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How the GAC could derail new TLDs in Singapore

Kevin Murphy, June 1, 2011, 14:06:35 (UTC), Domain Policy

The pieces are moving into place for what could be the final battle over new top-level domains between ICANN and its Governmental Advisory Committee, in Singapore later this month.
ICANN made few concessions to the GAC’s biggest concerns in the latest Applicant Guidebook, which begs the question of whether the United States will now be asked to play its trump card.
Earlier this week, European Commissioner Neelie Kroes made threatening noises in ICANN’s direction, saying that by approving the controversial .xxx domain over GAC advice, ICANN had showed that it cannot be trusted with new top-level domains.

If the ICANN board chooses to move forward [with .xxx] despite significant governmental concerns, what does this tell us for the next meeting in Singapore, which is widely expected to launch the next batch of TLDs? The concerns of governments in this process are not trivial, ranking from trademark protection to cooperation with law enforcement

The current Guidebook has not accepted (with some good reasons) many of the GAC’s requests on the issues of trademark protection and the governmental right to object to new TLD applications.
In a recorded address at the EuroDIG conference in Serbia this week, before the Guidebook was published, Kroes called for ICANN’s multistakeholder internet governance model to be “amended to better take into account the voice of governments”.
She said she is supported by colleagues in the EU and overseas, presumably referring to Lawrence Strickling, head of the NTIA, with whom she met last month to discuss .xxx and new TLDs.
In her speech, Kroes called for the United States to leverage its unique position of authority over ICANN to influence change at the organization:

The expiry of the IANA contract in September will be a unique opportunity to sharply focus on a set of minimum requirements for whichever organization will be designated to carry out the future IANA functions. Specifically, I feel that the new contract should include specific provisions to improve standards of corporate governance in the organization in charge.
…whichever will be the organization resp for naming and addressing resources, it should be required to demonstrate it has support of global internet community before it makes proposals to add any further top-level domains to the internet.

This is perhaps the most explicit outside call yet for the US to use the IANA contract both to get the GAC a louder voice at the ICANN table and to have the demands of the trademark lobby taken fully into account in the new TLDs program.
The US Trump Card
It’s no secret that the US has an ace up its sleeve, in the form of the soon-to-expire IANA contract.
IANA is responsible for the paperwork when updates are to be made to the DNS root, whether they are redelegating a ccTLD, changing name servers, or adding an entirely new TLD.
When a new TLD is approved, ICANN’s IANA department forwards the request to the NTIA, which reviews it before instructing VeriSign to add the TLD to the A-root.
IANA is currently a no-fee contract between the NTIA and ICANN. Theoretically, the NTIA could award the contract to whichever organization it chooses, after it expires.
This is unlikely to happen. But if it did, ICANN’s powers would be severely curtailed – another entity would be above it in the root’s chain of command.
Alternatively, the NTIA could amend the contract to impose conditions on ICANN, such as making it more accountable to the GAC. This is what Kroes appears to be pushing for.
Strickling himself said a month ago that he has not ruled out the option of using the IANA contract as “as a vehicle for ensuring more accountability and transparency” at ICANN.
There is another theory, however, which is currently doing the rounds.
As it currently stands, if ICANN approves the Applicant Guidebook in Singapore on June 20, the expected timetable has it accepting new gTLD applications as early as November.
By that time it would, presumably, have already renewed the IANA deal, and would still have its nominal powers to add new TLDs to the root.
But buried deep within the IANA contract (pdf) is a provision that allows the NTIA to unilaterally extend its term by six months – from September 30, 2011 to March 31, 2012.
If the NTIA were to exercise this option, it could put a serious question mark over ICANN’s ability to start accepting new TLD applications this year.
With no guarantee that its authority to add new TLDs to the root would be renewed, would risk-averse ICANN be happy to go ahead and accept tens of millions of dollars in application fees?
It seems unlikely.
I’ve little doubt that this scenario will have been discussed by the NTIA and its allies. It would look better politically for the US if it had the support of the GAC before making such a play.
Since the GAC seems to want to buy time for further talks on new TLDs before ICANN kicks off the program, the IANA contract extension may appear to be a good way of going about it.
But with ICANN seemingly set to approve a Guidebook that will remain open to significant amendments post-Singapore, does the IANA threat need to be invoked at all?
If negotiations over trademark protection, developing world funding and GAC objections can remain open even after the Guidebook has been “approved”, perhaps there’s scope for a more peaceful resolution.

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Comments (6)

  1. JS says:

    What message would a IANA contract extension send to the countries who are not actively lobbying the US for more GAC powers/TM protection ?

  2. High Noon in Singapore? says:

    “Risks are high on both sides
    Now the stakes and risks are high on both sides. If the GAC would move into a position to dictate to the ICANN Board what to do, this would mean the end of the multi-stakeholder model and introduce a regime of state control over the Internet with all the options for governmental censorship and surveillance.
    On the other hand the same result could emerge when the Board ignores the GAC. Governments could become furious and look for alternative mechanisms to exercise power over the Internet, probably via the United Nations.
    And if nothing happens, if the new gTLD project is again postponed to ICANNs 42nd meeting in Dakar in October 2011, the Internet community would lose its remaining trust into ICANN and the multi-stakeholder model. A political innovation, introduced in 1998, would be buried in the fire of misunderstandings, frustrations and incapability to find a solution.
    This could trigger a search for alternative models and pave the way towards a fragmentation of the Internet.
    Insofar as the endgame around the new gTLD program is not a zero-sum game, with winners and losers. Either both sides will win or both sides will lose.”

  3. […] Commissioner Neelie Kroes this week continued her severe criticism of ICANN. According to DomainIncite, Kroes said: “If the ICANN board chooses to move forward [with the ‘.xxx’ TLD] despite […]

  4. Stephen nichols says:

    Who would get the IANA contract if not ICANN? The UN and bang goes any control by GAC and goodbye to the multi-stakeholder model that everyone supports. Hollow treat to ICANN and gTLD expansion.

    • Joe says:

      Good point, but there’s a darker threat looming: divestment from the multi-stakeholder model. Not all governments care for it. The USG might think that the best way to keep it intact within ICANN would be to have the closest Board/GAC cohesion possible, as contradictory as that might seem.

  5. jcady says:

    I’m getting more and more the impression that, if the coveted multi-stakeholder model is going to stay in the game, it’s going to be an endless game of chicken with governments, many of which would rather live without it – if only they could.

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