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New gTLDs applicants should brace for GAC delays

Kevin Murphy, May 12, 2013, 09:47:12 (UTC), Domain Policy

New gTLD applicants affected by Governmental Advisory Committee advice may be about to find that their launch runway is quite a bit longer than they hoped.
That’s the message that seems to be coming through subtly from ICANN and the GAC itself — via last week’s applicant update webinar and GAC chair Heather Dryden — right now.
Dryden made it clear in an official ICANN interview, recorded early last week, that the GAC expects its Beijing communique to be “fully taken into account”, lest governments abandon ICANN altogether.
But at the same time she seemed to suggest that the rest of the community may have misunderstood the GAC’s intentions, due in part to the fact that its deliberations were held in private.
Here’s a slice of the interview with Brad White, ICANN’s media relations chief:

WHITE: Suppose the [ICANN] board in the end says “thank you very much for the advice, we’ve looked at it, but we’re moving on” and basically ignores a lot of that advice?
DRYDEN: I think it would be a very immediate reaction, questioning the value of participating in the Governmental Advisory Committee. If it is going to be the place for governments to come and raise their concern and influence the decision making that occurs at ICANN then we have to be able to demonstrate that the advice generated is fully taken into account or to the maximum extent appropriate taken in and in this way governments understand that the GAC is useful mechanism for them.

WHITE: What you seem to be saying is there is concern about whether or not some governments might pull out from that multi-stakeholder model?
DRYDEN: Right, right why would they come? How would they justify coming to the GAC meetings? Why would they support this model if in fact it’s there aren’t channels available to them and appropriate to their role and perspective as a government?

Under ICANN’s bylaws, the board of directors does not have to adopt GAC advice wholesale.
It is able to disagree with, and essentially overrule, the GAC, but only after they’ve tried “in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.
The only time this has happened before was in February 2011, when discussions covered the final details of the new gTLD program and the imminent approval of the .xxx gTLD.
Then, the ICANN board and the GAC gathered in Brussels for two days of intense face-to-face discussions, which was followed by multiple “scorecard” drafts and follow-up talks.
It seems very likely that we’re going to see something similar for the Beijing advice, if for no other reason than the communique is vague enough that ICANN will need a lot of clarification before it acts.
So does this mean delay for new gTLD applicants? Probably.
Dryden, asked about the GAC’s agenda for the ICANN public meeting in Durban this July, said:

There may well also be aspects of safeguard advice that we would discuss further with the board or with the community or would need to, particularly the implementation aspects of some of the new safeguards that the GAC identified.

The “safeguard” advice is the large section of the Beijing communique that attempts to impose broad new obligations on over 500 new gTLDs in “regulated or professional sectors”.
Dryden appeared to acknowledge the criticism that much of the advice appears unworkable to many, saying:

The intent behind this was to provide a reminder or to reinforce the importance of preexisting obligations and the applicability of national laws and really not to impose new burdens on applicants or registrants.
However, there are measures proposed in that safeguard advice where there are real implementation questions and so we think this is a very good focus for discussions now in the community with the GAC and with the board around that particular aspect of the advice.

The safeguard advice is currently open for public comment. I outline some of the many implementation questions in this post.
White put to Dryden DI’s criticism that the communique was a “perplexing, frustrating mess” aimed at using the DNS to solve wider problems with the internet.
For example, the GAC appears to want to use ICANN contracts use introduce new ways to enforce copyrights and data security regulations, something perhaps better addressed by legislation.
She responded:

It’s really not intended to impose a new global regulatory regime. It is intended to be consistent with ICANN’s existing role and serve as a reminder to those that have applied of what is really involved with implementing if they are successful a string globally as well as really wanting to emphasize that some of those strings raise particular sensitivities for governments

So have we misunderstood the GAC’s intentions? That seems to be the message.
Watch the whole Dryden interview here:

Based on current evidence, I’d say that any applicant covered by the Beijing communique that still believes they have a chance of signing a contract before July is kidding itself.
The ICANN board’s new gTLD program committee met on Wednesday to discuss its response to the Beijing communique. The results of this meeting should be published in the next few days.
But there’s little doubt in my mind that ICANN doesn’t have enough time before Durban to pick through the advice, consult with the GAC, and come up with a mutually acceptable solution.
Quite apart from the complexity of and lack of detail in the GAC’s requests, there’s the simple matter of logistics.
Getting a representative quorum of GAC members in the same room as the ICANN board for a day or two at some point in the next 60 days would be challenging, based on past performance.
I think it’s much more likely that a day or two will be added to the Durban meeting (before its official start) to give the board and GAC the kind of time they need to thrash this stuff out.
ICANN’s latest program timetable, discussed during a webinar on Thursday night, extended the deadline for the ICANN board’s response to the GAC from the first week of June to the end of June.
On the call, program manager Christine Willett confirmed that this date assumes the board adopts all of the advice — it does not take into account so-called “bylaws consultations”.
While it seems clear that all 518 applications (or more) affected by the “safeguards” advice won’t be signing anything before Durban, it’s less clear whether the remaining applicants will feel an impact too.

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Comments (14)

  1. My math say:
    .xxx = 2 days
    518 gTLDs = how many days?
    Even if these 518 strings are grouped into 10-15 categories it should take at least 10-15 days to sort the communique at Durban.

    • Kevin Murphy says:

      The two-day Brussels meeting didn’t really discuss .xxx at all. If I recall correctly, it was brought up only briefly. The rest of the time was devoted to talking about new gTLDs generally.

  2. This as a positive move from GAC and ICANN. It seems many applicants believed that they could launch sensitive strings with the minimal safeguards and without any relevant multi-stakeholder governance with each sensitive string’s appropriate community. I have made countless comments at the ICANN meetings and to the Board about these problematic issues and glad that GAC has listened to countless music community efforts to look into these serious issues. These are NOT new issues. We have been pushing for them for years. Kudos to GAC for taking the initiative.

  3. Constantine the communique is totally useless. It says nothing specific and mentions hundreds of strings. What is wrong with .free that is not already wrong with .com?

    • Konstantino, I totally disagree with your comments that the GAC advice is useless. .COM is not part of the new gTLD program so not sure why you are making it an issue. U.S Congress has recently stated that they will look into the current copyright law that does little to mitigate piracy because of all the loopholes surrounding it. For example, the DMCA has been used by many parties (including .MUSIC applicants) to facilitate piracy and profit from it. Also famous brands consistently advertise on pirate networks which give the perception to consumers that the site is legal. If you add a .MUSIC to the mix, it will add another layer of legitimacy which can be used by pirates to their advantage. The current system is broken and it is responsible to include enhanced safeguards. There are always two sides to every story. So you are suggesting that a .BANK or a .PHARMACY should be open for everyone to register and abuse? Need to use some common sense here and be responsible. According to McAfee .COM has been the riskiest domain in regards to abuse. It is the largest but percentage-wise it is used by many pirate sites to carry on their business and not compensate creators for their work.

  4. gpmgroup says:

    The communiqué is well intentioned.
    Much of the thinking behind ICANN’s proposals for new gTLDs is fundamentally flawed, it is only the efficiencies the existing system provides over traditional non- Internet systems that has allowed ICANN to proceed as far as it has.
    Some of the problems stem form the fact that many of those leading the new gTLDs development discussions wanted to benefit from them and were allowed to skew policy in ways they believed would help them in this aim, even if such policies where against the wider public interest. While they may think they have been very clever it is likely much of the potential benefit of new gTLDs will as a result be squandered.
    It’s no use waiting until the second round to say “oh we made a mistake” because once implemented it will be very difficult, if not impossible to undo the damage, so it is very important as many as possible of these issues are dealt with prior to launch.
    The lack of categories makes trying to mitigate some of the failings of ICANN’s plan much harder, but it also means the program as a whole will likely provide less genuine benefit for people outside of ICANN and more benefit for ICANN and its contracted and would be contracted parties.
    None of this new, ICANN hasn’t been prepared to consider either categories or significant changes/improvements to their one size fits all plans in the past, preferring instead to make concessions to the most powerful lobbying groups.

    • Kevin Murphy says:

      While I agree with much of what you say, I’d just like to add that ICANN did create the Community Objection in order to do the same kind of thing the GAC is now trying to do with its “regulated or professional sectors” advice.

      • gpmgroup says:

        To be honest the Community Objection process isn’t a very good solution to the underlying problems of poor framework design.
        It assumes for EACH new gTLD the “community” will be sufficiently informed to fully understand the implications of an application. It assumes the “community” will have the resources and the coordination to take action. It assumes the “community” can easily be defined as a homogeneous entity. Plus those assumptions need to be met within a very short space of time since retrospective corrections will be incredibly difficult if not impossible.
        In many cases the dangers from the assumptions are compounded by the lack of categories.
        Assumptions run the risk of creating very bad policy, ultimately resulting in widespread perceptions of inequity through poor standards of governance. Wasn’t it Oscar Wilde who pointed out over a 100 years ago that “When you assume, you make an ass out of u and me”?

  5. Their intentions could be good but that didn’t translate into a meaningful communique and it doesn’t show any real effort. Saying “we have doubts and we need safeguards for all new gTLDs” doesn’t make an progress.
    The communique would have been better if it was one line: “We are not ready for launch. Give GAC 3 more months to produce a serious and detailed communique and ICANN 9 more months to address all the issues.”

    • Kevin Murphy says:

      I agree with most of this. It would have looked better to ask for more time rather than rush out something that looked poorly thought-out.

  6. Philip Corwin says:

    The first six GAC safeguard recommendations cover all applicants, not just those seeking strings related to regulated industries and professions – and the GAC wants all safeguards to be contractually enforceable. So to the extent that the Board adopts them and further amendment of the RA is required, more delay is to be expected due to the associated notice and comment period.
    Also remember that separate from the safeguard advice are the GAC positions on singular and plurals, and on restricted and exclusive access strings, that could also affect applicants in those categories.

    • gpmgroup says:

      Even “contractually enforceable” in ICANN circles can at times be very ineffective.
      For example, a cursory review of the existing and proposed new RAA would suggest that registrars are not allowed to acquire expiring names and are not allowed to claim subject internal transfers to a 60 day lock, using the justification/reasoning the registrant has “agreed” to a contract which it is claimed takes precedence over the agreements signed with ICANN.

  7. Maksim says:

    Interesting, let’s wait and see how long it will finally take.

  8. Ray Marshall says:

    As I continue to take in more perspectives on this issue, I come to the conclusion that ICANN is suffering severely from scope creep. Doesn’t ICANN have guardrails in place via the guidebook/mission statement/bylaws to prevent this type of activity? Seems like a sequel to Groundhog Day, i.e., http://www.icann.groundhogday. That would be a great movie.

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