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ICANN holds its ground on weaseled GAC advice

Kevin Murphy, September 11, 2014, Domain Policy

While many members of the community are getting upset about the plan to make it harder for ICANN’s board to overrule GAC advice, today we got a reminder that the board is not the GAC’s lapdog.

The New gTLD Program Committee is standing firm on the way it creatively reinterpreted Governmental Advisory Committee advice to make it less punishing on a few dozen new gTLD registries.

The NGPC passed a resolution on Monday approving an updated scorecard to send to the GAC. ICANN chair Steve Crocker delivered it to GAC chair Heather Dryden yesterday.

A “GAC scorecard” is a table of the GAC’s demands, taken from the formal advice it issues at the end of each public meeting, with the NGPC’s formal responses listed alongside.

The latest scorecard (pdf) addresses issues raised in the last five ICANN meetings, dating back to the Beijing meeting in April 2013.

The issues mainly relate to the GAC’s desire that certain new gTLDs, such as those related to regulated industries, be locked down much tighter than many of the actual applicants want.

One big point of contention has been the GAC’s demand that registrants in gTLDs such as .attorney, .bank and .doctor should be forced to provide a relevant licence or other credentials at point of sale.

The GAC’s exact words, from its Beijing communique (pdf), were:

At the time of registration, the registry operator must verify and validate the registrants’ authorisations, charters, licenses and/or other related credentials for participation in that sector.

However, when the NGPC came up with its first response, in November last year, it had substantially diluted the advice. The creative reinterpretation I mentioned earlier read:

Registry operators will include a provision in their Registry-Registrar Agreements that requires Registrars to include in their Registration Agreements a provision requiring a representation that the Registrant possesses any necessary authorisations, charters, licenses and/or other related credentials for participation in the sector associated with the Registry TLD string.

In other words, rather than presenting your medical licence to a registrar when buying a .doctor domain, registrants would merely assert they have such a licence on the understanding that they could lose their domain if they fail to present it on demand in future.

The GAC, which isn’t entirely stupid, spotted ICANN’s reimagining of the Beijing communique.

At the Singapore meeting this March, it issued a list of passive-aggressive questions (pdf) for the NGPC, noting that its Beijing advice had been “amended” by the board and wondering whether this would lead to “greater risks of fraud and deception” in new gTLDs.

ICANN’s response this week is quite lengthy.

The NGPC said it had “to balance many competing positions” when figuring out how to respond to the Beijing communique, and that it tried “to address all of the completing concerns in a way that respected the spirit and intent of the GAC’s advice.”

The committee gives a number of examples (starting on page 15 of this PDF) explaining why the GAC’s original demands would be unreasonably burdensome not only on registries and registrars but also on registrants.

Here’s one example:

consider a potential registrant that is a multinational insurance company seeking to register a domain name in the .insurance TLD. Suppose the multinational insurance company has locations in over 30 countries, including the United States and Kenya. If the potential registrant insurance company attempts to register a domain name in the .insurance TLD, would that trigger an obligation to verify and validate its credentials, licenses, charters, etc. in the location of its headquarters, or all of the places around the globe where it does business. Is it realistic for a Registry Operator or Registrar to have the knowledge and expertise to determine precisely what credentials or authorizations are required in every country around the world (and in every city, county or other political division if those political subdivisions also require credentials [e.g. in the United States, insurance is primarily regulated at the state level and require a license in each of the 50 states])?

The short version is that the NGPC isn’t budging on this particular issue.

Rather than backpedaling, it’s giving the GAC the reasons it disagreed with its advice and explaining how it attempted to at least comply with the spirit, if not the letter, of Beijing.

As far as I can tell, that seems to be the case in each of the 39 items in the new scorecard — explanation not capitulation. Read the full thing here.

ICANN puts porn gTLDs on hold for no good reason?

Kevin Murphy, July 4, 2014, Domain Policy

In a decision that seems to have come out of nowhere, ICANN has effectively put bids for three porn-themed new gTLDs on hold.

In a June 21 meeting, the board’s New gTLD Program Committee discussed .adult, .sex and .porn, calling them “sensitive strings”.

While it passed no resolution, I understand that ICANN legal staff is delaying the signing of contracts for at least one of these gTLDs while the NGPC carries out its talks.

It’s a surprising development, given that the three strings are not subject to any Governmental Advisory Committee advice, are not “Community” applications, and have not been formally objected to by anyone.

The report from the NGPC meeting acknowledges the lack of a GAC basis for giving the strings special treatment (emphasis added):

The Committee engaged in a discussion concerning applications for several adult-oriented strings in the current round of the New gTLD Program, including .ADULT, .PORN, and .SEX. The applications propose to serve the same sector as the .XXX sponsored TLD. Staff noted that the applications were not the subject of GAC advice, or any special safeguards, other the safeguards that are applicable to all new gTLDs. The Committee considered how the safeguards in the new gTLD Program compare to the safeguards that were included in the .XXX Registry Agreement. The Committee requested staff prepare additional briefing materials, and agreed to discuss the matter further at a subsequent meeting.

This begs the question: why is ICANN giving .porn et al special treatment?

What’s the basis for suggesting that these three strings should be subject to the same safeguards that were applied to .xxx, which was approved under the 2003 sponsored gTLD round?

.porn, .sex and .adult were were applied for under the 2012 new gTLD program, which has an expectation of predictability and uniformity of treatment as one of its founding principles.

Who decided that .sex is “sensitive” while .sexy is not? On what basis?

Is it because, as the NGPC report suggests, that the three proposed gTLDs “serve the same sector” as .xxx?

That wouldn’t make any sense either.

Doesn’t .vacations, a contracted 2012-round gTLD, serve the same sector as .travel, a 2003-round sponsored gTLD? Why wasn’t .vacations subject to additional oversight?

Is it rather the case that the NGPC is concerned that ICM Registry, operator of .xxx, has applied for these three porn strings and proposes to grandfather existing .xxx registrants?

That also wouldn’t make any sense.

.sex has also been applied for by Internet Marketing Solutions, a company with no connection to .xxx or to the 2003 sponsored gTLD round. Why should this company’s application be subject to additional oversight?

And why didn’t .career, which “serves the same sector” as the sponsored-round gTLD .jobs and was applied for by the same guys who run .jobs, get this additional scrutiny before it signed its contract?

It all looks worryingly arbitrary to me.

Delays still dog many new gTLD applicants

Kevin Murphy, March 3, 2014, Domain Policy

With dozens of new gTLDs currently live and on sale, it’s easy to forget that many applicants are still in ICANN limbo due to several still-unresolved issues with the evaluation process.

The New gTLD Applicant Group wrote to ICANN on Friday to express many of these concerns.

First, NTAG is upset that resolution of the name collisions issue is not moving as fast as hoped.

JAS Advisors published its report into collisions, which recommends “controlled interruption” as a solution, last Thursday. But it’s currently open for public comment until April 21.

That would push approval of the plan by ICANN’s board beyond the Singapore meeting taking place at the end of March, at least a month later than originally expected.

NTAG secretary Andrew Merriam argues that the 42-day comment period should be reduced to 21 days, with ICANN and JAS conducting webinars this week to discuss the proposal with applicants.

Second, NTAG is upset that ICANN has pushed out the start date for the first contention set auctions from March to June. It’s asking ICANN to promise that there will be no further delays.

Third, NTAG says that many dot-brands are unable to enter into contracting talks with ICANN until Specification 13 of the Registry Agreement, which contains opt-outs for single-registrant zones, is finalized.

That’s not currently expected to happen until Singapore, apparently because there were no scheduled meetings of the ICANN board’s New gTLD Program Committee until then.

NTAG also complains about the length of time it’s taking to decide the first Community Priority Evaluations, which is apparently due to quality assurance measures (very wise given the controversy caused by the lack of oversight on new gTLD objections, if you ask me).

The NGPC has a newly scheduled meeting this Wednesday, with new gTLDs on the agenda, but it’s not yet clear whether any of NTAG’s issues are going to be addressed.

Hundreds of new gTLD applicants still in GAC limbo

Kevin Murphy, September 16, 2013, Domain Policy

A little over five months after the Governmental Advisory Committee issued its controversial Beijing communique, demanding strict controls over hundreds of new gTLDs, ICANN has still not taken any action.

ICANN’s New gTLD Program Committee “accepted” a bunch of the GAC’s advice on new gTLDs during its meeting last week, but yet again punted the most crucial issue — how to handle the so-called “Category 1” strings.

In a resolution last Tuesday, published on Friday, the NGPC addressed 21 pieces of GAC advice from the July Durban meeting but took no action on the April Beijing advice.

One application was killed off as a result — Better Living Management’s bid for .thai — on geographic grounds.

Applications for .spa, .yun, .广州 (.guangzhou), and .深圳 (.shenzhen), which are all geographic strings, have been put on hold “until the agreements between the relevant parties are reached”.

Amazon’s applications for its brand in Latin and other scripts are also on hold again pending ICANN’s review of its lengthy response to the GAC’s decision to object to them in Durban.

Two applications — .date and .persiangulf — which had raised geographic concerns in Beijing have been given leave to proceed after the GAC decided not to object in Durban.

Applications for .wine, .vin, .ram and .indians appear to be safe, but it’s not 100% clear based on the NGPC’s resolution.

Category 1 strings

“Category 1” strings were those strings that the GAC deemed applicable to “Consumer Protection, Sensitive Strings, and Regulated Markets”.

The GAC wants these gTLDs, if approved, to be subject to oversight by regulatory or self-regulatory bodies and to implement strict security controls.

The Category 1 advice has been criticized by many, including members of the NGPC, for being too vague to implement and for unfairly moving the goalposts on applicants at the last minute.

In Durban, the NGPC had indicated that it was very unhappy with the Category 1 advice.

Last week, it chose to essentially ignore the Beijing communique in which the Category 1 advice was delivered, and instead “accept” the Category 1 advice from Durban, which simply stated:

The GAC will continue the dialogue with the NGPC on this issue.

The NGPC in response stated in an annex to its resolution:

The NGPC accepts this advice. The NGPC looks forward to continuing the dialogue with the GAC on this issue.

So the 500-odd applications captured by Category 1 are still in limbo, unable to sign registry contracts with ICANN, pending the outcome of these GAC-NGPC negotiations.

On the upside, it looks like ICANN is keen to get the issue resolved before ICANN’s next public meeting, which takes place in Buenos Aires in November. ICANN said:

The NGPC and staff are working with the GAC to identify a time and place for further dialogue on these items.

Community support

The NGPC also addressed the GAC’s demands relating to community support for applications. In doing so, it again deployed its tactic of “accepting” the letter of the GAC’s advice whilst plainly rejecting it in spirit.

The GAC had said in Durban:

the GAC advises the ICANN Board to consider to take better account of community views, and improve outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date.

The GAC was basically worried about the new gTLD program not giving sufficient weight to informal objections from organizations that could be affected by applied-for strings.

The NGPC responded:

The NGPC accepts this advice. The NGPC will consider taking better account of community views and improving outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date. The NGPC notes that in general it may not be possible to improve any outcomes for communities beyond what may result from the utilization of the AGB’s community processes while at the same time remaining within the existing framework.

In other words, due to the inclusion of the phrase “within the existing framework”, ICANN can do absolutely nothing else to address the GAC’s concerns and can still say it “accepted” the advice.

The NGPC had previously used the same tactic to avoid dealing with the GAC’s Beijing advice on giving “communities” the ability to kill off applications without going through the proper channels.