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ICANN fights government gTLD power grab

Kevin Murphy, July 22, 2011, Domain Policy

ICANN has opposed a US move to grant governments veto power over controversial new top-level domain applications.

Cutting to the very heart of Obama administration internet governance policy, ICANN has told the National Telecommunications and Information Administration that its recent proposals would “undermine the very principle of the multi-stakeholder model”.

The stern words came in ICANN’s response to the NTIA’s publication of revisions to the IANA contract, the contract that allows ICANN to retain its powers over the domain name system root.

The NTIA’s Further Notice Of Inquiry contained proposed amendments to the contract, including this:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was widely interpreted as a US attempt to avoid a repeat of the .xxx scandal, when ICANN approved the porn gTLD despite the unease voiced by its Governmental Advisory Committee.

As I noted in June, it sounds a lot like code for “if the GAC objects, you must reject”, which runs the risk of granting veto powers to the GAC’s already opaque consensus-making process.

In his response to the FNOI (pdf), ICANN chief Rod Beckstrom says that the NTIA’s proposal would “replace” the “intensive multi-stakeholder deliberation” that created the newly approved Applicant Guidebook.

He also pointed out the logical inconsistency of asking IANA to remain policy-neutral in one part of the proposed contract, and asking it to make serious policy decisions in another:

The IANA functions contract should not be used to rewrite the policy and implementation process adopted through the bottom-up decision-making process. Not only would this undermine the very principle of the multi-stakeholder model, it would be inconsistent with the objective of more clearly distinguishing policy development from operational implementation by the IANA functions operator.

NTIA head Larry Strickling has been pounding the “multistakeholderism” drum loudly of late, most recently in a speech in Washington and in an interview with Kieren McCarthy of .nxt.

In the .nxt interview, Strickling was quite clear that he believes ICANN should give extra authority to governments when it comes to approving controversial strings.

The NTIA concern – shared by other government entities including the European Commission – is that controversial strings could lead to national blocking and potentially internet fragmentation.

While Strickling declined to comment on the specific provisions of the IANA contract, he did tell .nxt:

If the GAC as a consensus view can’t support a string then my view is that the ICANN Board should not approve the string as to do so in effect legitimizes or sanctions that governments should be blocking at the root zone level. And I think that is bad for the Internet.

Where you’re dealing with sensitive strings, where you’ve engaged the sovereignty of nations, I think it is appropriate to tip the hat a little bit more to governments and listen to what they say. On technical issues it wouldn’t be appropriate but on this particular one, you’ve got to listen a little bit more to governments.

He also indicated that the US would not necessarily stand up for its principles if confronted by substantial objections to a string from other governments:

So we would be influenced – I can’t say it would be dispositive – if a large number of countries have a problem with a particular string, even if it was one that might not be objectionable to the United States government.

And that is out of interest of protecting the Internet’s root from widespread blocking at the top-level by lots of governments.

Does this mean that the US could agree to a consensus GAC objection to a .gay gTLD? A .porn? A .freespeech? It certainly sounds like it.

Controversial TLD blocking still controversial

Kevin Murphy, May 30, 2011, Domain Policy

ICANN and its Governmental Advisory Committee have yet to reach agreement on when and how governments should be able to block top-level domains deemed too controversial to go live.

In its latest advice to ICANN’s board (pdf), the GAC gets a bit sniffy in response to calls for it to be more transparent about how such objections are raised.

The Applicant Guidebook currently requires ICANN to take GAC objections to TLD applications seriously, but only if the GAC reveals which nation(s) objected and why.

The GAC, predictably, seems to think ICANN is trying to undermine its authority. At the very least, it doesn’t like being told what to do:

The GAC advises the Board that the current text in Module 3 that seemingly dictates to the GAC how to develop consensus advice is problematic and should be deleted, as it is inconsistent with the ICANN Bylaws and the GAC’s Operating Principles.

The GAC has offered to refine its procedures to make “consensus advice” a more meaningful term, such as by adopting the UN’s definition of consensus, however.

Some believe that giving the GAC a carte blanche to file objections from its opaque decision-making black box will lead to back-room horse-trading.

You might find a bloc of theocratic nations, for example, refusing to agree to an objection to .nazi (an improbable application, admittedly) unless other governments agree to object to .gay.

And some observers in the west don’t trust their own governments to stand up for their principles and resist this kind of deal-making, particularly when there’s no transparency into the process.

The GAC, meanwhile, does not think the objections process has been sufficiently squared away for it to agree to it. It wrote:

The GAC strongly believes that further discussions are needed between the GAC and the ICANN Board to find a mutually agreed and understandable formulation for the communication of actionable GAC consensus advice regarding proposed new gTLD strings.

ICANN is due to publish the seventh (and “final”) draft of its Guidebook tonight. Its board is due to meet with the GAC next June 19, one day before it plans to vote on the program.

US wants veto power over new TLDs

Kevin Murphy, January 29, 2011, Domain Registries

The United States is backing a governmental power grab over ICANN’s new top-level domains program.

In a startling submission to the ICANN Governmental Advisory Committee, a copy of which I have obtained, the US says that governments should get veto power over TLDs they are uncomfortable with:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

In other words, if Uganda objected to .gay, Iran objected to .jewish, or Egypt objected to .twitter, and no other governments opposed those objections, the TLD applications would be killed off.

The fate of TLDs representing marginal communities or controversial brands could well end up subject to back-room governmental horse-trading, rather than the objective, transparent, predictable process the ICANN community has been trying to create for the last few years.

The amendments the US is calling for would also limit the right to object to a TLD on “morality” grounds to members of the GAC, while the current Applicant Guidebook is much broader.

The rationale for these rather Draconian proposals is stability and “universal resolvability”.

The worry seems to be that if some nations start blocking TLDs, they may well also decide to start up their own rival DNS root, fragmenting the internet (and damaging the special role the US has in internet governance today).

The US also wants TLDs such as “.bank” or “.pharmacy” more closely regulated (or blocked altogether) and wants “community” applications more strictly defined.

In the current ICANN Applicant Guidebook, any applicant can designate their application “community-based”, in order to potentially strengthen its chances against rival bids.

But the US wants the Guidebook amended to contain the following provisions:

“Community-based strings” include those that purport to represent or that embody a particular group of people or interests based on historical components of identity (such as nationality, race or ethnicity, religion or religious affiliation, culture or particular social group, and/or a language or linguistic group). In addition, those strings that refer to particular sectors, in particular those subject to national regulation (such as .bank, .pharmacy) are also “community-based” strings.

In the event the proposed string is either too broad to effectively identify a single entity as the relevant authority or appropriate manager, or is sufficiently contentious that an appropriate manager cannot be identified and/or agreed, the application should be rejected.

In practice, this could potentially kill off pretty much every vertical TLD you can think of, such as .bank, .music and .hotel. How many industries have a “single entity” overseeing them globally?

While the goal appears to be noble – nobody wants a .bank or .pharma managed by hucksters – the Community Objection procedure in the Guidebook arguably already provides protection here.

The US also wants the policy allowing the vertical integration of registries and registrars reining in, for TLD applicants to justify the costs their domains will incur on others, and a dramatic overhaul of the trademark protection mechanisms in the Guidebook.

In short, the US wants the new TLDs program substantially overhauled, in ways that are certain to draw howls of protest from many in the ICANN community.

The document does not appear to be official GAC policy yet. It could well be watered down before the GAC meets the ICANN board in Brussels at the end of February.

ICANN said earlier this week that it plans to approve a Guidebook “as close as practically possible” to the current draft, and heavily hinted that it wants to do so at its San Francisco meeting in March.

But if many of the US recommendations were to make it through Brussels, that’s a deadline that could be safely kissed goodbye.

What next for new TLDs? Part 4 – GAC Concerns

Kevin Murphy, December 15, 2010, Domain Policy

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this fourth post, I will look at areas of the AGB that the Governmental Advisory Committee is still concerned about.

GAC Concerns

The GAC’s laundry list of objections and concerns has grown with every official Communique it has released during an ICANN public meeting over the last few years.

While it has not yet published its official “scorecard” of demands for the home-stretch negotiations, it has released a list of 11 points (pdf) it wants to discuss with the board.

These 11 points can be grouped into a smaller number of buckets: objections and disputes procedures, trademark protection, registry-registrar separation, and the treatment of geographical names.

I wrote about the trademark issue in part one of this post.

The GAC appears to have adopted many of the arguments of the IP lobby – it thinks the AGB does not currently do enough to ensure the costs to business of new TLDs will be minimized – so we might expect that to be a major topic of discussion at the GAC-Board retreat in February.

I’ll be interested to hear what it has to say about registry-registrar separation.

The GAC has been pushing for some looser cross-ownership restrictions, in order to foster competition, since 2007, and most recently in September.

It has previously been in favor of restrictions on “insider” companies with market power, but for a more relaxed environment for new entrants (such as “community” TLDs that may largely operate under agreements with their local governments).

This position looks quite compatible with ICANN’s new vertical integration policy, to me, so I’m not sure where the GAC’s concerns currently lie.

The issue of disputes and objections may be the trickiest one.

The GAC basically wants a way for its members to block “controversial” TLD applications on public policy grounds, without having to pay fees.

The “Rec6” policy, previously known as “morality and public order objections” is one of the issues the ICANN board has specifically acknowledged is Not Closed.

This is from its Cartagena resolution:

Discussions will continue on (1) the roles of the Board, GAC, and ALAC in the objection process, (2) the incitement to discrimination criterion, and (3) fees for GAC and ALAC-instigated objections. ICANN will take into account public comment including the advice of the GAC, and looks forward to receiving further input from the working group in an attempt to close this issue.

GAC members on the Rec6 working group repeatedly highlighted objection fees as a deal-breaker – governments don’t want to have to pay to object to TLD applications.

This appears to been cast as some kind of sovereignty-based matter of principle, although I suppose it could just as easily be an “in this economic climate” budgeting concern.

ICANN’s position is that the GAC as a whole can object for free, but that individual governments have to pay. Fees for some objection procedures will run into tens of thousands of dollars.

The GAC also has beef with the AGB’s treatment of geographic strings.

This is an area where ICANN says the AGB already “substantially reflects the views of the ICANN community” but intends to take GAC comments into account.

ICANN has already made substantial concessions on the geographic names issue, but there may still be a few loopholes through which territory names could slip through the net and be approved without the endorsement of their local governments.

Finally, the GAC wants to include amendments to the Registrar Accreditation Agreement, previously recommended by law enforcement agencies, in the AGB discussion.

The appears to have come completely out of the blue, without any direct relevance to the new TLD program.

It’s a long list covering a lot of issues, and it could get longer when the GAC publishes its official “scorecard”. We’ll have to wait and see.

Porn group threatens lawsuits over new TLDs

Kevin Murphy, December 2, 2010, Domain Registries

Porn trade group the Free Speech Coalition has added its name to the list of organizations saying that ICANN could be sued over its new top-level domains program.

In her latest letter to ICANN, FSC executive director Diane Duke has made a last-ditch attempt to get the proposed .xxx TLD rejected, and not-so-subtly raises the threat of court action:

ICM Registry promises millions of dollars of income for ICANN, assuming that income is not consumed by the inevitable litigation which ICANN will find itself a party to if the proposal is adopted

But she also writes about lawsuits targeting the new TLD program itself.

ICM’s .xxx application is being handled under the rules established for “sponsored” TLDs in 2003, rather than the rules for gTLDs in the Applicant Guidebook that will be enforced in future.

As such, .xxx is not subject to challenges such as the “morality and public order objections” envisioned by the AGB, unlike potential future applications such as .porn. Duke wrote:

What about those in the adult community who wish to apply for a gTLD? With ICANN’s policy development in regards to “Morality and Public Order” will gTLDs be held to a higher standard than the sTLD? Does ICANN believe that it is not liable for this inequity? Any company prepared to invest the substantial moneys necessary to manage a gTLD will surely take ICANN to court to demand equitable standards for their TLD application.

She goes on to suggest that ICM itself may sue to block such applicants.

Does ICANN really believe that the litigious ICM will sit idly by while a .SEX or .PORN gTLD is introduced? Is ICANN so naive to believe that the purveyor of the “sponsored” TLD, who spent in excess of $10 million to bully its way through ICANN’s processes, will stop its threats of litigation with a mere approval of the sTLD?

Is the FSC privy to the TLD aspirations of others in the adult business? Or is this just a lot of hot air born out of desperation? I guess time will tell.

The FSC becomes the third organization to publicly threaten litigation in order to get what it wants out of ICANN.

As I’ve previously reported, the International Olympic Committee and the BITS financial trade group have already made similar noises.

ICANN expects to set aside $60,000 from every $185,000 TLD application fee to deal with “risks” including the expense of defending itself from lawsuits.

The ICANN board is expected to vote on the .xxx application and the new TLD program next Friday. I expect the number of organizations threatening lawsuits will be in double figures by then.

Governments still want new TLD morality veto

Kevin Murphy, November 23, 2010, Domain Registries

ICANN’s Governmental Advisory Committee still wants to block “controversial” new top-level domains on morality grounds.

In a letter to ICANN chairman Peter Dengate Thrush, a copy of which I have obtained, the GAC makes it clearer than ever that it wants national laws to play a part in approving new TLDs.

It also suggests that national governments should be able to pre-screen strings before applications are filed, to give applicants “early warning” that they are stepping into controversial waters.

The letter draws the battle lines for what could be some heated debate at ICANN’s meeting in Cartagena next month.

Given that the letter does not appear to have been published by ICANN yet, I will quote liberally.

Under the heading “Universal Resolvability of the DNS”, GAC interim chair Heather Dryden, the Canadian representative on the committee, wrote:

Due to uncertainties regarding the effectiveness of ICANN’s review and objections procedures, a country may feel compelled to block a new gTLD at the national level that it considers either objectionable or that raises national sensitivities.

To date, there do not appear to be controversial top level domains that have resulted in significant or sustained blocking by countries.

The GAC believes it is imperative that the impact on the continued security, stability and universal resolvability of the domain name systems of the potential blocking at the national level of the new gTLD strings that are considered to be objectionable or that raise national sensitivities be assessed prior to introducing new gTLDs.

The letter carries on to say that the GAC will “seek advice from the technical community” on the issue.

Dryden wrote that there should be a “prior review” process that would be able to identify strings that are “contrary to national law, policy or regulation” or “refer to religions, ethnicity, languages or other cultural identifiers that might raise national sensitivities”.

It sounds like the GAC envisions a pre-screening process, before new TLD applications are officially filed, similar to the “expressions of interest” concept that ICANN abandoned in March.

What TLDs this process would capture is unclear. The GAC letter notes by way of example that “several governments restrict the registration of certain terms in their ccTLDs”.

In practical terms, this would raise question marks over TLDs such as “.gay”, which would quite clearly run contrary to the policies of many national governments.

(As I reported earlier this month, the recently relaunched .so registry currently bans “gay”, “lesbian” and related terms at the second level.)

There’s more to be reported on the the implications of this letter, particularly with regards the work of ICANN’s “morality and public order” policy working group and the GAC’s relationship with ICANN in general.

Watch this space.

How “final” is the new TLD guidebook?

Kevin Murphy, November 19, 2010, Domain Registries

Many would-be new top-level domain registries were pleasantly surprised a week ago when ICANN published the latest Applicant Guidebook and referred to it as the “proposed final” version.

But it was pretty clear, even on a cursory reading, that the AGB is far from complete; in some cases, text is explicitly referred to as being subject to further revision.

There’s also a public comment period ongoing, providing feedback some of which will presumably be taken on board by ICANN at its Cartagena meeting next month.

But ICANN has now provided a little bit more clarity on how “final” the “proposed final” AGB really is.

Senior veep Kurt Pritz, ICANN’s point man on the new TLD program, had this to say on Thursday’s teleconference of the GNSO Council:

There are always going to be changes to the guidebook. And so, even though this is the proposed final guidebook, we’re doing some final work on trying to find areas of accommodation with the Recommendation 6 working group and making some changes there, and working through perhaps a registry code of conduct; there are perhaps some issues with data protection there.

If folks want to consider this as final it will have to be with the understanding that the guidebook will always be changing, but having an understanding that those changes really don’t materially change the positions of applicants or the decisions of whether or not to go ahead and apply or the resources necessary to apply or sustain registry operations.

I reported on some of the issues with the Rec 6 working group, which is dealing with the “morality an public order objections” process, earlier this week.

The registry code of conduct, which sets limits on what data can be shared in co-owned registries/registrars, was new in the latest AGB draft. It looks to me like the kind of thing you’d normally expect to be debated for many months before being accepted.

But apparently future changes to these parts of the guidebook will not be substantive enough to change potential applicants’ plans.

Pritz said on the GNSO call that the current public comment period, which ends on the day of the Cartagena board meeting, could be thought of as similar to the comment periods that precede votes on ICANN’s budget.

In those cases, the board votes to approve the budget subject to changes based on public comments in advance of those changes being made.

It seems to me that the board’s options in Cartagena are to a) approve the AGB, b) approve it subject to directed changes (the “budget” scenario), or c) delay approval pending further community work.

I’m guessing option b) is the preferred outcome, but there’s no predicting what surprises could emerge over the next few weeks.

Is ICANN too scared of lawsuits?

Kevin Murphy, November 17, 2010, Domain Registries

Arguments about the new top-level domain Applicant Guidebook kicked off with a jolt this week, when ICANN was accused of abdicating its responsibilities and being too risk-averse.

In what I think was the first case of a top ICANN staff member publicly discussing the AGB, senior veep Kurt Pritz fielded questions about “morality and public order objections” on a packed and occasionally passionate conference call (mp3).

On the call, Robin Gross of IPJustice accused ICANN’s of shirking its duties by proposing to “fob off” decisions on whether to reject controversial TLDs onto third-party experts.

She said:

I’m concerned that there’s a new policy goal – a new primary policy goal – which is the risk mitigation strategy for ICANN. I don’t remember us ever deciding that that was going to be a policy goal. But it seems that now what is in the best interest for the Internet is irrelevant. The policy goal that rules is what is in the best interest for ICANN the corporation

A cross-constituency working group (CWG) had said that controversial TLDs should be rejected only after a final nod from the ICANN board, rather than leaving the decision entirely in the hands of outside dispute resolution providers.

There was a concern that third parties would be less accountable than the ICANN board, and possibly more open to abuse or capture.

But ICANN rejected that recommendation, and others, on “risk mitigation” grounds. Explanatory notes accompanying the new AGB (pdf) say:

Independent dispute resolution is a cornerstone of the risk mitigation strategy. Without outside dispute resolution, ICANN would have to re-evaluate risks and program costs overall.

Almost a third of every new TLD application fee – $60,000 of every $185,000 – will go into a pool set aside for ICANN’s “risk costs”.

These costs were based on an estimate that there will be 500 applications, and that ICANN will need $30 million to cover risks.

These are often thought to be primarily risks relating to litigation.

There’s a fear, I suspect, that ICANN could become embroiled in more interminable .xxx-style disputes if it allows the board to make subjective calls on TLD applications, rather than hiring independent experts to make decisions based on uniform criteria.

On Monday’s conference call, Gross said that ICANN’s treatment of the CWG’s recommendations was a “really big shock”. She added:

clearly here this is just a fobbing off of that responsibility, trying to again avoid litigation, avoid responsibility rather than take responsibility and take accountability

But ICANN says that the risk mitigation strategy benefits TLD applicants by removing uncertainty from the program, as well making ICANN more credible.

Pritz said on the call:

the risk to the program is in creating a process or procedure that isn’t transparent and predictable for applicants. By what standard can a TLD be kicked out? It’s got to be: here’s the standards, here’s the decision maker and here’s the process.

When I talk about risk, it’s risk to this process.

If this process attracts a lot of litigation, and ICANN published the process and then did not follow it, or that the process wasn’t clear so that the applicant had no way of predicting what was going to happen to its application, the risk is then litigation would halt the process and undermine the ICANN model.

So it doesn’t really have anything to do with the people that are the directors or the people that are the staff; it has to do with the credibility of ICANN as a model for Internet governance.

In other words, if TLD applicants pay their fees and go into the process knowing what the rules are, and knowing that there’s little chance of being jerked around by the ICANN board, there’s less chance of the program as whole being disrupted by lawsuits.

Seems fair enough, no?

Will the new TLD guidebook provide answers?

Kevin Murphy, November 8, 2010, Domain Registries

ICANN is due to publish an Applicant Guidebook for new top-level domain registries tomorrow, and there are still big question marks over its contents.

Judging from a preliminary report from the ICANN board’s most-recent official meeting, some key decisions may not have yet been taken.

Perhaps the biggest unresolved issue is whether to permit the “vertical integration” of registry and registrar functions.

Which way ICANN swings on this problem will determine which companies are eligible to apply for new TLDs, how their business models will be structured, and how realistic “.brand” TLDs will be.

The ICANN community failed to reach consensus on this issue, largely due to differing business interests and a few consumer protection concerns.

But it looks like the ICANN board did not even discuss the matter at its October 28 meeting. The preliminary report has this to say:

2. Vertical Integration

In the interests of time, the Chair adjourned this item of discussion to a later date.

That “later date” may have been last Thursday and Friday, when the board held its rescheduled “retreat”, which is not designated as an official meeting.

On “Rec6”, previously known as the “morality and public order” objections process, the board passed no resolution October 28, but seems to have endorsed further discussions with the community.

The preliminary report states:

The Board discussed staff presentation and, in conformance with staff recommendation, directed staff to provide a briefing paper to the working group and to coordinate a call with the working group to further discuss the issues.

If the Rec6 working group mailing list and the GNSO calendar are any guides, that meeting has not yet been called (at least not publically).

The report also addresses geographic domains and issues that need to be taken into account given what ICANN’s Affirmation of Commitments with the US government says about new TLDs.

The Board agreed that staff provide a paper on geographic names to the GAC, the Chair of the GAC would check on the scope of issues still requiring discussion, and then the Chairs of the GAC and the Board would discuss the process for resolution to move this issue forward prior to Cartagena.

The Board discussed a paper regarding the adherence to the conditions set out in the Affirmation of Commitments in launching New gTLDs, and the need for identifying objective metrics to measure ICANN’s performance. The Board asked staff to consider what known performance indicators for the New gTLD program may be, what the adequacy scale is for measuring, and try to set that out for future conversation.

With all this in mind, it seems to me that while we may have a timeline for the launch of the new TLD program, there’s still much more to do than merely cross t’s and dot i’s.

Can we expect more placeholder text in tomorrow’s Applicant Guidebook?

.XXX debate could test GAC powers

Kevin Murphy, November 1, 2010, Domain Policy

The long-running .xxx top-level domain saga has tested ICANN processes to their limits over the last decade, and it looks like it may do so at least one more time.

Digging a little deeper into the board’s decision to consult with its Governmental Advisory Committee before approving the TLD, it looks like the discussion will be quite broad-based.

The .xxx consultation could in fact have consequences for the board/GAC power balance, helping define the parameters of their future interactions.

This PDF, published at the same time as last week’s board resolution on .xxx, outlines three GAC positions that could have a bearing on the matter.

The first is its communiqué from the Wellington meeting in 2007, which noted that several GAC members were “emphatically opposed” to the introduction of .xxx.

The GAC operates on a consensus basis. When it can’t find consensus, its communiqués also reflect minority positions. So ICANN now wants to know whether the Wellington letter constitutes GAC “advice”.

The question remains whether a position taken by “several members of the GAC” can be equated with GAC advice on public policy matters. If it is not GAC advice, then the concern of inconsistency [of the .xxx contract with GAC advice] diminishes.

Some may be surprised to discover that, after over a decade, there’s no broad agreement about when something the GAC says constitutes official “advice” that ICANN, under its bylaws, must consider.

Attendees to the Brussels meeting this June will recall that the joint board-GAC meeting, transcribed here, spent most of its time labouring on this apparent oversight.

In consulting with the GAC on .xxx, there’s an outside chance that some answers with regards the definition of “advice” may be found.

It wouldn’t be the first time ICM Registry’s controversial application has forced ICANN to address shortcomings in its own accountability procedures.

Notably, the Independent Review Process, promised in the bylaws for years, was eventually implemented to allow ICM’s appeal after it had pushed the Reconsideration Request process to its limit.

ICANN’s latest resolution on .xxx also refers to a letter (pdf) GAC chair Heather Dryden sent to the board in August, which expressed a desire that no “controversial” TLDs should be added to the root.

While ostensibly addressing future TLD applications, rather than TLDs applied for under previous rounds, the letter did say that “objection procedures should apply to all pending and future TLDs”, which was widely interpreted as referring directly to .xxx.

Last week’s ICANN board documents say:

If the “pending” TLD refers to .XXX, the approval of the .XXX sTLD Registry Agreement without allowing for these types of objections would be inconsistent with GAC advice.

I’ve reason to believe that the “pending” language may have been inserted quite late into the drafting of the Dryden letter, and may not enjoy the unanimous support of GAC members.

Regardless, the letter implies that whatever “morality and public order” or “Rec6” objections process winds up in the new TLD Applicant Guidebook should also apply, retroactively, to ICM.

If ICANN were to agree on this point, a precedent would presumably be set that would allow the GAC to issue thirteenth-hour “advice” that moves the goal-posts for future new TLD applicants, removing a significant amount of predictability from the process.

For that reason, I think it’s unlikely that ICM will be told it is subject to the Rec6 process (whatever that may ultimately look like).

The consultation, however, may result in some clarity around where the GAC’s powers of “advice” begin and end, which is probably a good thing.

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