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ICANN in a sticky spot as GNSO overrules GAC on block-lists

Kevin Murphy, November 20, 2013, Domain Policy

ICANN may have to decide which of its babies it loves the most — the GNSO or the GAC — after receiving conflicting marching orders on a controversial rights protection issue.
Essentially, the GAC has previously told ICANN to protect a bunch of acronyms representing international organizations — and ICANN did — but the GNSO today told ICANN to un-protect them.
The GNSO Council this afternoon passed a resolution to the effect that the acronyms of IGOs and international non-governmental organizations (INGOs) should not be blocked in new gTLDs.
This conflicts directly with the Governmental Advisory Committee’s longstanding advice, which states that IGOs should have their names and acronyms reserved in all new gTLDs.
The Council’s resolution was passed unanimously, enjoying the support of registries, registrars, non-commercial users, intellectual property interests… everyone.
It came at the end of a Policy Development Process that kicked off in 2011 after the GAC demanded that the International Olympic Committee and Red Cross/Red Crescent should have their names protected.
The PDP working group’s remit was later expanded to address new demands from the GAC, along with a UN-led coalition of IGOs, to also protect IGO and INGO names and acronyms.
The outcome of the PDP, which had most of its recommendations approved by the GNSO Council today, was to give the GAC most of what it wanted — but not everything.
The exact matches of the full IOC, RC/RC, IGO and INGO names should now become permanently ineligible for delegation as gTLDs. The same strings will also be eligible for the Trademark Claims service at the second level.
But, crucially, the GNSO Council has voted to not protect the acronyms of these organizations. Part of the lengthy resolution — apparently the longest the Council ever voted on — reads:

At the Top Level, Acronyms of the RCRC, IOC, IGOs and INGOs under consideration in this PDP shall not be considered as “Strings Ineligible for Delegation”; and
At the Second level, Acronyms of the RCRC, IOC, IGOs and INGO under consideration in this PDP shall not be withheld from registration. For the current round of New gTLDs, the temporary protections extended to the acronyms subject to this recommendation shall be removed from the Reserved Names List in Specification 5 of the New gTLD Registry Agreement.

The list of reserved names in Spec 5, which all new gTLD registries must block from launch, can be found here. The GNSO has basically told ICANN to remove the acronyms from it.
This means hundreds of strings like “who” and “idea” (which would have been reserved for the World Health Organization and the Institute for Development and Electoral Assistance respectively) should now become available to new gTLD registries to sell or otherwise allocate.
I say “should”, because the Council’s resolution still needs to be approved by the ICANN board before it becomes a full Consensus Policy, and to do so the board will have to reject (or reinterpret) the GAC’s advice.
The GAC, as of its last formal Communique, seemed to be of the opinion that it was going to receive all the protections that it asked for.
It has told ICANN for the last year that “IGOs are in an objectively different category to other rights holders” and that “their identifiers (both their names and their acronyms) need preventative protection”
It said in its advice from the Durban meeting (pdf) three months ago:

The GAC understands that the ICANN Board, further to its previous assurances, is prepared to fully implement GAC advice; an outstanding matter to be finalized is the practical and effective implementation of the permanent preventative protection of IGO acronyms at the second level.

The key word here seems to be “preventative”. Under the resolution passed by the GNSO Council today, IGO acronyms would be allowed to enter the Trademark Clearinghouse and participate in the Trademark Claims service, but Claims does not prevent anyone from registering a matching domain.
It’s looking like the ICANN board is going to have to make a call — does it accept the GAC advice, or does it accept the unanimous consensus position of the GNSO?
Given that much of ICANN 48 here in Buenos Aires this week has been a saccharine love-in for the “multistakeholder process”, it’s difficult to imagine a scenario in which the GNSO Council does not win out.

dotShabaka Diary — Day 3

Kevin Murphy, August 14, 2013, Domain Registries

Here’s the third installment of dotShabaka Registry’s journal, charting its progress towards becoming one of the first new gTLDs to go live, written by general manager Yasmin Omer.

Wednesday 14 August 2013
Our Pre-Delegation Testing (PDT) continues. The latest ICANN published timeframe shows 30 days duration to 30 August. Previous communications indicated it would take 14 days plus rectification (if required) and the PDT ‘clock’ is counting down 21 days. When will it end?
We now have access to the TMDB and have received the initial Registration Token. We have run some internal tests and it all looks OK. So what next? We will attend the TMDB webinar today and hopefully the TMDB integration and testing process will be defined. Stay tuned.
According to ICANN we will receive a ‘new Registry’ Welcome Pack soon. I suspect we are ‘ahead of the curve’ in terms of the timing of this pack and other applicants will receive this information once the Agreement is signed.
In other news, ICANN have published IOC, Red Cross and Red Crescent reserved lists in multiple languages, but the IGO list has not been defined. Is ICANN going to publish a list of countries (in six official United Nations languages) or is every Registry going to generate their own list with their own rules? I guess we’ll have to wait and see.

Read previous and future diary entries here.

Plural gTLDs could be a casualty as ICANN accepts big chunk of GAC advice

ICANN has accepted nine pieces of Governmental Advisory Committee advice pertaining to new gTLDs, essentially killing off two applications and putting question marks over many more.
Notably, the question of whether plural and singular versions of the same string should be allowed to coexist has been reopened for debate, affecting as many as 98 applications.
ICANN’s New gTLD Program Committee, which carries board powers but does not include directors with conflicts of interest, this week passed a resolution that addresses a good chunk of the GAC’s Beijing communique.
It does not discuss any of the amorphous “safeguard” advice from the document, which was subject to a recently closed public comment period and is likely to take much longer to resolve.
By far the line item with the broadest immediate impact is this:

The NGPC accepts this advice and will consider whether to allow singular and plural versions of the same string.

That’s right folks, singular and plural gTLDs (eg, .car and .cars) may not be allowed to coexist after all.
Using a broad interpretation (that treats .new and .news as clashes, for example), 98 applications could be affected by this decision.
Singular vs plural is a contentious issue with some strongly held religious views. Whether you come down on one side or the other depends largely on how you see new gTLDs being used in future.
Proponents of coexistence see a future of 30,000 gTLDs being used as direct navigation and search tools, while opponents worry about the risk of freeloading plural registries making a killing from unnecessary defensive registrations.
The NGPC did not say how the debate would be moved forward, but I’d be surprised if it didn’t involved the broader community through public comments or meetings in Durban next month.
Ding dong…?
Two line items appear to put the final nails in the coffins of two new gTLD applications: DotConnectAfrica’s .africa and GCCIX WLL’s .gcc.
Both clash with the names of geographic regions (.gcc is for Gulf Cooperation Council, a name often associated with nations in the Arabian/Persian Gulf) and received the GAC’s strongest possible form of objection.
In both cases, the NGPC said the applications “will not be approved” and invited the applicants to withdraw.
However, it gave both applicants the right to appeal using “ICANN’s accountability mechanisms”.
Islamic strings on life support
Some governments in the GAC had taken issue with the applications for strings such as .islam and .halal, and the NGPC said it “stands ready to enter into dialogue with the GAC on this matter”.
That’s the Applicant Guidebook-mandated response when the GAC cannot reach a consensus that an application should be killed off.
Amazon among geo strings delayed
As expected, the NGPC decided to work with the GAC’s extended timetable for the consideration of 19 applications whose chosen strings clash with geographic names such as .thai and .persiangulf.
Basically, the GAC asked for more time to discuss them.
In response, ICANN will not delay Initial Evaluation for these applications, but it will not sign contracts with the applicants until the GAC has issued its final advice.
The list includes two big trademarks: retail giant Amazon and the clothing brand Patagonia.
Both will have to wait until at least Durban to discover their fate.
The list also includes .wine and .vin, because some in the wine industry have been kicking up a stink about the protection of special geographic identifiers (eg Champagne, Bordeaux) at the second-level.
Weasel words on community objections
There’s one piece of advice that the NGPC said it has “accepted” but which it clearly has not.
The GAC had said this:

The GAC advises the Board that in those cases where a community, which is clearly impacted by a set of new gTLD applications in contention, has expressed a collective and clear opinion on those applications, such opinion should be duly taken into account, together with all other relevant information.

I think any reasonable interpretation of this item would require ICANN or somebody else to make a subjective judgement call on which applications should win certain contention sets.
To my mind, the advice captures contested strings such as .book (where publishers hate the idea of Amazon running it as a closed generic) and .music (where the music industry favors a restricted registration policy).
But ICANN, always reluctant to have to pick winners and losers, seems to have chosen to interpret the advice somewhat differently. In its response, it states:

The NGPC accepts this advice. Criterion 4 for the Community Priority Evaluation process takes into account “community support and/or opposition to the application” in determining whether to award priority to a community application in a contention set. (Note however that if a contention set is not resolved by the applicants or through a community priority evaluation then ICANN will utilize an auction as the objective method for resolving the contention.)

I don’t think this covers the GAC’s advice at all, and I think the NGPC knows it.
As the parenthetical comment says, communities’ views are only taken into account if an applicant has filed a formal “Community” bid and chooses to resolve its contention set with a Community Priority Evaluation.
To return to the above examples, this may well capture .music, where at least one applicant intends to go the CPE route, but it does not capture .book, where there are no Community applications.
There are 33 remaining Community applications in 29 contention sets.
Will the GAC accept the NGPC’s response as a proper implementation of its advice? If it’s paying attention and feels strongly enough about the issue, my guess is probably not.
More special favors for the Olympics
The International Olympic Committee holds extraordinary power over governments, which has resulted in the GAC repeatedly humiliating itself by acting an Olympic lobbyist before the ICANN board.
In the Beijing communique, it asked ICANN to make sure that the temporary temporary protections granted to Olympics and Red Cross are made permanent in the Applicant Guidebook.
Prior to April, the Registry Agreement in the Guidebook said that the protected strings “shall be initially reserved”, but this language has been removed in the current version of the RA.
The NGPC said that this was due to the GAC’s advice. Box ticked.
But here’s the kicker: the protections will still be subject to a Generic Names Supporting Organization Policy Development Process.
In other words, the discussion is not over. The rest of the ICANN community will get their say and ICANN will try to reconcile what the GNSO decides with what the GAC wants at a later date.
While “accepting” the GAC’s advice, it’s actually proposing something of a compromise. The NGPC said:

Until such time as the GNSO approves recommendations in the PDP and the Board adopts them, the NGPC’s resolutions protecting IOC/RCRC names will remain in place. Should the GNSO submit any recommendations on this topic, the NGPC will confer with the GAC prior to taking action on any such recommendations.

New gTLD registries will not be able to argue in future that their contracts only require them to “initially” protect the Olympic and Red Cross strings, but at the same time the GNSO as a whole gets a say in whether permanent protections are warranted.
It seems like a pretty nice compromise proposal from ICANN — particularly given the problems it’s been having with the GNSO recently — but I doubt the GAC will see it that way.
Other stuff
There were two other items:

  • The GAC had advised that no new gTLD contracts should be approved until the 2013 Registrar Accreditation Agreement is finalized. ICANN agreed. It’s already built into the timetable.
  • The GAC wanted its existing views taken into account in the current, ongoing, formative discussions about a replacement service for Whois. That’s already happening.

In summary…
…it’s a pretty sensible response from the NGPC, with the exception of the weaselly response to the “community views” advice.
Taken as a whole, it’s notable for its respect for other stakeholders and processes, which is admirable.
Even in the case of .africa and .gcc, which I firmly believed would be dead today, it’s given the applicants the opportunity to go through the appropriate appeals channels.
The GAC, it seems, doesn’t even get the last word with its kiss of death.

Global standards group highlights silliness of GAC’s IGO demands

Kevin Murphy, May 14, 2013, Domain Policy

The International Organization for Standardization, known as ISO, doesn’t want to have its acronym blocked in new gTLDs by the International Sugar Organization.
ISO has told ICANN in a letter that demands for special favors coming from intergovernmental organizations, via the Governmental Advisory Committee, should be rejected.
Secretary general Rob Steele wrote:

We have very strong concerns with the GAC proposal, and firmly oppose any such block of the acronym “ISO.”

To implement a block on the term “ISO” (requiring its release be permitted by the International Sugar Organization) disregards the longstanding rights and important mission of the International Organization for Standardization. To be frank, this would be unacceptable.

please be assured that the International Organization for Standardization is prepared to take all necessary steps if its well-known short name is blocked on behalf of another organization.

For several months the GAC has argued that IGOs are “objectively different category to other rights holders, warranting special protection from ICANN” in new gTLDs.
Just like the “unique” Olympics and Red Cross were in 2011.
The GAC proposes that that any IGO that qualifies for a .int address (it’s a number in the hundreds) should have its name and acronym blocked by default at the second level in every new gTLD.
But ICANN pointed that this would be unfair on the hundreds (thousands?) of other legitimate uses of those acronyms. It gave several examples.
The GAC in response said that the IGOs would be able to grant consent for their acronyms to be unblocked for use by others, but this opened up a whole other can of implementation worms (as the GAC is wont to do).
ICANN director Chris Disspain of AuDA said in Beijing:

Who at each IGO would make a decision about providing consent? How long would each IGO have to provide consent? Would no reply be equivalent to consent? What criteria would be used to decide whether to give consent or not? Who would draft that criteria? Would the criteria be consistent across all IGOs or would consent simply be granted at the whim of an IGO?

In the GAC’s Beijing communique, it seemed to acknowledge this problem. It said:

The GAC is mindful of outstanding implementation issues and commits to actively working with IGOs, the Board, and ICANN Staff to find a workable and timely way forward.

The GAC insists, however, that no new gTLDs should be allowed to launch until the IGO protections are in place.
Given the amount of other work created for ICANN by the Beijing communique, I suspect that the IGO discussions will focus on implementation detail, rather than the principle.
But the principle is important. IGOs are not typically victims of pernicious cybersquatting. If they deserve special protections, then why don’t trademark owners that are cybersquatted on a daily basis?
ISO standardizes all kinds of stuff in dozens of sectors. In the domain name space, it’s probably best known for providing ICANN with ISO 3166-1 alpha-2, the authoritative list of two-letter strings that may be delegated as ccTLDs.
The International Sugar Organization is very important too, probably, if you’re in the sugar business.
Wikipedia gives it a single paragraph, Google ranks the International Society of Organbuilders higher on a search for “ISO”, and its web site suggests it doesn’t do much business online.
Does it need better brand protection than Microsoft or Marriott or Facebook or Fox? Is anyone going to want to cybersquat the International Sugar Organization, really?
If it does deserve that extra layer of protection, should that right trump the more-famous ISO’s right to register domains matching its own brand?

ICANN headed for GAC fight over IGO pleading

Kevin Murphy, April 10, 2013, Domain Policy

ICANN may be heading for a bust-up with its Governmental Advisory Committee over the issue of a special domain name block-list for intergovernmental organizations.
The board of directors this week indicated at a meeting with the GAC in Beijing that it’s prepared to deny the GAC’s official demand for IGO protection at second level in all new gTLDs.
The GAC wants the names and acronyms of hundreds of IGOs — any organization that qualifies for a .int domain name — blocked, so that nobody would be able to register them, in every new gTLD.
It would, for example, give the European Forest Institute the exclusive rights to efi.tld in all future gTLDs.
Other well-known cybersquatting targets such as the European Organisation for Astronomical Research in the Southern Hemisphere (ESO), the North Atlantic Salmon Conservation Organization (NASCO) and the International Conference on the Great Lakes Region of Africa (ICGLR), would also be protected.
Some potentially very useful operational domains, such as a who.tld, would be banned (because of the World Health Organization).
Clearly, the GAC’s demands are a solution looking for a problem, giving special protection to many organizations that simply don’t need it, potentially at the expense of legitimate users.
The GAC had indicated that clashes with legitimate uses could be handled in a similar way to country names will be controlled in new gTLDs, where registries have to request special permission from the governments concerned to release the domains to others.
This would open a whole can of worms, however, the implications of which were outlined in an April 1 letter from ICANN board chair Steve Crocker to the GAC.
The board’s case was also succinctly articulated by director Chris Disspain during the board’s meeting with the GAC on Tuesday, and worth quoting in full. Disspain said:

This would mean that the Church of England would require the approval of the Council of Europe to register coe.church. It means the government of Canada would require the approval of the Andean Community to register can.anything. It means the International Standards Organization would require the approval of the International Sugar Organization to register iso.anything.
Even if this is what you intended in principle, the implementation of this advice is extremely problematic.
Who at each IGO would make a decision about providing consent? How long would each IGO have to provide consent? Would no reply be equivalent to consent? What criteria would be used to decide whether to give consent or not? Who would draft that criteria? Would the criteria be consistent across all IGOs or would consent simply be granted at the whim of an IGO.
The board believes that all these issues make it extremely difficult, if not impossible, to accept the advice as is.
Rather than rejecting this advice we seek an acknowledgement from the GAC in its communique that there are issues to be worked through, and we seek agreement with the GAC that they will work with the board and staff on these issues from now until Durban [this July] when the board will make a decision?

Disspain added that despite a board decision in November to set the ball rolling on IGO protections, it most certainly has not already decided to grant the GAC’s request.
This is an excellent development in GAC-board relations, in my view.
Rather than quaking at GAC advice, or rush-approving it to meet new gTLD program deadlines, the board is schooling the GAC about the obvious flaws in its position, and inviting it to think about the problems in a bit more depth, hearing alternate views, before lobbing advice grenades.
It’s a stark contrast to its treatment of the GAC’s 2011 advice on International Olympic Committee and Red Cross/Red Crescent names, where the board agreed to special protections in order to get the new gTLD program out of the door, creating thousands of extra person-hours of work for the GNSO.
When the GAC issued its IOC/RC/RC advice, it assured ICANN that the organizations concerned were special cases.
Others warned — presciently, as it turned out — that such protections would be merely the top of a slippery slope that would lead to a much longer list of protected names.
An effect of ICANN’s strong position now is that the slope is less steep and less slippery.
What happens next with the IGO names depends on the GAC’s communique from the ongoing Beijing meeting.
If it decides to engage with ICANN to sort out the problems it’s trying to create, they have until Durban to come to a deal. If it stands firm, ICANN may have to invoke the part of its bylaws that allows it to overrule the GAC, which has only done once before, when it approved .xxx.

ICANN seeks more power over new gTLD registries

Kevin Murphy, February 12, 2013, Domain 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?

The 100% Porn-Free Top 10 DI Stories You Should Have Been Reading In 2012.

Kevin Murphy, January 2, 2013, Gossip

Happy New Year everyone.
It’s time for the now-traditional round-up of the last year’s biggest DI stories, but this year it’s going to be a little different.
Having perused the traffic logs for the last 12 months, it’s pretty clear that the Top 10 stories for 2012 would be about 90% porn-related.
The list is all “YouPorn this” and “.xxx that”, with dishonorable mentions for stories about “Hot Czech girls” and photos of Go Daddy girls’ bottoms.
It’s sad, but perhaps inevitable, that sex-related stories seem to appeal to a wider readership than the more chaste variety. Residual search traffic also seems to linger for longer with these pieces.
Traffic logs are a rubbish way to gauge the importance of a story.
So I’ve ignored all that guff in this year’s rundown. With apologies to Manwin and ICM Registry, here’s the hand-picked 100% Porn-Free Top 10* DI Stories You Should Have Been Reading In 2012.
(* More than 10)
The New gTLD Program Splutters Into Life
Our Word Of The Year for 2012 is “glitch”.
With hindsight, ICANN chairman Steve Crocker is probably regretting saying in a New Year email to colleagues, “I am confident the program is well constructed and will run smoothly.”
And with hindsight, I’m regretting not being more skeptical in my January 3 article, ICANN chair says new gTLD program “will run smoothly”.
A week later, ICANN started to accept new gTLD applications (ICANN opens new gTLD program) and the TLD Application System at first did appear to run more or less smoothly, but it didn’t last long.
By early February the first “glitches” were emerging (New gTLD applications briefly vanish after glitch) and by April the TAS had completely imploded.
As the application window was just about to close April 30, ICANN shut down TAS, saying that a “technical glitch” had led to “unusual behavior” (ICANN extends new gTLD application window after technical glitch)
It turned out that a bug in ICANN’s custom-made TAS software had allowed some applicants to see other applicants’ applications (It’s worse than you thought: TAS security bug leaked new gTLD applicant data)
Over 100 applicants were affected (TAS bug hit over 100 new gTLD applicants) but the damage appears so far to have been limited to ICANN’s reputation and the cost to applicants of over a month’s delay (TAS reopens after humiliating 40 days) while the bug was being fixed.
Wow. How Many Applications?
By the time Reveal Day rolled around in June, tensions were high.
Moderating a panel discussion during the live London event (Big Reveal confirmed for London), I got my hands on a print-out of the list of gTLD applications half an hour before it was released publicly.
In hard copy, it was thick enough to choke a horse.
There were 1,930 applications in total (It’s Reveal Day and there are 1,930 new gTLD bids), largely made up of English keywords and Western dot-brands, with not as much representation from the developing world or non-Latin scripts as ICANN had hoped.
While we’d long expected big portfolio bids from the likes of Donuts (Donuts applies for 307 (yes, 307) gTLDs), Uniregistry (Schilling applies for “scores” of new gTLDs) and TLDH, Amazon and Google were the surprise big applicants, facing off on several prime keywords.
When it became clear that both companies were planning to keep huge swathes of real estate private, using the dot-brand model with dictionary words (Most new gTLDs could be closed shops), a controversy was set in motion that has not yet been resolved (Industry objection forming to Google and Amazon’s keyword gTLD land grab).
Digital Archery misses the target
By far the year’s weirdest rolling story was the creation, deployment, failure and death of Digital Archery, ICANN’s whacky way of splitting new gTLD applications into evaluation batches.
Applicants would have to take their chances with network latency, clicking a button on a web page and hoping ICANN’s servers received the ping as close to a target time as possible, as we revealed in March (Here’s how new gTLD batching will work).
The system was branded “Digital Archery” (ICANN approves “digital archery” gTLD batching). It later transpired that the ICANN board was warned that it looked absurd (Digital archery looked “silly” but had “minor risks”, ICANN board was told).
Several companies quickly seized on the opportunity to make a bit of cash from the process, leveraging years of drop-catching experience (Pool.com offers $25k gTLD digital archery service).
But opposition to the system quickly grew, with several companies openly wondering whether Digital Archery was any better than the illegal lottery it was supposed to replace.
(See Revolt brewing over digital archery and ARI: digital archery is a lottery and we can prove it, Is this why digital archery is borked?
Despite beginning Digital Archery, by June the process had been suspended (Digital archery suspended, surely doomed) and finally killed off (Digital archery is dead, but uncertainties remain).
Roll up! Roll up!
Archery was replaced by a lottery, in one of the most surprising about-faces of the year.
Apparently prize draws were not illegal under Californian law after all, clearing the way for a widely lauded chance-based solution to the prioritization problem (New gTLD winners will be decided by lottery after all).
And what do you know… it worked. At least, nobody has yet publicly complained about the New gTLD Prioritization Draw, which took place in LA a couple of weeks ago. (Amazon, Uniregistry, Verisign… here’s who won the new gTLDs lottery)
Conflicts Over Conflicts Of Interest
The repercussions of Peter Dengate Thrush’s 2011 move from ICANN’s chair to a top job at Top Level Domain Holdings continued in 2012, with paranoia over conflicts of interest rife.
This was the year in which ICANN made serious efforts to avoid even the perception of conflicts of interest on its board of directors (Seven ICANN directors have new gTLD conflicts) by starting up a New gTLD Program Committee stacked with non-conflicted individuals.
Despite this move, other questions were raised over the course of the year about the relationship between directors on the committee and new gTLD applicants (Another conflicted ICANN director? and Ombudsman asks DCA to simmer down after .africa conflict of interest complaint).
CEO Rod Beckstrom even used his penultimate ICANN meeting keynote to take a pop at his fellow directors (Beckstrom slams his own board over conflicts) over the poorly perceived ethics environment.
But it didn’t take long before many community members started to question the value of excluding industry expertise from the new gTLD committee, a view given weight by the fact that one of the committee’s first decisions was approving Digital Archery.
To the disappointment of many, even recently promoted new gTLD program overseer Kurt Pritz fell victim to the paranoia over clashes, tendering his resignation in November after fessing up to a personal conflict of interest (Pritz’s conflict of interest was with ARI).
To cap it all, concern about conflicts led to one GNSO Council member accidentally torpedoing his own client’s interests (albeit temporarily) when he abstained from a November vote. (GNSO gives thumbs down to Olympic trademark protections in shock vote).
The Death of the GNSO
Worries about the decreasing relevance of the Generic Names Supporting Organization were aired a few times in 2012, pretty much every time the brand protection side of the house locked horns with non-commercial interests.
At the Costa Rica meeting in March, all of the unnecessary but politically valuable work that the GNSO had put into giving the Red Cross and International Olympic Committee special brand protection seemed to come to naught due to Non-Commercial User Constituency shenanigans (Olympic showdown spells doom for ICANN, film at 11).
While the storm was very much of the teacup variety (The Olympics and the death of the GNSO, part deux), more recent apparent attempts by ICANN executives and the GAC to do end-runs around the GNSO have started to raise many of the same concerns.
Too sluggish to react to the industry? Too complicated to function? Interests too entrenched for compromise? The “death of the GNSO” is a meme that is stronger than ever as we head into 2013.
Change at the top
In June, the industry mourned the departure of Bob Recstrum, Twitter’s premier ICANN spoof account.
In related news, Rod Beckstrom grew a beard and fucked off on his yacht or something, two million dollars the richer, leaving ICANN with interregnum leadership awaiting his successor.
After spending six months filtering through 100 applicants (ICANN gets 100 applicants for CEO job) for the lucrative if stressful position, ICANN’s board settled on the industry outsider Fadi Chehade, whose special skill is consensus building.
Chehade impressed on his first day by cleverly hiring two of the unsuccessful CEO candidates as special advisers, as he explained in an interview with DI (Fadi Chehade starts at ICANN today, immediately shakes up senior management)
As well as wowing the ICANN community by saying all the right things in his inaugural keynote, he has also since managed to successfully win over critics of ICANN in national governments and the International Telecommunications Union (Unsnubbed? ICANN brass get tickets to ITU curtain-raiser), demonstrating his chops when it comes to big picture stuff.
But the recent outcry over two secretive meetings relating to the Trademark Clearinghouse — along with more delays to the new gTLD program — suggests that the honeymoon period for Chehade is probably already over.
Verisign gets whacked by Commerce
The US government dealt a serious blow to Verisign at the back end of the year, capping its .com registry fee at current rates — barring highly improbably eventualities — for the next six years (Verisign loses right to increase .com prices).
While ICANN took a reputational hit — having approved a .com contract (ICANN gives Verisign’s .com contract the nod_ with 7% annual price increases — it got to keep the extra fees Verisign will pay it (ICANN to get $8 million more from new .com deal).
And the rest…
ICANN staffer linked to hacked intelligence firm — ICANN’s Eastern European VP Veni Markowski was fingered as an informant for an American intelligence firm, which described him as a “billionaire oligarch” with ties to organized crime, by the Bulgarian media. The reality, in my view, was rather less exciting.
Refunds uncertain as .nxt says sorry for cancellation — Many members of the industry were left fuming when the .nxt conference on new gTLDs, scheduled for London last summer, was cancelled twice and the organizers had trouble refunding registration fees.
Company claims ownership of 482 new gTLDs — ICANN’s past returned to haunt it in the second half of the year, as two new gTLD applicants from the 2000 round emerged to sue the organization for not returning its calls for the last 12 years.
O.co loses 61% of its traffic to O.com — Overstock’s ambitious rebranding around a .co domain failed to pay off. This story is a particular favorite citation of .com domain investor Rick Schwartz.
.radio gTLD applicant joins the GAC — The European Broadcasting Union applied for .radio, competing against three other applicants, then joined the Governmental Advisory Committee to give it special lobbying access to the GAC and its special gTLD objection powers (GAC gets more power to block controversial gTLDs). Conflict of interest?
“Whistleblower” accuses Nominet of trying to dodge freedom of information law — In what has to be the biggest case of disgruntled former employee in years, Nominet’s former policy chief spilled the beans about the company’s alleged plot to sell out .uk to the UK government in order to keep it out of the hands of domainers.
Newbie domain registrant discovers Whois, has Twitter meltdown — I deleted the quoted tweets after receiving a handful of insane emails from the newbie in question, so you’ll have to use your imagination.
ICANN’s secret “penthouse-level” domain program — Because April Fools Day stories are always fun to write.
NTIA throws a bomb, cancels IANA contract RFP — The US government’s other big surprise of the year was making ICANN kneel and beg for the renewal of its critical IANA contract. This story, incidentally, was the most-trafficked of 2012.
Apart from all the porn, that is.

If the GNSO is irrelevant, ICANN itself is at risk [Guest Post]

Stéphane Van Gelder, December 1, 2012, Domain Policy

The weeks since October’s Toronto ICANN meeting have seen some extraordinary (and, if you care about the multi-stakeholder model, rather worrying), activity.
First, there were the two by-invitation-only meetings organised in November at ICANN CEO Fadi Chehadé’s behest to iron out the Trademark Clearinghouse (TMCH).
The TMCH is one of the Rights Protection Mechanisms (RPMs) being put in place to protect people with prior rights such as trademarks from the risk of seeing them hijacked as a spate of new gTLDs come online.
The first meeting in Brussels served as a warning sign that policy developed by the many might be renegotiated at the last minute by a few. The follow-up meeting in Los Angeles seemed to confirm this.
Two groups, the Intellectual Property Constituency (IPC) and the Business Constituency (BC), met with the CEO to discuss changing the TMCH scheme. And although others were allowed in the room, they were clearly told not to tell the outside world about the details of the discussions.
Chehadé came out of the meeting with a strawman proposal for changes to the TMCH that includes changes suggested by the IPC and the BC. Changes that, depending upon which side of the table you’re sitting on, look either very much like policy changes or harmless implementation tweaks.
Making the GNSO irrelevant
So perhaps ICANN leadership should be given the benefit of the doubt. Clearly Chehadé is trying to balance the (legitimate) needs of the IP community to defend their existing rights with the (necessary) requirement to uphold the multi stakeholder policy development model.
But then the ICANN Board took another swipe at the model.
It decided to provide specific protection for the International Olympic Committee (IOC), the Red Cross (RC), and other Intergovernmental Organisations (IGOs) in the new gTLD program. This means that gTLD registries will have to add lengthy lists of protected terms to the “exclusion zone” of domain names that cannot be registered in their TLDs.
RPMs and the IOC/RC and IGO processes have all been worked on by the Generic Names Supporting Organisation (GNSO). ICANN’s policy making body for gTLDs groups together all interested parties, from internet users to registries, in a true multi-stakeholder environment.
It is the epitome of the ICANN model: rule-based, hard to understand, at times slow or indecisive, so reliant on pro-bono volunteer commitment that crucial details are sometimes overlooked… But ultimately fair: everyone has a say in the final decision, not just those with the most money or the loudest voice.
The original new gTLD program policy came from the GNSO. The program’s RPMs were then worked on for months by GNSO groups. The GNSO currently has a group working on the IOC/RC issue and is starting work on IGO policy development.
But neither Chehadé, in the TMCH situation, or the Board with the IOC/RC and IGO protections, can be bothered to wait.
So they’ve waded in, making what look very much like top-down decisions, and defending them with a soupcon of hypocrisy by saying it’s for the common good. Yet on the very day the GNSO Chair was writing to the Board to provide an update on the GNSO’s IOC/RC/IGO related work, the Board’s new gTLD committee was passing resolutions side-stepping that work.
The next day, on November 27, 2012, new gTLD committee Chair Cherine Chalaby wrote:

The Committee’s 26 November 2012 resolution is consistent with its 13 September 2012 resolution and approves temporary restrictions in the first round of new gTLDs for registration of RCRC and IOC names at the second level which will be in place until such a time as a policy is adopted that may required further action on the part of the Board.

Continuing on the same line, Chalaby added:

The second resolution provides for interim protection of names which qualify for .int registration and, for IGOs which request such special protection from ICANN by 28 February 2013. (…) The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

A soothing “sleep on” message to both the community and the GNSO that the bottom-up policy development process is safe and sound, as long as no-one minds ICANN leadership cutting across it and making the crucial decisions.
Red alert!
Chehadé’s drive to get personally involved and help solve issues is paved with good intentions. In the real world, i.e. the one most of us live and work in, a hands-on approach by the boss generally has few downsides. But in the ICANN microverse, it is fraught with danger.
So is the Board deciding that it knows better than its community and cannot afford to wait for them to “get it”?
These latest episodes should have alarm bells ringing on the executive floor of ICANN Towers.
ICANN only works if it is truly about all interested parties getting together and working through due process to reach consensus decisions. Yes, this process is sometimes lengthy and extremely frustrating. But it is what sets ICANN apart from other governance organisations and make it so well suited to the internet’s warp-speed evolution.
Turn your back on it, act like there are valid circumstances which call for this ideology to be pushed aside, and you may as well hand the technical coordination of the internet’s naming and numbering system to the UN. Simple as that.
This is a guest post written by Stéphane Van Gelder, strategy director for NetNames. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.

ICANN massively expands the reserved domains list for new gTLDs

Kevin Murphy, November 28, 2012, Domain Policy

ICANN’s board of directors has given the Olympic and Red Cross brands – along with those of a batch of intergovernmental organizations — special second-level protection in new gTLDs.
Its new gTLD program committee this week passed two resolutions, one protecting the International Olympic Committee and Red Cross/Red Crescent, the other protecting IGOs that qualify for .int domain names.
New gTLD registries launching next year and beyond will now be obliged to block a list of names and acronyms several hundred names longer than previously expected.
Domain names including who.tld and reg.tld will be out of bounds for the foreseeable future.
In a letter to the GNSO, committee chair Cherine Chalaby said:

The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

The first ICANN resolution preempts an expected GNSO Council resolution on the Olympics and Red Cross — which got borked earlier this month — while the second is based on Governmental Advisory Committee advice coming out of the Toronto meeting in October.
The resolutions were not expected until January, after the GNSO Council had come to an agreement, but I’m guessing the World Conference on International Telecommunications, taking place in Dubai next week, lit a fire under ICANN’s collective bottoms.
The full text of the resolutions will not be published until tomorrow, but the affected organizations have already been given the heads-up, judging by the quotes in an ICANN press release today.
The press release also noted that the protections are being brought in before the usual policy-making has taken place because it would be too hard to introduce them at a later date:

In approving the resolutions, the New gTLD Program Committee made it clear it was taking a conservative approach, noting that restrictions on second-level registration can be lifted at a later time depending on the scope of the GNSO policy recommendations approved by the Board.

The new Reserved Names List will presumably be added to the Applicant Guidebook at some point in the not too distant future.
Meanwhile, Wikipedia has a list of organizations with .int domain names, which may prove a useful, though non-comprehensive, guide to some of the strings on the forthcoming list.

GNSO gives thumbs down to Olympic trademark protections in shock vote

Kevin Murphy, November 15, 2012, Domain Policy

ICANN’s GNSO Council voted against providing special brand protection to the Olympics and Red Cross today, in a shock vote that swung on a trademark lawyer’s conflict of interest.
A motion before the Council today would have temporarily protected the words “Olympic”, “Red Cross” and “Red Crescent” in various languages in all newly approved gTLDs.
The protections would be at the second level, in addition to the top-level blocks already in place.
The motion merely needed to secure a simple majority in both of the GNSO houses to pass, but it failed to do so despite having the unanimous support of registries and registrars.
Remarkably, the motion secured 100% support in the contracted parties house (registries and registrars) but only managed to scrape 46.2% of the vote in the non-contracted parties house, just one vote shy of a majority.
While the Non-Commercial Users Constituency predictably voted against the extra protections, it was an unnecessary abstention by an Intellectual Property Constituency representative that made the difference.
Trademark lawyer Brian Winterfeldt explained that he was abstaining — which essentially counts as a “no” vote — because the American Red Cross is his client so he had a conflict of interest.
The second IPC representative, newcomer Petter Rindforth, accidentally abstained also, before changing his vote to “yes” after it was explained that abstention was not an official constituency position.
Another member of the non-contracted parties house was absent from the meeting, potentially costing the motion another vote.
Half an hour later, when the Council had switched its attention to other business, Winterfeldt realized that his conflict of interest didn’t actually bar him from voting and asked if he could switch to a “yes”, kicking off a lengthy procedural debate about whether the vote should be re-opened.
In-at-the-deep-end Council chair Jonathan Robinson, in his first full meeting since taking over from Stephane Van Gelder last month, eventually concluded that because some councilors had already left the meeting it would be inappropriate to reopen the vote.
So the decision stands, for now at least: no special protections at the second level for the Olympics or Red Cross.
The Council is due to meet again December 20, when it may choose to revisit the issue. If it does, proponents of the motion had better hope the NCUC doesn’t request a deferral.
If today’s “no” vote is still in effect January 31, the ICANN board of directors may feel obliged to overrule the GNSO in order to approve the second-level reservations.
This wouldn’t look great for the vaunted bottom-up decision-making process, but the board is under a lot of pressure from the Governmental Advisory Committee to protect these two organizations, and it has already said that it favors temporary protections.
I suspect that the damage done today is not to the Olympics or Red Cross, which will probably get what they’ve been lobbying for for the last few years, but to the GNSO Council, which seems to have kicked off its new year on a divisive and embarrassingly bureaucratic note.