ICANN tones down power grab in new gTLD contract

ICANN has published a new version of its Registry Agreement for new gTLD operators that waters down the controversial unilateral right to amend provisions.
The revised RA, available for review here, makes it harder for ICANN to force new rules on registries without their consent, at least when compared to the version published in February.
The Special Amendment process is designed to allow ICANN to change the contract when it’s in the public interest.
DI outlined the changes to the process last week.
While most of the changes we described have in fact made it to the published RA, we were wrong on one count: despite what we reported, ICANN directors with conflicts of interest will not be able to vote.
That means representatives of registries and registrars won’t get a say when the board discusses their contracts.
A couple of other significant changes are apparent:

• Concessions to dot-brand registries. It would now be harder for ICANN to redelegate a dot-brand to another operator if the registry abandons its gTLD. ICANN has never had any intention of doing so, of course, but the relative lack of safeguards have been making dot-brand applicants nervous for years. Now, existing intellectual property rights would be taken into consideration during redelegation decisions.
• More secrecy. There’s a new section on “confidential information”, along with references to it sprinkled throughout, designed to protect trade secrets registries may disclose to ICANN.

ICANN CEO Fadi Chehade is expected to play hard-ball on these changes, according to recent reports.
Because registries get a perpetual right of renewal, and because it’s uncertain how the power balance will hang in policy-making, ICANN believes it would be irresponsible to sign an RA that does not give it the right to step in an protect the public interest in future.

ICANN to water down contract powers with “Public Interest Amendments”

ICANN has made a few tweaks to its proposed unilateral-right-to-amend powers in order to fend off open hostility from registries, registrars and new gTLD applicants.
The organization is set to announce “Public Interest Amendments”, a rebadged version of its hugely unpopular proposals for the Registry Agreement and Registrar Accreditation Agreement.
As previously reported, ICANN wants to be able to change both contracts in future, if there’s a “substantial and compelling need”, even if it does not have the majority support of the affected companies.
CEO Fadi Chehade has reportedly indicated that he won’t be budged on the need for some method for ICANN to make emergency changes to the contracts.
And during last night’s new gTLD applicants webinar, he made it clear that the RA and RAA will delay the launch of new gTLDs if registries and registrars cannot agree to ICANN’s terms.
But according to documentation seen by DI today — actually a flowchart of how the amendment process would work — these terms are going to be watered down, giving more power to commercial stakeholders.
Apart from the new Pubic Interest Amendment name, there appear to be three big changes.
First, there would be a way for registrars and/or registries to make a late-stage counter-proposal to the ICANN board if they didn’t like the look of a proposed amendment.
Second, any issues that fell within the so-called “picket fence” — the list of pre-agreed topics for which ICANN is allowed to make binding policy — would have to go into a formal GNSO Policy Development Process first.
Only if the PDP failed to reach consensus would the ICANN board of directors be able to step in and attempt to legislate unilaterally.
A practical effect of that would be to give contracted parties ample opportunity to delay amendments — possibly by years — that they weren’t happy with.
Third, PIAs would only cover changes designed to “ensure competition & consumer choice and promote consumer access to fair business practices” and explicitly “not to change ICANN fees, Consensus Policy Spec., or mechanism to change PIA process”.
This would prevent ICANN unilaterally amending the contract to make its amendment powers even stronger in future, which had been one criticism of the proposed process.
“The board’s ability to introduce an amendment is very tightly defined and limited in scope, so it’s only used in extreme cases and under very strict conditions,” Chehade said last night.
It appears — though I can’t be certain — that ICANN has also decided that the full board of directors, including those with identified conflicts of interest, would be able to participate in votes on PIAs.
That would mean registry and registrar representatives to the board would get to vote on amendments affecting their stakeholder groups.
Chehade is currently explaining all of this to a cautiously optimistic Registry Stakeholder Group on a conference call, and I believe more information is due to be published later this week.

Chehade to play hard-ball over unilateral right to amend?

ICANN CEO Fadi Chehade has reportedly indicated that the unilateral right to amend powers ICANN wants to put in its registry and registrar contracts are non-negotiable.
Speaking at a meeting of the Association of National Advertisers last week, Chehade is reported to have said: “I’m not going to back off this one.”
He is understood to have been referring to the changes ICANN wants to impose on the base new gTLD Registry Agreement and the Registrar Accreditation Agreement.
Amy Bivins of Bloomberg BNA’s Electronic Commerce & Law Report caught the speech live and tweeted the following:

Chehade quotes on RAA: “I cannot live with a perpetual agreement,” and “I’m not going to back off this one.”

— Amy E. Bivins (@AmyEBivins) March 20, 2013

Bivins’ full report is available behind BNA’s paywall.
The unilateral right to amend is just about the most controversial thing ICANN has proposed in a while.
It would give ICANN’s board of directors the power to make changes to both agreements in situations where registrars or registries cannot agree among themselves to a “special amendment” but there’s agreement by other community members that the change is required.
Registries and registrars argue that a contract in which one party has the power to change the agreement without the consent of the other is not really a contract at all.
But ICANN says the powers are needed, partly to redress existing imbalances: the fact that the RAA and RA both last for 10 years and that the RA has a presumptive right of renewal.
Without the right to change the RA over the protests of the registries, it’s possible that in future proposed changes could be vetoed by registries whose interests are not aligned with the “public interest”, ICANN argues.
ICANN says that it’s impossible to know how consolidation, future new gTLD rounds and power shifts in the ICANN community will affect the balance of power, meaning it needs a way to resist a registry choke-hold should the situation arise.
I suspect the fact that it’s taken about three years to get close to adding the recommendations of law enforcement relating to registrar conduct to the RAA may also have something to do with it.

Tempted by the Caesar solution [Guest Post]

The ICANN leadership is in a hurry, so to get things done, it is cutting corners.
One such attempt at going straight around a bend, the proposed changes to the new gTLD registry contract giving the ICANN Board unilateral right of amendment, has raised the registries’ ire.
ICANN’s other group of contracted parties (i.e. entities that must contract directly with ICANN to operate), the registrars, are also up in arms following ICANN’s inclusion of the same proposal at the eleventh hour of ongoing negotiations on their contract.
ICANN’s new leadership team, headed by newly appointed CEO Fadi Chehadé, has been rightly praised since he took office in the second half of 2012. This team has a business background, and it is attempting to apply business logic and business solutions to a number of obvious problems with ICANN.
The main one is predictability. ICANN is just not good at setting timelines, or keeping to those timelines it does manage to set.
In the past, that used to be annoying to stakeholders. But since the Board approved the new gTLD program in 2008, this trait has become excruciating.
This program has spawned a new industry, bought new interests into the ICANN environment, generated large-scale investments on the premise of future TLDs, and shone the spotlight on ICANN’s weaknesses to such business ventures.
Having a constantly slipping timeline as the new gTLD program did through much of its implementation phase, from that 2008 Board green light to the June 2011 Board resolution finally turning it into an operational reality, is a nightmare for any business.
So trying to fix this is a worthy goal. But the ICANN model is not only about business. It is first and foremost about community-driven policy-development and oversight. The new gTLD program is the result of such a process. One that the new ICANN leadership is finding cumbersome enough to want to cut through.
There have been a few mistakes made in this area in the last few months, but they seemed like honest missteps from a motivated team of result-getters. A team that apologized for those mistakes when they became apparent. A welcome change at ICANN.
But now, almost six months into the new leadership’s reign the veil is starting to lift and the leadership’s real visage to appear.
Last week, ICANN’s policymaking body for gTLDs, the GNSO, was unanimous in its denunciation of the leadership’s attempts at making the ICANN train go faster than it was engineered to.
During the GNSO Council’s monthly teleconference, the various groups that make up the GNSO’s diverse community all seemed to speak with one voice.
In a blog post written after the call and entitled “Clearing Up the Logjam: Time for ICANN to Drop Request for a Unilateral Right to Amend the Agreements”, GNSO Councillor Jeff Neuman, a representative of the Registry Stakeholder Group and a past Vice Chair of the Council, said the following:

A very rare thing happened in the GNSO Council meeting this week—the ICANN community spoke with one voice. Registries, registrars, non-commercial interests, new TLD applicants, IP owners and businesses unanimously and unambiguously agreed that giving ICANN a “unilateral right to amend” the registry and registrar agreements is not compatible with ICANN’s bottom-up processes and poses a fundamental threat to the multi-stakeholder model. There is true consensus that this change should be rejected.

ICANN COO Akram Attalah participated in the GNSO Council meeting and explained that this was not a done deal and that the leadership was in listening mode.
Except it all seems to be going in one ear and out the other.
A couple of days later, on March 15, ICANN Staff gave the Council an unofficial response by publishing a paper in which it explains its rationale for the unilateral change suggestion. It says:

The Board-approved amendment process is drafted to address a key concern of ICANN in this changing marketplace. What if the gTLD registration market develops in a way that is anticonsumer, yet very favorable to the existing registries or registrars. In this situation, it would be against the business interests of the incumbent registries or registrars to adopt a change – even when the broader community supports the change. Particularly in light of the “perpetual” renewal terms that are already in place within the proposed agreements, this limited power of the Board is the only way to introduce this type of change over the life of the agreements.

The real message is clear. The current leadership does not trust the ICANN multi-stakeholder bottom-up policy development process. Period.
So in cases of extreme necessity, the Board must have absolute power to enact the changes it sees fit. Experienced ICANN community member and former GNSO Council Chair Avri Doria calls this leadership’s tenure ICANN 3.0, and charts ICANN’s progress thus: “ICANN 1.0 – Democracy, ICANN 2.0 – Oligarchy, ICANN 3.0 – Imperium.”
Is a term which describes the absolute power given to the rulers of ancient Rome suited to ICANN? Of course not. But if a little caricature can help turn the ICANN leadership away from this temptation to get things done at all costs, then maybe it is needed.
This is a guest post by domain name industry consultant Stephane Van Gelder of Stephane Van Gelder Consulting. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.

Registrars and ICANN hit impasse on new RAA

ICANN and its accredited domain name registrars have hit a brick wall in their long-running contract negotiations, after ICANN demanded the right to unilaterally amend the deal in future.
Documents published by ICANN this morning reveal that the two sides have reached agreement on almost all of their previous sticking points — including the extremely thorny issue of Whois verification — but have run into some fundamental, eleventh-hour disagreements.
As we’ve been reporting for the last couple of weeks, the big unresolved issue is ICANN’s unilateral right to amend the Registrar Accreditation Agreement in future, which registrars absolutely hate.
Death of the GNSO? Again?
The text of that proposed change has today been revealed to be identical to the text ICANN wants to insert into the Registry Agreement that all new gTLD registries must sign.
It gives ICANN’s board of directors the right, by two-thirds majority, to make essentially any changes they want to the RA and RAA in future, with minimal justification.
Registrars are just as livid about this as new gTLD applicants are.
The proposed change appears to be one of those introduced last month that ICANN said “[stems] from the call by ICANN’s CEO, Fadi Chehadé, to work to improve the image of the domain industry and to protect registrants”.
Chehadé has been on the road for the last couple of months trying to raise ICANN’s profile in various stakeholder groups in the private and public sectors around the world.
One of the memes he’s impressed upon contracted parties and others is that people don’t trust the domain name industry. Part of ICANN’s solution, it seems, is to grant its board more powers over registries and registrars.
But the Registrars Stakeholder Group reckons unilateral amendments would torpedo the multistakeholder process by emasculating the Generic Names Supporting Organization. It said:

The effect of such a clause in the primary agreements between ICANN and its commercial stakeholders would be devastating to the bottom-up, multi-stakeholder model.
First, it will effectively mean the end of the GNSO’s PDP [Policy Development Process], as the Board will become the central arena for all controversial issues, not the community.
Second, it creates an imbalance of authority in the ICANN model, with no limits on the scope or frequency of unilateral amendments, and no protections for registrars and more important registrants.

That’s the biggest barrier to an agreement right now, and it’s one shared by the entire contracted parties constituency of ICANN. Expect fireworks in Beijing next month.
Friction over new gTLDs
Registrars and registries are also angry about the fact that ICANN wants to force registrars to adopt the 2013 RAA, even if their 2009 or 2001 deals are still active, if they want to sell new gTLDs.
RrSG secretary Michele Neylon of Blacknight told DI today that it looks like ICANN is trying to “drive a wedge” between registrars and registries.
Here’s why:
ICANN is trying desperately to stick to its new gTLD program timetable, which will see it start signing Registry Agreements with new gTLD applicants in late April.
But it wants the base RA to include a clause obliging registries to only sell via registrars on the 2013 RAA.
Because the 2013 RAA is not yet finalized, registrars could potentially hold up the approval and delegation of new gTLDs if they don’t quickly agree to the changes ICANN wants.
According to Neylon, the documents released today have been published prematurely; with a little more time agreement could be reached on some of the remaining differences.
Again: expect fireworks in Beijing.
Whois records will be verified
But the new RAA is not all friction.
ICANN and registrars have finally come to agreement on important topics where there was previously sharp divergence.
Registrars have agreed to a new Whois Accuracy Program Specification that is a lot weaker than ICANN had, working from a blueprint laid out by governments and law enforcement agencies, first asked for.
Under the 2013 RAA signed-up registrars will have to start verifying certain elements of the contact information submitted by their registrants.
Notably, there’ll be a challenge-response mechanism for first-time registrants. Registrars will ask their customers to verify their email address or enter a code that has been sent to them via SMS text message or phone.
Note the “or” in that sentence. ICANN and law enforcement wanted registrars to do email “and” phone verification, but ICANN appears to have relented after months of registrars yapping about costs.
In future practice, because email verification is far easier and cheaper to implement, I’d be surprised if phone verification is used in anything but the rarest of cases.
Other data points will also be verified, but only to see that they conform to the correct formats.
Registrars will have to make sure that mailing addresses meet the Universal Postal Union standards, and that phone numbers conform to International Telecommunications Union formatting, for example.
They’ll also have to verify that the street address exists (if they have access to that data) but there will be no obligation to make sure that address and phone number actually belong to the registrant.
Registrants that provide patently false information that fails registrar verification will get 15 days to correct it or face the suspension of their domains.
ICANN wants registrars to also verify their customer records (which are usually different to the Whois records and, anecdotally, more accurate anyway) too, but registrars have so far not agreed to do so.
Taken as a whole, at first reading it’s difficult to see how the new Whois verification spec will do anything to prevent fast-turnover abuse such as phishing, but it may go a small way to help law enforcement investigate longer-term scams such as counterfeit goods sites.
The proposed 2013 RAA, along with more explanatory documents than you could possibly read in a coffee break is now open for public comment, with the reply period closing shortly after the Beijing meeting.

ICANN seeks more power over new gTLD registries

When ICANN published a new draft of its basic Registry Agreement for wannabe new gTLD operators last week, much of the focus was on the new Public Interest Commitments mechanism, but a whole bunch of other big changes were also proposed.
ICANN has floated some quite significant amendments that would give it greater powers to approve mergers and acquisitions and more or less unilaterally change registries’ contracts in future.
Here’s my take on the biggest changes.
Regulating M&A activity
When a new gTLD registry business is acquired, ICANN wants to have greater rights to approve the transaction.
Changes to Section 7.5 would enable ICANN to check that the buyer and its ultimate parent company “meets the ICANN-adopted specification or policy on registry operator criteria then in effect”.
That would specifically include fresh background checks on the acquirer and its parent company.
For new gTLD applicants planning to flip their gTLDs in future, it means the buyers would be subject to the same scrutiny as the applicants themselves are today.
But — and it could turn out to be a big but — these checks would not be carried out if the registry’s buyer was already itself a compliant, ICANN-contracted gTLD registry.
In other words, it is going to be much easier for gTLD registries to acquire each other than it will be for outsiders to acquire them.
Had the rules been in place before now they would have complicated, for example, the acquisition of .pro by Hostway (not already a registry), but not its subsequent acquisition by Afilias (which already had .info).
Powers to change the contract
ICANN wants to grant itself the ability to make “Special Amendments” to all gTLD registry agreements in future without the consent of the registries.
Under the current version of the Registry Agreement, such amendments would need the approval of registries representing two-thirds of all registry fees paid to ICANN before they became law.
(It’s possible that this would give Verisign, as .com/.net registry, a de facto veto due to its market share).
But ICANN wants to change this rule to give its own board of directors the ability to impose amendments to the contract on registries, even if the registries vote against them.
The board would need a supermajority vote (66%, which pretty much every board vote receives anyway) and would need to be “justified by a substantial and compelling need”, quite a subjective threshold, in order to ignore the registries’ protests.
Special Amendments could not cover basic things like pricing or the definition of “registry services”.
ICANN, no doubt bruised by 18 months of laborious Registrar Accreditation Agreement renegotiations, says the change is “of fundamental importance and deserves careful attention given the long-term nature of registry agreements”.
But ICANN contracted parties are usually pretty reluctant to give ICANN more powers over their businesses, especially when it comes to sacrificing their right to renegotiate their contracts, so I can’t see these proposed changes to the Registry Agreement being accepted without hot debate.
Reserved Names
Section 2 of the agreement has been tweaked to make it a bit clearer under what circumstances registries are able to register names for their own use, or block them, and when they have to pay ICANN fees to do so.
The new language makes it clear that registries will not have to pay ICANN fees, and won’t have to use accredited registrars, for domains that are completely blocked from registration and are not used by the registry or anyone else.
By my reading, this could cover the kind of defensive blocking services that many applicants plan to offer to trademark owners, and other anti-abuse mechanisms, but not domains that registries plans to “reserve” for their own use.
At first glance, this might be seen as something that primarily affects dot-brands (which own all the second-level domains in their gTLDs) but most will probably be protected by the 50,000-domain threshold that must be passed before per-domain ICANN fees kick in.
Names that are held back for the registry to use would still have to be registered through a registrar and would incur ICANN fees, with a handful of named exceptions (nic.tld, www.tld, etc).
The new Registry Agreement also includes the final list of strings related to the Red Cross and International Olympic Committee that need to be reserved at the second level, along with a placeholder for reservations of strings related to other intergovernmental organizations.
Other stuff
There are quite a lot of proposed changes (pdf) to the agreement, which are currently open for public comment, and it’s possible I may have missed something equally important as the above.
I’m wondering, for example, about the possible impact of the changes to Specification 7 that seem to make registries responsible if their registrars do not uphold intellectual property rights protection mechanisms.
Also, do the changes to Spec 4 suggest that ICANN plans to outsource the job of Centralized Zone Data Access Provider? What’s the impact on applicants of the changes to Continuing Operations Instrument?
What have you spotted?

New .com contract revealed: Verisign gets to raise prices, ICANN makes millions more

ICANN and Verisign both stand to make oodles of cash from their renewed .com registry contract.
A proposed draft of the next .com Registry Agreement was published by ICANN late this evening.
It would enable Verisign to carry on raising its .com registry fee by 7%, in four of the next six years. This provision, which was in the 2006 agreement also, was not unexpected.
But the deal will also see Verisign pay ICANN millions of dollars more in transaction fees.
Instead of a quarterly lump sum, which is capped at $4.5 million in the current contract, ICANN will instead get a $0.25 fee for every year of a .com registered, renewed or transferred.
According to my quick-and-dirty calculations, that would have brought ICANN approximately $6 million in extra revenue — roughly $24 million in total — from .com domains last year.
(The most recent .com registry reports show billable transactions per month worth about $2 million to ICANN, using the new agreement’s calculation. However, under the current agreement ICANN can only collect $18 million per year, according to its last approved budget.)
The revised contract contains several other changes also. I’ll have more coverage of those tomorrow.
The deal, which is not expected to come into effect until the end of November, is now open for public comment until April 26.
It needs to be approved by the ICANN board of directors, the Verisign board and the US Department of Commerce before it is finally signed.