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Governments dig in over new TLD objections

Kevin Murphy, April 13, 2011, 11:32:17 (UTC), Domain Registries

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.
ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.
The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.
Yeah, it’s getting a bit complex.
In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.
This is a preliminary analysis.
Controversial TLDs
The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.
ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.
The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.
The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.
The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.
Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.
Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.
Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”
This seems unworkable.
Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.
The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.
If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?
If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.
Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.
This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.
Trademark Protection
Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.
Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?
From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.
Registrar-Registry Cross Ownership
ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.
Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.
But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs
Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.
But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.
The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.
The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.
The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.
Law Enforcement
The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.
This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.
Geographic Names
If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.
The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.
If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.
More Delays?
The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.
If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.
It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.
But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.
The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.

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Comments (7)

  1. A few points worth noting.
    1. It’s not the “world’s governments,” it’s the governments in GAC, or rather a subset, since it’s probable that this was drafted by the U.S. and European members.
    2. GAC changed its rules on consensus in this document. It used to be that GAC only spoke in a unanimous voice when it spoke. Now the GAC is saying that it can give advice even when there’s not consensus, but that it will report when there isn’t. This tells me that there is dissension in the GAC ranks. Depending on how they report it (are the dissenters identified?) it could also be a way of exposing the dissenters.
    3. The tone of the missive is not combative. It’s the tone of someone who’s negotiating, and I think that’s what’s going on. If the GAC were really saying to ICANN, “You can’t tell us what to do,” they would have delayed things until after the new Guidebook, and sat there with their arms folded. I actually think it *is* difficult for GAC to herd all their members together to make decisions, and that probably contributed to the delay.
    4. There is good movement on a number of substantive points. Trademarks are not mentioned, as you point out. GAC has moved toward the Board on other issues, and (importantly) has largely accepted the Board’s qualification of various issues as “agreed” (they could have said, you say we agree, but we don’t accept that we’ve agreed).
    There was no way that the GAC was going to send a document full of sunshine and roses. The members from Europe and the U.S., at least, are able negotiators. There is still another meeting with the Board in May and the usual last-minute brinksmanship. The GAC is showing that they care most about their own prerogatives (early warning, redelegation of geo names) and much less about their lobbyists concerns. They are also using this moment of leverage to improve their own institutional power within ICANN by changing the definitions of GAC consensus and GAC advice.
    The parties are very close at this point, and even if the Board rejects GAC advice, they are likely to lean toward it, to accommodate it, and to minimize the areas of disagreement. In the event of non-unanimity between the Board and the GAC (which seems to me likely) of course the GAC will pronounce themselves dissatisfied, but they will have achieved much of what they wanted.
    This is not a “go to hell” letter to ICANN, it’s a “we want a better deal” letter.

  2. theo says:

    After reading this post i tend to say it is not about a better deal as Mr. Van Couvering points out.
    I am not informed and i my response is based on what i read here.
    But i do read a few “goto hell” here.
    Looking at the GAC proposal : Law Enforcement
    This alone is a real heavy subject. And i am not touching the others ones here.
    Looks to me this is far from being settled and a done deal.

  3. MS says:

    AGB Final approval on June 20 is still a good bet from what i see.
    Remember this is past the 6th version and anything crucial to all involved has been long decided, in addition i think the various ICANN groups have plenty of done and ready to go work which is not yet incorporated fully and will possibly help expedite matters, not the other way around but that may be felt after the AGB approval.
    We will all find out soon enough.

  4. […] areas of disagreement continue to include rights protection mechanisms for trademark holders and processes for […]

  5. […] areas of disagreement continue to include rights protection mechanisms for trademark holders and processes for […]

  6. […] this year, the GAC asked ICANN to beef up the Guidebook to make community support or non-objection a proactive requirement for applicants, but ICANN […]

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