Could this be ICANN’s most important public comment period ever?

How much power should governments have over the domain name industry? Should the industry be held responsible for the actions of its customers? Are domain names the way to stop crime?
These are some of the questions likely to be addressed during ICANN’s latest public comment period, which could prove to be one of the most important consultations it’s ever launched.
ICANN wants comments on governmental advice issued during the Beijing meeting two weeks ago, which sought to impose a broad regulatory environment on new gTLD registries.
According to this morning’s announcement:

[ICANN’s Board New gTLD Committee] has directed staff to solicit comment on how it should address one element of the advice: safeguards applicable to broad categories of New gTLD strings. Accordingly, ICANN seeks public input on how the Board New gTLD Committee should address section IV.1.b and Annex I of the GAC Beijing Communiqué.

Annex 1 of the Beijing communique is the bit in which the GAC told ICANN to impose sweeping new rules on new gTLD registries. It’s only a few pages long, but that’s because it contains a shocking lack of detail.
For all new gTLDs, the GAC wants ICANN to:

• Apply a set of abuse “safeguards” to all new gTLDs, including mandatory annual Whois accuracy audits. Domain names found to use false Whois would be suspended by the registry.
• Force all registrants in new gTLDs to provide an abuse point of contact to the registry.
• Make registries responsible for adjudicating complaints about copyright infringement and counterfeiting, suspending domains if they decide (how, it’s not clear) that laws are being broken.

For the 385 gTLD applications deemed to represent “regulated or professional sectors”, the GAC wants ICANN to:

• Reject the application unless the applicant partners with an appropriate industry trade association. New gTLDs such as .game, .broadway and .town could only be approved if they had backing from “relevant regulatory, or industry self-­regulatory, bodies” for gaming, theater and towns, for example.
• Make the registries responsible for policing registrants’ compliance with financial and healthcare data security laws.
• Force registries to include references to organic farming legislation in their terms of service.

For gTLD strings related to “financial, gambling, professional services, environmental, health and fitness, corporate identifiers, and charity” the GAC wants even more restrictions.
Essentially, it’s told ICANN that a subset of the strings in those categories (it didn’t say which ones) should only be operated as restricted gTLDs, a little like .museum or .post are today.
It probably wouldn’t be possible for a poker hobbyist to register a .poker domain in order to blog about his victories and defeats, for example, unless they had a license from an appropriate gambling regulator.
Attempting to impose last-minute rules on applicants appears to reverse one of the GAC’s longstanding GAC Principles Regarding New gTLDs, dating back to 2007, which states:

All applicants for a new gTLD registry should therefore be evaluated against transparent and predictable criteria, fully available to the applicants prior to the initiation of the process. Normally, therefore, no subsequent addition selection criteria should be used in the selection process.

The Beijing communique also asks ICANN to reconsider allowing singular and plural versions of the same string to coexist, and says “closed generic” or “exclusive access” single-registrant gTLDs must serve a public interest purpose or be rejected.
There’s a lot of stuff to think about in the communique.
But ICANN’s post-Beijing problem isn’t whether it should accept the GAC’s advice, it’s to first figure out what the hell the GAC is actually asking for.
Take this bit, for example:

Registry operators will require that registrants who collect and maintain sensitive health and financial data implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law and recognized industry standards.

This one paragraph alone raises a whole bunch of extremely difficult questions.
How would registry operators identify which registrants are handling sensitive data? If .book has a million domains, how would the registry know which are used to sell books and which are just reviewing them?
How would the registries “require” adherence to data security laws? Is it just a case of paying lip service in the terms of service, or do they have to be more proactive?
What’s a “reasonable and appropriate security measure”? Should a .doctor site that provides access to healthcare information have the same security as one that merely allows appointments to be booked? What about a .diet site that knows how fat all of its users are? How would a registry differentiate between these use cases?
Which industry standards are applicable here? Which data security laws? From which country? What happens if the laws of different nations conflict with each other?
If a registry receives a complaint about non-compliance, how on earth does the registry figure out if the complaint is valid? Do they have to audit the registrant’s security practices?
What should happen if a registrant does not comply with these laws or industry standards? Does its domain get taken away? One would assume so, but the GAC, for some reason, doesn’t say.
The ICANN community could spend five years discussing these questions, trying to build a framework for registries to police security compliance, and not come to any consensus.
The easier answer is of course: it’s none of ICANN’s business.
Is it ICANN’s job to govern how web sites securely store and transmit healthcare data? I sure hope not.
And those are just the questions raised by one paragraph.
The Beijing communique as a whole is a perplexing, frustrating mess of ideas that seems to have been hastily cobbled together from a governmental wish-list of fixes for perceived problems with the internet.
It lacks detail, which suggests it lacks thought, and it’s going to take a long time for the community to discuss, even as many affected new gTLD applicants thought they were entering the home stretch.
Underlying everything, however, is the question of how much weight the GAC’s advice — which is almost always less informed than advice from any other stakeholder group — should carry.
ICANN CEO Fadi Chehade and chair Steve Crocker have made many references recently to the “multi-stakeholder model” actually being the “multi-equal-stakeholder model”.
This new comment period is the first opportunity the other stakeholders get to put this to the test.

NAF prices URS at $375 to $500 per case

The National Arbitration Forum has released its price list for Uniform Rapid Suspension complaints, saying that the cheapest case will cost $375.
That’s for cases involving one to 15 domains. Prices increase based on the number of domains in the filing, capped at $500 for cases involving over 100 names.
The prices are within the range that ICANN had asked of its URS providers.
Some potential URS vendors had argued that $500 was too low to administer the cases and pay lawyers to act as panelists, but changed their tune after ICANN opened up an RFP process.
NAF’s price list also includes response fees of $400 to $500, which are refundable to the prevailing party. There are also extra fees for cases involving more than one panelist.
The prices are found in the NAF’s Supplemental Rules for URS, which have not yet been given the okay by ICANN. NAF expects that to come by July 1.

Asian outfit named second URS provider

The Asian Domain Name Dispute Resolution Centre has been approved by ICANN as a provider of Uniform Rapid Suspension services.
The two organizations signed a memorandum of understanding last week, ICANN said.
ADNDRC is the second URS resolution provider to be named, after the US-based National Arbitration Forum. It’s got offices in Beijing, HongKong, Seoul and Kuala Lumpur and tends to hand local cases.
While it’s been a UDRP provider since 2001, it’s only handled about 1,000 cases in that time, according to DI’s records. That’s about 16 times fewer than NAF and 17 times fewer than WIPO.
ICANN said that more providers will be appointed in future.
URS is a faster, cheaper version of UDRP that allows obviously trademark-infringing domains to be suspended — not transferred — for about $500 a pop. It will only apply to new gTLDs at first.

ICANN starts the clock on new gTLD GAC advice

The over 500 new gTLD applicants affected by Governmental Advisory Committee advice on their bids have 21 days from today to file their responses officially with ICANN.
But there’s still some confusion about who exactly is expected to file responses, given the extraordinary breadth of the advice contained within the GAC’s Beijing communique.
ICANN today put applicants on formal notice of the publication of the Beijing communique, which actually came out a week ago, and said applicants have until May 10 to respond to the ICANN board.
What it didn’t do is say which applicants are affected. Technically, it could be all of them.
The Beijing communique contains six “safeguards” related to things such as abuse and security, which it said “should apply to all new gTLDs”.
On a more granular level, the GAC has called out, we believe, 517 individual applications that should not be approved or that should not be approved unless they do what the GAC says.
The Beijing communique, it could be argued, throws the whole new gTLD program into disarray, and this is the first chance applicants will get to put their views directly in writing to the ICANN board.

Will the Trademark Clearinghouse kill off premium domains?

Rules proposed for the new Trademark Clearinghouse threaten to cut off some of new gTLD registries major sources of early revenue, according to registry providers.
Premium domain sales and founders programs are among the now industry-standard practices that would be essentially banned under the current draft of the TMCH rules, they say.
The potential problems emerged in a draft TMCH Requirements document circulated to registries 10 days ago and vigorously discussed during a session at the ICANN meeting in Beijing last week.
The document lists all of the things that new gTLD registries must and must not, and may and may not, do during the mandatory Sunrise and Trademark Claims rights protection launch periods.
One of the bits that has left registries confused is this:

2.2.4 Registry Operator MUST NOT allow a domain name to be reserved or registered to a registrant who is not a Sunrise-Eligible Rights Holder prior to the conclusion of the Sunrise Period.

What this means is that trademark owners get first dibs on pretty much every possible string in every gTLD.
“Trademark owners trump everything,” Neustar business affairs veep Jeff Neuman said during the Beijing meeting. “Trademark owners trump every possible use of every possible name.”
It would mean, for example, that if a new gTLD wanted to allocate some names to high-profile anchor tenants during a “founders program”, it would not be able to do so until after the Sunrise was over.
Let’s say the successful applicant for .shop wants to reserve the names of hundreds of shop types (book.shop, food.shop, etc) as premium names, to allocate during its founders program or auction later.
Because the .shop Sunrise would have to happen first, the companies that the own rights to, for example, “wallpaper” or “butcher” (both real US trademarks) would have first rights to wallpaper.shop and butcher.shop, even if they only planned to defensively park the domains.
Because there’s likely to be some degree of gaming (there’s a proof-of-use requirement, but the passing threshold is pretty low), registries’ premium lists could be decimated during Sunrise periods.
If ICANN keeps its TMCH Requirements as they are currently written, new gTLD registries stand to lose a lot of early revenue, not to mention control over launch marketing initiatives.
However, if ICANN were to remove this rule, it might give unscrupulous registries the ability to circumvent the mandatory Sunrise period entirely by placing millions of strings on their premium lists.
“Registries should have discretion to schedule their start-up phases according to their business plans so long as rights protection processes are honored, so that’s the balancing we’ve tried to do,” ICANN operations & policy research director Karen Lenz said during Beijing.
“It’s trying to allow registries to create requirements that suit their purposes, without being able to hollow out the rights protection intention,” she said.
The requirements document is still just a draft, and discussions are ongoing, she added.
“It’s certainly not our intention to restrict business models,” Lenz said.
Registries will get some flexibility to restrict Sunrise to certain registrants. For example, they’ll be able to disqualify those without an affiliation to the industry to which the gTLD is targeted.
What they won’t be able to do is create arbitrary rules unrelated to the purpose of the TLD, or apply one set of rules during Sunrise and another during the first 90 days of general availability.
The standard Registry Agreement that ICANN expects all new gTLDs to sign up to does enable registries to reserve or block as many names as they want, but only if those names are not registered or used.
It seemed to be designed to do things like blocing ‘sensitive’ strings, rather like when ICM Registry reserved thousands of names of celebrities and cultural terms in .xxx.
The Requirements document, on the other hand, seems to allow these names being released at a later date. If they were released, the document states, they’d have to be subject to Trademark Claims notices, but not Sunrise rules.
While that may be a workaround to the premium domains problem, it doesn’t appear to help registries that want to get founders programs done before general availability.
It seems that there are still many outstanding issues surrounding the Trademark Clearinghouse — many more than discussed in this post — that will need to be settled before new gTLDs are going to feel comfortable launching.

ICANN cancels New York new gTLD party

ICANN has decided to call off its big New York City new gTLD launch “party”, DI has learned.
The high-profile media event, scheduled for April 23, was set to feature an appearance from mayor Michael Bloomberg and was expected to be a coming-out party for new gTLDs.
The original plan was for ICANN to sign the first registry agreements with new gTLD applicants during the event, but that notion was later scrapped due to ongoing contract talks.
However, during the public forum at the ICANN Beijing meeting last week, CEO Fadi Chehade said that the event was still going ahead.
That, according to an ICANN email sent to registries and registrars today, appears to be no longer the case. The email cited “current timelines” as the reason for delaying the event.
The Registry Agreement and Registrar Accreditation Agreement still under discussion between ICANN and contracted parties, and there are other factors in play such as the Governmental Advisory Committee’s wide-ranging advice from Beijing and continued uncertainties about the Trademark Clearinghouse.
With so much up in the air, a public awareness-raising event for the program may have been seen as premature.
A second, private set of meetings between ICANN and domain name companies, also scheduled for April 23 in New York, is still going ahead, according to the ICANN email.
Following on from discussions held over the last few months, the New York talks will focus on improving the image and professionalism of the domain name industry, one of Chehade’s pet projects.
Talks will cover items such as: forming a DNS industry trade association, a possible trust-mark scheme, conferences and media/analyst outreach.

GAC Advice on new gTLDs “not the end of the story”

Governments may want new gTLD registries to become the internet’s police force, but ICANN doesn’t have to take it lying down.
ICANN is set to open up the shock Beijing communique to public comments, CEO Fadi Chehade said Friday, while chair Steve Crocker has already raised the possibility of not following the GAC’s advice.
“Advice from governments carries quite a bit of weight and equally it is not the end of the story,” Crocker said in a post-meeting interview with ICANN PR Brad White.
“We have a carefully constructed multi-stakeholder process,” he said. “We want very much to listen to governments, and we also want to make sure there’s a balance.”
The ICANN bylaws, he reminded us, give ICANN “a preference towards following advice from the GAC, but not an absolute requirement.”
That’s a reference the the part of the bylaws that enables ICANN’s board to overrule GAC advice, as long as it carries out consultation and provides sound reasoning.
It was invoked once before, when ICANN tried to get a handle on the GAC’s concerns about .xxx in 2011.
In this case, I’d be very surprised indeed if the GAC’s advice out of Beijing does not wind up in this bylaws process, if only because the document appears to be internally contradictory in parts.
It’s also vague and broad enough in parts that ICANN is going to need much more detail if it hopes to even begin to implement it.
It looks like at least 517 new gTLD applications will be affected by the GAC’s advice, but in the vast majority of cases it’s not clear what applicants are expected to do about it.
The first part of dissecting the Beijing communique will be a public comment period, Chehade said during the interview Friday. He said:

The community wishes to participate in the discussion about the GAC communique. So, alongside the staff analysis that is starting right now on the GAC communique we have decided to put the GAC communique out for public comment, soliciting the entire community to give us their input to ensure that the GAC communique is taken seriously but also encompasses our response, encompasses the views of the whole community.

Watch the full video below.

Delay not certain as new gTLD contracts reopened

The launch window for new gTLDs may have just got pushed back another month or two, following the announcement of a new 42-day comment period on registry and registrar contracts.
But ICANN CEO Fadi Chehade said he’s looking at ways to streamline the process to offset the delays.
During the public forum in Beijing yesterday, ICANN CEO Fadi Chehade said that he’d cancelled a scheduled April 20 meeting of its board of directors, during which the new agreements were targeted for approval.
Instead, new versions of the 2013 Registrar Accreditation Agreement and new gTLDs base Registry Agreement will be posted for public comment next week.
As these are expected to be the final versions of both documents, they’re also expected to have full comment periods of 42 days — 21 for comments and 21 for replies.
“I believe that putting the last version of RAA for 2013 out for full public comment process is actually strengthening that agreement,” Chedhade said today. “It makes it an agreement of the community.”
For the Registry Agreement, Chehade said talks with registries are going well and that he hopes to have a version ready for public comment agreed with negotiators in less than a week.
Assuming an April 19 start, that puts the earliest possible date for ICANN board approval at May 31, assuming the board waits for the comment period to end before giving it the rubber stamp.
Before the contracts are approved, they can’t be signed by registries and registrars, and before they are signed new gTLD applicants cannot progress to the final pre-launch stages of the delegation process.
But Chehade is weighing an idea put forward during the public forum by Donuts’ Jon Nevett: why not allow applicants to complete pre-delegation technical testing before contract signing?
“We could potentially do something about advancing this step ahead of contracting, finding a way to start pre-delegation testing before contracting is done,” Chehade said.

GAC delivers sweeping advice that will delay scores of new gTLDs by months

ICANN’s Governmental Advisory Committee has issued the kiss of death to two new gTLD applications and sweeping advice that will delay many, many more.
In its Beijing communique, issued this hour, the GAC as expected delivered advice against whole categories of gTLDs and provided a lengthy but “non-exhaustive” list of affected bids.
First, the GAC said that the .africa bid filed by DotConnectAfrica and the .gcc bid filed by GCCIX WLL should be rejected. Those were full consensus objections.
Two gTLDs related to Islam: .islam and .halal, have non-consensus objections, and will now have to be considered by the ICANN board of directors directly.
The GAC also said it needed more time, until ICANN’s meeting in Durban this July, to consider delivering specific advice against 14 more:

the GAC advises the ICANN Board to: not proceed beyond Initial Evaluation with the following strings: .shenzhen (IDN in Chinese), .persiangulf, .guangzhou (IDN in Chinese), .amazon (and IDNs in Japanese and Chinese), .patagonia, .date, .spa, .yun, .thai, .zulu, .wine, .vin

On the issue of plurals versus singulars, the GAC said ICANN should “Reconsider its decision to allow singular and plural versions of the same strings.” This affects about 60 applications.
But it doesn’t end there.
As predicted, the GAC has also issued swathes of advice against scores of proposed gTLDs in 12 categories: children, environmental, health and fitness, financial, gambling, charity, education, intellectual property, professional services, corporate identifiers, generic geographical terms and inherently governmental functions.
A “non-exhaustive” list of applications has been provided for each category, covering well over 100, setting the stage for a fight over inclusion for any application that the GAC forgot about.
If the GAC gets its way, any application that falls into one of these categories will have to have enhanced regulations governing Whois, abuse mitigation, and security.
The GAC also has its say on “closed generics”, which it calls “exclusive registry access” strings. They should only be awarded if they serve a public interest purpose, the GAC said.
In short, the advice is extraordinarily broad and seems to delegate the considerable work of picking through the mess to ICANN.
More analysis later…

Plural gTLDs give ICANN huge credibility risk

Can .pet and .pets co-exist peacefully on the internet? Or would they create such confusion among internet users that the whole new gTLD program would look irresponsible and foolish?
That’s the question ICANN is due to face today, as constituents line up at the public forum in Beijing to question its board of directors about the problem of plurals in new gTLDs.
The Governmental Advisory Committee, the Business Constituency, the Intellectual Property Constituency and others have all openly questioned the sanity of allowing plurals in recent days.
Right now there are 59 collisions between singular and plural gTLD applications (in English, at least, according to my analysis), involving 23 unique string pairs.
These are: .accountant(s), .auto(s), career(s), .car(s), .coupon(s), .cruise(s), .deal(s), .fan(s), .game(s), .gift(s), .home(s), .hotel(s), .kid(s), .loan(s), .market(s), .new(s), .pet(s), .photo(s), .review(s), .sport(s), .tour(s), .web(s) and .work(s).
None of these singular/plural clashes are currently in contention sets with each other, meaning there’s nothing to stop them all being delegated by ICANN. We could have a .loan alongside a .loans a year from now.
It seems to be only common sense that these clashes will cause frequent confusion. I doubt many would pass the longstanding “shouted across a crowded bar” test for URL clarity.
Would you want to register a .photo domain if you knew .photos was also available, and vice versa? If you did, wouldn’t you also want to register the .photos equivalent, just in case?
That’s one of the things ICANN’s commercial stakeholders are worried about: 23 extra TLDs means 23 extra defensive registrations for every brand they want to protect.
But there’s also the risk that gTLD registries that are successful in this application round will feel obliged to apply for the plurals of their strings in future rounds for defensive purposes.
The plurals issue also highlights shortcomings in how the new gTLD program was structured.
Why is this happening?
Unless two companies applied for the exact same strings, there are only two ways they could end up in a contention set together.
The first way was if the String Similarity Panel decided that the two strings were too visually similar to be allowed to co-exist, and that didn’t happen in the case of plurals. The panel only decided two things in the end: that I and l are confusingly similar, and that rn and m are confusingly similar.
To date, nobody except the Panel and ICANN knows what the logic behind this decision was, but it appears to be based on a very narrow (though not unreasonable) interpretation of what constitutes visual similarity.
The second way to end up in a contention set was to file a successful String Confusion Objection, or to be on the receiving end of one.
But of the 33 such objections filed, only 11 were filed against plurals, covering only six new gTLD strings in total: .pets, .tours, .webs, .games, .cars, and .kids. There was also an objection to .tvs, due to a clash with the existing ccTLD .tv.
(UPDATE: it appears that only approximately half of the String Similarity Objections filed have actually been revealed to date).
The main reason there weren’t more objections is that only existing registries and new gTLD applicants had standing to file an objection. Nobody else was allowed to.
Applicants were of course disincentivized from filing objections. Winning a String Confusion Objection doesn’t kill off your rival if you’re an applicant, it merely places both applications in a contention set.
Being in a contention set means you’re going to have to pay money to get rid of your competitor, either by negotiating some kind of private deal or by punching it out at auction.
By not filing objections, applicants in singular/plural situations risk looking like they don’t care about user confusion or are blasé about forcing defensive registrations.
(And by defensive registrations, remember here we’re not only talking about trademark owners, we’re talking about every potential future registrant in those gTLDs.)
They do have the slight excuse that they were only given a week or so to file objections after the results of the String Similarity Panel’s deliberations, delayed several times, were revealed.
There’s also the possibility that some of the apparent clashes won’t be as big of a concern in the marketplace due to, for example, registration restrictions.
What happens next?
The GAC is almost certain to issue advice about plurals in the next day or two, having brought the topic up with ICANN’s board of directors earlier this week.
The Business Constituency is also expected to make a few proposals directly to the board during the Public Forum in Beijing, Thursday afternoon local time.
The BC is likely to suggest, for example, that if one String Similarity Objection decision finds that a plural and a singular are confusingly similar, then that ruling should apply to all plural clashes, even if no objection has been filed.
It’s an audacious idea: it would certainly do the trick, but it would require some severe goal-post moving by ICANN at a time when it’s already under fire for pulling last-minute stunts on applicants.
It would also risk capturing fringe cases of strings that look plural but, in the context they are used in everyday language, are not (such as .new and .news).
Without some kind of action, however, ICANN is pretty much guaranteed to attract negative publicity.
Looking like it’s the stooge of the domain name industry, forcing regular registrants to double-buy their domains to the enrichment of registries and registrars, could look bad.