The slow crawl to closed generics at ICANN 74

Last Monday saw the 10th anniversary of Reveal Day, the event in London where ICANN officially revealed the 1,930 new gTLD applications submitted earlier in 2012 to a crowd of excited applicants and media.

Dozens of those applications were for closed generics — where the registry operator is the sole registrant, but the string isn’t a trademark — but now, a decade later, the ICANN community still hasn’t decided what to do about that type of gTLD.

At ICANN 74 last week, the Generic Names Supporting Organization and Governmental Advisory Committee inched closer to agreeing the rules of engagement for forthcoming talks on how closed generics should be regulated.

The GNSO’s working group on new gTLDs — known as SubPro — had failed to come to a consensus on whether closed generics should even be allowed, failing even to agree on whether the status quo was the thousand-year-old earlier GNSO policy recommendations that permitted them or the later GAC-influenced ICANN retconning that banned them.

But ever since SubPro delivered its final report, the GAC has been reminding ICANN of its 2013 Beijing communique advice, which stated: “For strings representing generic terms, exclusive registry access should serve a public interest goal.”

At the time, this amounted to an effective ban, but today it’s become an enabler.

ICANN has for the last several months been coaxing the GNSO and the GAC to the negotiating table to help bring the SubPro stalemate into line with the Beijing communique, and the rules of engagement pretty much guarantee that closed generics will be permitted, as least in principle, in the next application round.

GAC chair Manal Ismail told ICANN (pdf) back in April:

discussion should focus on a compromise to allow closed generics only if they serve a public interest goal and that the two “edge outcomes” (i.e. allowing closed generics without restrictions/limitations, and prohibiting closed generics under any circumstance) are unlikely to achieve consensus, and should therefore be considered out of scope for this dialogue.

Remarkably, the GNSO agreed to these terms with little complaint, essentially allowing the GAC to set at least the fundamentals of the policy.

Last week, talks centered on how these bilateral negotiations — or trilateral, as the At-Large Advisory Committee is now also getting a seat at the table — will be proceed.

The rules of engagement were framed by ICANN (pdf) back in March, with the idea that talks would begin before ICANN 74, a deadline that has clearly been missed.

The GNSO convened a small team of members to consider ICANN’s proposals and issued its report (pdf) last week, which now seems to have been agreed upon by the Council.

Both GNSO and GAC are keen that the talks will be facilitated by an independent, non-conflicted, knowledgeable expert, and have conceded that they may have to hire a professional facilitator from outside the community.

That person hasn’t been picked yet, and until he/she has taken their seat no talks are going to happen.

ICANN said a few months ago that it did not expect the closed generics issue to delay the SubPro Operational Design Phase, which is scheduled to wind up in October, but the longer the GAC, GNSO and ICANN dawdle, the more likely that becomes.

All that has to happen is for a group of 14-16 community members to agree on what “public interest” means, and that should be easy, right? Right?

ALAC’s brutal takedown of that “aggressive” ICANN 74 coronavirus waiver

ICANN’s At-Large Advisory Committee has accused ICANN of being aggressive, intimidating and insensitive by demanding attendees at next month’s public meeting in the Netherlands sign a far-reaching legal waiver.

In a remarkable submission to the ICANN board of directors, ALAC says the waiver, which basically amounts to a get-out-of-jail-free card for the Org, leaves a “lasting unpleasant taste in the mouths” of the volunteers who make up the ICANN community.

ALAC wants the board to clarify whether it had any involvement in the drafting of the waiver or in approving it but asks that it “take control of the situation and ensure that this waiver does not endanger both its relationship with the ICANN Community”.

The waiver requires in-person attendees to absolve ICANN of all blame if they catch Covid-19 — or anything else — “even if arising from the negligence or fault of ICANN”. Virtual attendees don’t have to sign it.

ICANN has suggested in a separate FAQ that it may not be worth the pixels it’s written with, which ALAC points out is inconsistent with the plan language of the waiver.

ALAC also includes a list of 10 reasons the waiver is a terrible idea. Here’s a few:

10. It is insensitive to the global community as it can be interpreted as an exportation of U.S.-based litigious culture.

4. This kind of blanket waiver could be unenforceable and, in that case, serves only as intimidation.

3. The waiver infringes on individual rights.

1. It leaves a lasting unpleasant taste in the mouths of participants contributing to ICANN’s multistakeholder model — which is presented as a source of pride and accomplishment to the internet governance community.

The waiver already the subject of a Request for Reconsideration by the heads of registrar Blacknight and the Namibian ccTLD registry, but ALAC’s comprehensive takedown, which has dozens of signatories, arguably carries more weight.

ALAC’s letter can be downloaded here. It’s not been published on ICANN’s correspondence page. Hat tip to Rubens Kuhl for the link.

ICANN “volunteers” want to get paid for sitting through pandemic Zoom calls

It’s often said that ICANN policy-making has become so complex, long-winded and thankless that it’s becoming harder and harder to attract and retain community volunteers, and now some of those community members are calling on ICANN to open its wallet to sweeten the deal.

ICANN could provide volunteers, particularly those who have participated heavily in remote meetings during pandemic travel restrictions, with monetary stipends or free business trips to future ICANN meetings, the At-Large Advisory Committee has said.

In a letter (pdf), ALAC chair Maureen Hilyard, along with members Marita Moll and Joanna Kulesza, ask that ICANN starts measuring the contribution of its volunteers and compensate them according to their work.

“There is a need to recognize and reward the efforts of volunteers who kept the public face of the institution going through 7 virtual public meetings,” they wrote.

“The pandemic ultimately exposed the limited efficiency of the existing volunteer system within the ICANN community. It is clear that the system of incentives currently in effect needs to be adjusted to address challenges of the post-pandemic reality,” the letter says.

ICANN’s thrice-yearly public meetings have been held over Zoom since the start of 2020 due to the coronavirus pandemic. Many community members have not sat in the same room as their peers for over two years.

ICANN 72 last October had the lowest turnout since records began, though this bounced back a little at ICANN 73.

ALAC’s suggestions for incentivizing its members include extending the term of leadership appointments to enable some face-time at future meetings, paying for “one or two trips to future ICANN meetings” and “a retroactive honoraria for those who would have been funded travellers during the period of virtual meetings, considering the fact that they were still incurring costs re: internet connection, electricity, food, etc”

An “honorarium” is a cash payment for services rendered on a voluntary basis. Basically, ALAC seems to be asking for travel expenses that were not incurred to be reimbursed retroactively regardless.

ICANN already has a program for reimbursing community members, such as those on metered connections, who incur extra connectivity charges during ICANN meetings, but it has regardless saved millions of dollars on funded travel since the pandemic started.

The letter goes on to say “volunteer work by definition is work without pay or compensation” but that “forms of monetary or in-kind compensation are possible”. These could include stipends, “symbolic gifts” and reimbursements.

Before you start getting outraged about the potential for high-priced IP lawyers and well-paid registry VPs putting their hands in ICANN’s pocket, ALAC is asking ICANN to distinguish between genuine volunteers and those who are paid for, or get a direct business benefit from, participating in community work.

ALAC defines volunteers as “individuals who commit time and effort to the work of ICANN with no personal connection to the domain name industry and who pay their own costs of participation, engagement and commitment to this work”.

That’s a rare thing in some segments of the community, but more common in the At-Large community.

Many of the issues raised in the letter were also discussed at the ALAC’s session with the ICANN board earlier this month.

ICANN trying to water down its transparency obligations

ICANN? Trying to be less transparent? Surely not!

The Org has been accused by some of its community members of trying to shirk its transparency obligations with proposed changes to its Documentary Information Disclosure Policy.

The changes would give ICANN “superpowers” to deny DIDP requests, and to deny them without explanation, according to inputs to a recently closed public comment period.

The DIDP is ICANN’s equivalent of a Freedom of Information Act, allowing community members to request documentation that would not be published during the normal course of business.

It’s often used, though certainly not exclusively so, by lawyers as a form of discovery before they escalate their beefs to ICANN accountability mechanisms or litigation.

It already contains broad carve-outs that enable ICANN to refuse disclosure if it considers the requested info too sensitive for the public’s eyes. These are the Defined Conditions for Nondisclosure, and they are used frequently enough that most DIDPs don’t reveal any new information.

The proposed new DIDP broadens these nondisclosure conditions further, to the extent that some commentators believe it would allow ICANN to deny basically any request for information. New text allows ICANN to refuse a request for:

Materials, including but not limited to, trade secrets, commercial and financial information, confidential business information, and internal policies and procedures, the disclosure of which could materially harm ICANN’s financial or business interests or the commercial interests of its stakeholders who have those interests.

The Registries Stakeholder Group noted that this is “broader” than the current DIDP, while the At-Large Advisory Committee said (pdf) it “essentially grants ICANN the right to refuse any and all requests”.

ALAC wrote that “rejecting a request because it includes commercial or financial information or documents an internal policy makes a mockery of this DIDP policy”.

Jeff Reberry of drop-catch registrar TurnCommerce concurred (pdf), accusing ICANN of trying to grant itself “superpowers” and stating:

Extremely generic terms such as “confidential business information” and “commercial information” were added. Frankly, this could mean anything and everything! Thus, ICANN has now inserted a catch-all provision allowing it to disclose nothing.

Other comments noted that the proposed changes dilute ICANN’s responsibility to explain itself when it refuses to release information.

Text requiring ICANN to “provide a written statement to the requestor identifying the reasons for the denial” has been deleted from the proposed new policy.

A collection of six lawyers, all prolific DIDP users, put their names to a comment (pdf) stating that “the change results in less transparency than the current DIDP”.

The lawyers point out that requests that are denied without explanation would likely lead to confusion and consequently increased use of ICANN’s accountability mechanisms, such as Requests for Reconsideration. They wrote:

Simply stated, the Revised Policy allows ICANN to obscure its decision-making and will ultimately cause disputes between ICANN and the Internet community — the complete opposite of the “accountable and transparent” and “open and transparent processes” required by ICANN’s Bylaws.

One change that didn’t get much attention in the public comments, but which certainly leapt out to me, concerns the turnaround time for DIDP responses.

Currently, the DIDP states that ICANN “will provide a response to the DIDP request within 30 calendar days from receipt of the request.”

In practice, ICANN treats this obligation like one might treat a tax return or a college essay — it almost provides its response exactly 30 days after it receives a request, at the last possible moment.

The revised DIDP gives ICANN the new ability to extend this deadline for another 30 days, and I don’t think it’s unreasonable to assume, given past behavior, that ICANN will try to exploit this power whenever it’s advantageous to do so:

In the event that ICANN org cannot complete its response within that 30-calendar-day time frame, ICANN org will inform the requestor by email as to when a response will be provided, which shall not be longer than an additional 30 calendar days, and explain the reasons necessary for the extension of time to respond.

The predictably Orwellian irony of all of the above proposed changes is that they come in response to a community review called the Cross-Community Working Group on Enhancing ICANN Accountability Work Stream 2 (WS2), which produced recommendations designed to enhance accountability and transparency.

Whether they are adopted as-is or further revised to address community concerns is up to the ICANN board of directors, which is of course advised by the staff lawyers who drafted the proposed revisions.

ICANN staff’s summary of the seven comments submitted during the public comment period is due next week.

Community calls on ICANN to cut staff spending

ICANN should look internally to cut costs before swinging the scythe at the volunteer community.
That’s a key theme to emerge from many comments filed by the community last week on ICANN’s fiscal 2019 budget, which sees spending on staff increase even as revenue stagnates and cuts are made in other key areas.
ICANN said in January that it would have to cut $5 million from its budget for the year beginning July 1, 2018, largely due to a massive downwards revision in how many new gTLD domains it expects the industry to process.
At the same time, the organization said it will increase its payroll by $7.3 million, up to $76.8 million, with headcount swelling to 425 by the end of the fiscal year and staff receiving on average a 2% pay rise.
In comments filed on the budget, many community members questioned whether this growth can be justified.
Among the most diplomatic objections came from the GNSO Council, which said:

In principle, the GNSO Council believes that growth of staff numbers should only occur under explicit justification and replacements due to staff attrition should always occur with tight scrutiny; especially in times of stagnate funding levels.

The Council added that it is not convinced that the proposed budget funds the policy work it needs to do over the coming year.
The Registrars Stakeholder Group noted the increased headcount with concern and said:

Given the overall industry environment where organizations are being asked to do more with less, we are not convinced these additional positions are needed… The RrSG is not yet calling for cuts to ICANN Staff, we believe the organization should strive to maintain headcount at FY17 Actual year-end levels.

The RrSG shared the GNSO Council’s concern that policy work, ICANN’s raison d’etre, may suffer under the proposed budget.
The At-Large Advisory Committee said it “does not support the direction taken in this budget”, adding:

Specifically we see an increase in staff headcount and personnel costs while services to the community have been brutally cut. ICANN’s credibility rests upon the multistakeholder model, and cuts that jeopardize that model should not be made unless there are no alternatives and without due recognition of the impact.
…
Staff increases may well be justified, but we must do so we a real regard to costs and benefits, and these must be effectively communicated to the community

ALAC is concerned that the budget appears to cut funding to many projects that see ICANN reach out to, and fund participation by, non-industry potential community members.
Calling for “fiscal prudence”, the Intellectual Property Constituency said it “encourages ICANN to take a hard look at personnel costs and the use of outside professional services consultants.”
The IPC is also worried that ICANN may have underestimated the costs of its contractual compliance programs.
The Non-Commercial Stakeholders Group had some strong words:

The organisation’s headcount, and personnel costs, cannot continue to grow. We feel strongly that the proposal to grow headcount by 25 [Full-Time Employees] to 425 FTE in a year where revenue has stagnated cannot be justified.
…
With 73% of the overall budget now being spent on staff and professional services, there is an urgent need to see this spend decrease over time… there is a need to stop the growth in the size of the staff, and to review staff salaries, bonuses, and fringe benefits.

NCSG added that ICANN could perhaps reduce costs by relocating some positions from its high-cost Los Angeles headquarters to the “global south”, where the cost of living is more modest.
The ccNSO Strategic and Operational Planning Standing Committee was the only commentator, that I could find, to straight-up call for a freeze in staff pay rises. While also suggesting moving staff to less costly parts of the globe, it said:

The SOPC – as well as many other community stakeholders – seem to agree that ICANN staff are paid well enough, and sometimes even above market average. Considering the current DNS industry trends and forecasts, tougher action to further limit or even abolish the annual rise in compensation would send a strong positive signal to the community.

It’s been suggested that, when asked to find areas to cut, ICANN department heads prioritized retaining their own staff, which is why we’re seeing mainly cuts to community funding.
I’ve only summarized the comments filed by formal ICANN structures here. Other individuals and organizations filing comments in their own capacity expressed similar views.
I was unable to find a comment explicitly supporting increased staffing costs. Some groups, such as the Registries Stakeholder Group, did not address the issue directly.
While each commentator has their own reasons for wanting to protect the corner of the budget they tap into most often, it’s a rare moment when every segment of the community (commercial and non-commercial, domain industry and IP interests) seem to be on pretty much the same page on an issue.

Sanchez beats Greenberg to ICANN board seat

Mexican intellectual property lawyer León Felipe Sánchez Ambía has been selected to become a member of the ICANN board of directors by the At-Large, comfortably beating his opponent in a poll this weekend.
Sanchez took 13 votes (65%) to 10-year At-Large veteran Alan Greenberg’s 7, in a vote of At-Large Advisory Committee members and Regional At Large Organization chairs.
He’ll take the seat due to be vacated in November by Rinalia Abdul Rahim, who will leave the board after one three-year term.
He’s currently head of the IP practice and a partner at Fulton & Fulton in Mexico City. According to his bio:

He is co-lead for the Mexican chapter of Creative Commons and advisor to different Government bodies that include the Digital Strategy Coordination Office of the Mexican Presidency, the Special Commission on Digital Agenda and IT of the Mexican House of Representatives and the Science and Technology Commission of the Mexican Senate.
He drafted the Internet Users Rights Protection Act for Mexico and has been very active on issues like Anti-Counterfeit Trade Agreement (ACTA), Stop Online Privacy Act (SOPA), Trans-Pacific Partnership Agreement (TPPA) and other local initiatives of the same kind, always advocating to defend users’ and creators’ rights in order to achieve a balance between regulation and freedom.

Sanchez is certainly the less experienced of the two short-listed men when it comes to length of involvement in the ICANN community, but he’s a member of the ALAC and is deeply involved as a volunteer in ICANN accountability work following the IANA transition.
The At-Large was recently criticized in a report (pdf) for the perception that it is “controlled by a handful of ICANN veterans who rotate between the different leadership positions”.
Sanchez’s appointment to the board may have an effect on that perception.
The selection of another (white, male) North American to the board, replacing an Asian woman, will of course create more pressure to increase geographic and gender diversity on the other groups within ICANN that select board members.
A written Q&A between the two candidates and At-Large members can be found here.

ALAC throws spanner in ICANN accountability discussions

The At-Large Advisory Committee has yanked backing for a key ICANN accountability proposal.
The ALAC, on of ICANN’s policy advisory groups, this afternoon voted unanimously “to withdraw support for the Membership model” at ICANN 54 in Dublin.
The Membership model is a proposal out of the Cross Community Working Group on Accountability (CCWG) that would change ICANN’s legal structure to one of formal membership, where a Sole Member gets legal rights to enforce accountability over the ICANN board of directors.
The model has some fierce support in the CCWG, but over the last few days in Dublin the group has started to explore the possibility of a “Designator” model instead.
That would be a weaker accountability model than one based on membership, but stronger than the “Multistakeholder Enforcement Mechanism” proposed by the ICANN board.
ALAC chair Alan Greenberg said in a statement to the CCWG mailing list:

In its formal response to the CCWG-Accountability proposal issued in August 2015, the ALAC said that it could support the model being proposed, but preferred something far less complex and lighter-weight, and that we saw no need for the level of enforceability that the proposal provided. Moreover, the ALAC had specific concerns with the budget veto and the apparent lack of participation of perhaps a majority of AC/SOs.
In light of the reconsideration of a designator model by the CCWG, along with the recommendations of the Saturday morning break-out sessions, the ALAC felt that a revised statement was in order. Accordingly we decided, by a unanimous vote of the 14 ALAC members present (with 1 not present), to withdraw support for the Membership model.
I want to make it clear that this is not a “red line” decision. Should a Membership model become one that is generally advocated by the CCWG, and supported by a supermajority of Board directors (who ultimately MUST support any changes that they will be called upon to approve, else they would be in violation of their fiduciary duty), then the ALAC reserves its right to support such a model.

The move revises the battle lines in the ongoing accountability debate. It’s no longer a simple case of CCWG versus ICANN board.
Dublin is a crunch time for the accountability proposals.
The clock is ticking — if the ICANN community cannot agree on a consensus proposal soon it risks delaying the transition of the IANA functions from US government oversight and possibly killing off the transition altogether.
Yet, while the CCWG is making steady progress cleaning up remaining areas of disagreement, the differences between itself and the board are still as sharp as ever.

At-Large votes to object to .health gTLD bids, but Afilias gets a pass

ICANN’s At-Large Advisory Committee has voted to object to three of the four applications for the .health gTLD.

Afilias, which is one of the applicants, will not receive an ALAC objection. By a single vote, ALAC decided not to go after its application.
Fourteen of the 15-member ALAC panel voted on Tuesday. For DotHealth LLC’s bid, the yes/no/abstain vote was 8/3/3; dot Health Ltd’s was 10/3/1, and Donuts’ was 10/3/1.
Afilias managed to get one extra “no” vote (its result was 7/4/3). so with only 50% of the voters voting “yes”, the motion to object failed.
The ALAC did not vote on .健康, which means “healthy” or “wellness” in Chinese, despite earlier indications that it would.
The identities of the voters and the way they voted does not appear to have been revealed.
The objections will be of the Community or Limited Public Interest variety, and paid for by ICANN.
Healthcare-related gTLDs are already the most controversial of those being applied for.
Each .health bid received four Governmental Advisory Committee Early Warnings late last year, and earlier this week the Independent Objector’s list of 24 objections was dominated by medically oriented strings.

ALAC likely to object to five .health gTLDs

ICANN’s At-Large Advisory Committee is planning to formally object to four applications for the .health gTLD and one for .健康, which means “.healthy” in Chinese.
Bids backed by Afilias, Donuts, Famous Four Media and Straat Investments (the investment vehicle of .CO Internet CEO Juan Diego Calle), as well as China’s StableTone, are affected.
Dev Anand Teelucksingh, chair of the ALAC’s new gTLD review group, posted the following to an ALAC mailing list this weekend:

Objection statements on community grounds will be drafted for the applications for .health given that the four tests for community objection grounds were passed. The gTLD RG will attempt to put together the objection statements to the applications for .health in time for RALO [Regional At-Large Organization] review around 22 February 2013.

The ALAC is able to file objections to new gTLD bids, using funds provided by ICANN, on only the Community or Limited Public Interest grounds.
Of the four strings before it (.health, .nyc, .patagonia and .amazon) the ALAC review group decided that only a Community objection against .health met its criteria.
These are the only confirmed ALAC objections to date.
The ALAC had received a request to object from the International Medical Informatics Association, which said:

These five proposals are seen as problematic by the global health community for the following reasons:

• None of the applicants demonstrates that the name will be operated in the public interest.
• None of the applicants demonstrates adequate consumer protection mechanisms.
• All of the applicants are commercial in nature and none represent the health community.

Two governments — France and Mali — both expressed concerns about .health on similar grounds by filing Early Warnings last November.
ICANN’s deadline for filing objections is March 13.

Satellite policy expert named ICANN director

ICANN has named Olga Madruga-Forti, an Argentinian telecoms policy expert, as the newest member of its board of directors.
Selected by this year’s Nominating Committee, Madruga-Forti will take over from R. Ramaraj when his second term ends at the Toronto meeting this October.
According to the biography provided by ICANN, she has extensive experience of telecommunications policy, particularly related to satellite, in both public and private sectors.
She currently works for ARSAT in Buenes Aires as international counsel. She’s previously worked for Iridium, Loral and the US Federal Communications Commission.
ICANN pointed out that she represents telcos at the International Telecommunications Union, a relevant data point, perhaps, given the WCIT conference coming up in December.
Madruga-Forti ticks one of the Latin-American boxes on the ICANN board.
NomCom has also reappointed two other directors for second terms on the board: Gonzalo Navarro (Latin-America) and the reliably contrarian George Sadowsky (North America).
New leadership members of three ICANN supporting organizations have also been selected by NomCom.
Jennifer Wolfe of the intellectual property law firm WolfeSBMC, which counts new gTLD applicants Microsoft, Procter & Gamble and Kraft Foods among its clients, has been appointed to GNSO Council.
I believe she’s destined to replace Carlos Dionisio Aguirre when his term is up later this year.
Canadian Alan Greenberg and Frenchman Jean-Jacques Subrenat have been reappointed to the At-Large Advisory Committee.
Mary Wong, who currently sits on the GNSO Council representing non-commercial stakeholders, has been appointed to the ccNSO Council.
The full biographies of all 2012 NomCom appointees can be found here.