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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.

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?

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