a potentially expensive ICANN auction of last resort.

Booking.com seemingly wants to avoid that auction, hence the IRP.

It’s the second IRP to be filed by a new gTLD applicant in this round, after DotConnectAfrica’s January filing.

ICANN tells me the IRP documents will be posted on its web site later today.

OMG! gTLD applicant actually wins objection appeal

Kevin Murphy, March 24, 2014, Domain Policy

Medistry has become the first new gTLD applicant to win an appeal to ICANN over an objection decision that went against it.

The .med hopeful has also become the first entity in years to successfully use the much-derided Reconsideration Request process to get ICANN’s board of directors to revisit a decision.

The company’s application received a Community Objection filed by the new gTLD program’s Independent Objector, Alain Pellet, along with a bunch of other healthcare-related gTLD bids.

Medistry lost, meaning its application should be dead in the water.

But it appealed using the Reconsideration process, arguing that Pellet failed to follow the rules laid out for the IO in the program’s Applicant Guidebook.

These rules state that the IO can only object on Community grounds if there is at least one informal objection from a community member on the public record, for example filed as ICANN comments.

Medistry claims that the IO did not pass that test in its case and the ICANN board’s Board Governance Committee, which handles Reconsideration Requests, reckons that claim merits further review.

Judging by the International Chamber of Commerce decision (pdf), comments filed by the National Association of Boards of Pharmacy and the American Hospital Association were critical in showing “substantial opposition” from the healthcare community.

Without such opposition, the IO would have had no right to object.

Medistry argued during the objection case that the NABP comment, which talks about the need for patient safety, was purely “advisory” in nature and did not represent an objection to its .med application.

The ICC panelist, Fabian von Schlabrendorff, disagreed, writing:

The Expert Panel accepts that the comments made by the National Association of Boards of Pharmacy (NABP), on which the Independent Objector relies for the purpose of demonstrating substantial opposition, represent an expression of opposition, i.e. resistance or dissent, to the Application, going beyond merely having an advisory character as the Applicant suggests.

The problem with that interpretation is that it turns out to be dead wrong. Von Schlabrendorff read too much into the original NABP comment.

Medistry submitted as part of its Reconsideration Request a letter from NABP saying:

We wish to clarify that NABP’s comment was intended to be advisory in nature, stressing that health-related gTLDs should account for patient safety and implement protections against fraud and abuse. In submitting this comment, NABP did not oppose Medistry’s application to be the Registry Operator for the .MED gTLD, nor take any position as to whether Medistry’s .MED application contained appropriate safeguards.

The second public “objection” used by the IO to allege substantial opposition, an argument that von Schlabrendorff accepted, came from the America Hospital Association.

Except the AHA did not file a comment on the Medistry application (well, it did, but it was withdrawn two days later in September 2012, long before the objection process began).

The AHA did object to the other three applications for .med, filed by Google, Hexap and DocCheck, but not to Medistry’s application.

Remarkably, von Schlabrendorff chose to interpret the absence of an AHA objection as the existence of an AHA objection, speculating that it did not object to Medistry’s application due to nothing more than an oversight, and applied its objections against Medistry regardless.

even if the Applicant had established in understandable and verifiable detail that the AHA on purpose decided not to oppose the Application, such decision of the AHA would and could not change the fact that the NABP expressed opposition to the Application on grounds of public health concerns, and that the AHA raised essentially identical concerns with regard to all other .med applications.

To me, this looks like Medistry was given the Kafkaesque challenge of proving that the AHA had not objected to its application, even though there was no such objection on record.

Using a von Schlabrendorff level of speculation, I’m guessing that the AHA did file an objecting comment originally, but withdrew it a couple of days later when informed that Medistry’s parent company is an AHA member.

Given that the NABP and AHA “objections” both turned out to be non-existent, the ICANN BGC has naturally enough decided that the Medistry Reconsideration Request merits further consideration.

The BCG wrote (pdf):

the BGC finds that Request 14-1 should be granted to provide sufficient time to further evaluate whether any actions were taken in contravention of established policy or procedure, such as whether the threshold requirement set forth in Section 3.2.5 of the Guidebook was satisfied. The BGC will ensure that ICANN further evaluates this issue and provides a report to the BGC for consideration

It is important to note that the BGC’s acceptance of this Reconsideration Request should in no way reflect poorly on the IO or be seen as a finding that the IO failed to properly discharge his duties. Rather, this determination is a recognition that the Requester has submitted substantial information indicating that the IO’s assessment of what could be described as vague comments (particularly those of NABP), may not have been consistent with what the commenters intended.

What this seems to mean is that the Medistry application for .med is undeaded and that von Schlabrendorff’s increasingly dodgy-looking decision is going to be looked at.

It also means that Reconsideration Requests are not entirely useless.

No Reconsideration Request of any consequence has been accepted by the BCG in the 15 years the procedure has been active.

Generally, they’re thrown out because the requester fails to provide any new information that wasn’t available at the time the offending decision is made, which is a prerequisite for success.

In this case, Medistry’s production of the NABP letter of clarification seems to have been critical.

Who runs the internet? An ICANN 49 primer

Kevin Murphy, March 24, 2014, Domain Policy

The ICANN 49 public meeting is kicking off here in Singapore right now, and control of the domain name system is going to be the hottest of hot topics for the next four days.

Two Fridays ago the US government announced its plan to remove itself from oversight of key internet functions currently managed by ICANN, causing a firestorm of controversy in the US.

A lot of the media commentary has been poorly informed, politically motivated and misleading.

According to this commentary, the move means that regimes more repressive that the United States government are going to take over the internet, killing off free speech.

Here I present a backgrounder on the issue, a primer for those who may not be familiar with the history and the issues. ICANN addicts may find the latter half of the piece interesting too, but first…

Let’s go back to basics

The issue here is control over the DNS root zone file. Basically, the root zone file is a 454K text file that lists all the top-level domains that are live on the internet today.

Each TLD is listed alongside the DNS name servers that it is delegated to and control it. So .com has some name servers, .uk has some name servers, .info has some name servers, etc.

If an internet user in San Francisco or London or Ulan Bator tries to visit google.com, her ISP finds that web site by asking the .com zone file for its IP address. It finds the location of the .com zone file (managed by Verisign) in turn by asking the root zone file.

The root zone files are served up by 13 logical root zone servers named A through M, managed by 12 different entities. Verisign runs two. ICANN runs one. Most are US-based entities.

Every root server operator agrees that Verisign’s root is authoritative. They all take their copies of the root zone file from this server. This keeps the data clean and consistent around the world.

So Verisign, in terms of actually sitting at a keyboard and physically adding, deleting or amending entries in the root zone file, has all of the power over the internet’s DNS.

Verisign could in theory assign .uk or .xxx or .com to name servers belonging to Canada or the Vatican or McDonalds or me.

But in practice, Verisign only makes changes to the root zone when authorized to do so by the US National Telecommunications and Information Administration, part of the Department of Commerce.

That’s because Verisign’s power to amend the root zone comes from its Cooperative Agreement with NTIA.

Amendment 11 (pdf) of this agreement dates from 1999, a time before Verisign acquired Network Solutions (NSI) and before ICANN had a name and was known as “NewCo”. It states:

NSI agrees to continue to function as the administrator for the primary root server for the root server system and as a root zone administrator until such time as the USG instructs NSI in writing to transfer either or both of these functions to NewCo or a specified alternate entity.

While NSI continues to operate the primary root server, it shall request written direction from an authorized USG official before making or rejecting any modifications, additions or deletions to the root zone file. Such direction will be provided within ten (10) working days and it may instruct NSI to process any such changes directed by NewCo when submitted to NST in conformity with written procedures established by NewCo and recognized by the USG.

So the power to amend the root zone — and therefore decide which TLDs get to exist and who gets to run them — actually lies in NTIA’s hands, the hands of the US government.

NTIA says its role is “largely symbolic” in this regard.

That’s because the power to decide what changes should be made to the root zone has been delegated to ICANN via the “IANA functions” contract.

What you’re looking at here is a diagram, from the latest IANA contract, showing that whatever changes ICANN proposes to make to the root (such as adding a new gTLD) must be authorized by NTIA before somebody at Verisign sits at a keyboard and physically makes the change.

In the diagram, “IANA Functions Operator” is ICANN, “Administrator” is NTIA, and “Root Zone Maintainer” is Verisign.

What NTIA now proposes is to remove itself from this workflow. No longer would ICANN have to seek a US government rubber stamp in order to add a new TLD or change ownership of an existing TLD.

It’s possible that Verisign will also be removed from the diagram. ICANN runs a root server already, which could replace Verisign’s A-root as the authoritative one of the 13.

NTIA says that the Cooperative Agreement and the IANA contract are “inextricably intertwined” and that it will “coordinate a related and parallel transition in these responsibilities.”

If this all sounds dry and technical so far, that’s because it is.

So why is it so important?

An entry in the DNS root zone has economic value. The fact that the record for .com points to Verisign’s name servers and not yours means that Verisign is worth $7 billion and you’re not.

Whoever has power over the root therefore has the ability to dictate terms to the entities that want their TLD listed.

ICANN’s contract with Verisign makes Verisign pay ICANN $0.25 for every .com name sold, for example.

The contract also forces Verisign to only sell its names via registrars that have been accredited by ICANN.

This gives ICANN, by indirect virtue of its control of the root, power over registrars too.

The Registrar Accreditation Agreement contains terms that require registrars to publish, openly, the names and addresses of all of their customers, for example.

Suddenly, control of the root is not only about lines in a database, it’s about consumer privacy too.

The same goes for other important issues, such as free speech.

Should people have the right to say that a company or a politician “sucks”? Most of us would agree that they should.

However, if they want to register a .sucks domain name in future they’re going to have to abide by rules, developed by ICANN and its community, that protect trademark owners from cybersquatting.

Over the course of many years, ICANN has decided that trademark owners should always have the right to preemptively register any domain name that matches their brands. This will apply to .sucks too.

If I, militant vegetarian that I am, wanted to register mcdonalds.sucks after .sucks becomes available, there’s a significant probability that I’m not going to get the opportunity to do so.

Of course, there’s nothing stopping you and I publishing our opinion of a worthless politician or corrupt company in other ways using other domain names, but it remains true that ICANN has essentially prioritized, for very good reasons, the rights of trademark owners over the rights of other internet users.

Theoretically, at some point in the future, ICANN could amend the Registrar Accreditation Agreement to require registrars to, for example, always deactivate a domain name when they receive a cease and desist letter, no matter how unfounded or spurious, from a trademark lawyer.

Suddenly, the web belongs to the IP attorneys, free speech is damaged, and it’s all because ICANN controls the DNS root.

I’m not saying that’s going to happen, I’m just using this as an example of how ruling the root has implications beyond adding records to a database.

What does US oversight have to do with this?

The question is, does the US removing itself from the root zone equation have any impact on what ICANN does in future? Has the US in fact been a good custodian of the root?

Commentators, many of them Republicans apparently seizing on the NTIA’s move as the latest opportunity to bash President Obama’s administration, would have you believe that the answer is yes.

I’m not so sure.

The US in fact has a track record of using its power in ways that would reduce free speech on the internet.

Back in 2005, there was a controversy about ICANN’s decision to add .xxx — a top-level domain for pornography — to the root zone. Whatever you think about porn, this is undeniably a free speech issue.

The US government, under the Bush administration, was initially ambivalent about the issue. Then a bunch of right-wing religious groups started lobbying the NTIA en masse, demanding .xxx be rejected.

The NTIA suddenly switched its position, and actually considered (ab)using its power over the root zone to block .xxx’s approval and therefore appease the Republican base.

This all came out due to .xxx operator ICM Registry’s Freedom of Information Act requests, which were detailed in the the declaration (pdf) of an Independent Review Panel — three neutral, respected judges — that oversaw ICM’s appeal against ICANN:

Copies of messages obtained by ICM under the Freedom of Information Act show that while officials of the Department of Commerce concerned with Internet questions earlier did not oppose and indeed apparently favored ICANN’s approval of the application of ICM, the Department of Commerce was galvanized into opposition by the generated torrent of negative demands, and by representations by leading figures of the so-called “religious right”, such as Jim Dobson, who had influential access to high level officials of the U.S. Administration. There was even indication in the Department of Commerce that, if ICANN were to approve a top level domain for adult material, it would not be entered into the root if the United States Government did not approve

US lobbying via ICANN’s Governmental Advisory Committee and other channels had the effect that ICANN rejected ICM’s .xxx application. It’s only because ICM was prepared to spend years and millions of dollars appealing the decision that .xxx was finally added to the root.

When you read an article claiming that the US government relinquishing its root oversight role will have a negative effect on free speech, ask yourself what the record actually shows.

The .xxx case is the only example I’m aware of the US leveraging or preparing to leverage its oversight role in any way. On free speech, USG is 0 for 1.

The US is also a powerful member of the Governmental Advisory Committee, the collection of dozens of national governments that have a strong voice in ICANN policy-making.

Under the rules of the new gTLD program, the GAC has right to veto any new gTLD — prevent it being added to the DNS root zone — if all the governments on the GAC unanimously agree to the veto.

Currently, there’s a controversy about the proposed gTLD .amazon, which has been applied for by the online retail behemoth Amazon.

Latin American countries that count the Amazonia region and Amazon river as part of their territories don’t want it approved; they believe they have the better rights to the .amazon string.

Despite this outrage, the GAC initially could not find unanimous consensus to veto .amazon. It transpired that the US, no doubt protecting the interests of a massive US-based corporation, was the hold-out.

Last July, NTIA decided to drop its opposition to the veto, leading to a GAC consensus that .amazon should be rejected.

In its position paper (pdf) announcing the .amazon veto block reversal, NTIA said the US “affirms our support for the free flow of information and freedom of expression”.

By its own definitions, the US made a decision that harmed free expression (not to mention Amazon’s business interests). It seems to have done so, again, in the name of political expediency.

I’m not saying that the US decision was right or wrong, merely that the record again shows that it’s not the great protector of free speech that many commentators are making it out to be.

What should replace the US?

The question for the ICANN community this week in Singapore and over the coming months is what, if anything, should replace the US in terms of root zone oversight.

The NTIA has been adamant that a “multi-stakeholder” solution is the way to go and that it “will not accept a proposal that replaces NTIA’s role with a government-led or an inter-governmental solution.”

The weirdness in this statement, and with the whole transition process in general, is ICANN is already a multi-stakeholder system.

In light of the US’ longstanding “hands off” approach (with the aforementioned exception of .xxx), does ICANN even need any additional oversight?

Today, legislative power in ICANN resides with its board of directors. The ICANN staff wield executive control.

In theory and under ICANN’s extensive governance rules, the board is only supposed to approve the consensus decisions of the community and the staff are only supposed to execute the wishes of the board.

In practice, both board and staff are often criticized for stepping beyond these bounds, making decisions that do not appear to have originated in the community policy-making process.

The ruling on vertical integration between registries and registrars, where the community could not even approach consensus, appears to have originated with ICANN’s legal department, for example.

There has also been substantial concern about the extent of the power handed to hand-picked advisory panels created by CEO Fadi Chehade recently.

In that light, perhaps what ICANN needs is not oversight from some third party but rather stronger community accountability mechanisms that prevent capture and abuse.

That’s certainly my view today. But I don’t have any particularly strong feelings on these issues, and I’m open to have my mind changed during this week’s discussions in Singapore.