GAC slams registrars over “silly” crime domain moves

ICANN’s Governmental Advisory Committee is seriously annoyed with domain name registrars over what it sees as a failure to take the demands of law enforcement seriously.
The first official day of ICANN’s 42nd public meeting in Dakar, Senegal, was highlighted by a fractious discussion between the GAC and the Generic Names Supporting Organization.
Governments are evidently losing patience with the industry over what they see as incessant foot-dragging and, now, halfhearted bone-throwing.
The US, which is easily the most influential GAC member, was harshly critical of recent efforts by registrars to self-regulate themselves some law enforcement cooperation policies.
US GAC representative Suzanne Radell, saying she was speaking on behalf of the GAC, described a registrar move to start publishing legal service addresses on their web sites at some point in the future as as “paltry”, “mind-boggling” and “silly”.
She heavily implied that if the industry can’t self-regulate, the alternative is governments doing it for them. She was backed up by her counterparts from the UK, Australia and the European Commission.
Registrars have been talking to law enforcement for a few years about how to more effectively work together to prevent crime online.
In October 2009, agencies including the FBI and the UK Serious Organised Crime Agency publish a set of 12 recommendations about how to clean up the industry.
A lot of it was pretty basic stuff like a prohibition on registrar cybersquatting and an obligation to publish an abuse point of contact.
Despite a lot of talking at ICANN meetings, up until a couple of weeks ago there had not been a great deal of tangible progress.
The GNSO passed a resolution, proposed by registrars, to ask for an Issue Report to discuss whether registrars should be forced to post on their sites: a physical address for legal service, the names of key executives, and an abuse contact.
In ICANN’s world, an Issue Report usually precedes a Policy Development Process, which can take a year or more to produce results.
While the GNSO motion passed, it was opposed as inadequate by factions such as the Intellectual Property Constituency, which has close ties to the US government.
As the IPC seemed to correctly predict, the GAC was not amused.
“It is simply impossible for us to write a briefing memo for our political managers to explain why you need a policy to simply put your name on your web site,” Radell told the GNSO Council yesterday. “It is simply mind-boggling that you would require that.”
She pointed out that at a session during the Singapore meeting, registrars had indicated a willingness to address more of the law enforcement demands.
“That’s the context in which we are now coming to you saying this looks pretty paltry and actually it looks a little silly,” she said.
Mason Cole from the registrar constituency denied that they were “roadblocking” law enforcement’s demands, saying that a PDP is the fastest way to create a policy binding on all registrars.
“I think law enforcement was very clear when they made their proposals to us that what they were looking for was binding, enforceable provisions of policy that could be imposed on the registrars,” he said. “A code of conduct or a voluntary method would not arrive at binding, enforceable policy and therefore probably wouldn’t achieve the outcomes that law enforcement representatives were seeking.”
The debate didn’t end yesterday. Radell said she intends to take it up with the ICANN board of directors, presumably at their joint meeting tomorrow.
The implicit threat underlying the GAC’s protest is a legislative one, and Radell and other GAC members made it pretty clear that their governments back home regard domain names as a crucial tool in fighting online crime.

Kroes slams ICANN new gTLD approval

Neelie Kroes, vice-president of the European Commission, has repeated her call for ICANN reform after it rejected governmental advice in its newly approved top-level domains program.
According to a statement from her official spokesperson sent to Intellectual Property Watch, Kroes said the approval of the program “disregard[ed] governmental advice on public policy issues” and “underscores the need for the model to be reformed to remain sustainable”.

The lack of an adequate response on the part of ICANN Board clearly points to some deficiencies in the current functioning of the model. This calls for specific actions in order to remedy the situation.

Kroes seems to believe that governments are entitled to every concession they demand from “multistakeholder” policy-making processes.
According to IP-Watch, she promised to coordinate a response with EU member states and the US.
While the Governmental Advisory Committee had filed about 80 objections to aspects of the Applicant Guidebook earlier this year, ICANN managed to whittle the list down to a small handful.
It refused to remove the requirement for trademark owners to provide proof of use before participating in sunrise periods, and to lower the burden of proof in certain anti-cybersquatting mechanisms.
Governments also don’t seem particularly convinced by ICANN’s decision to approve the program before consulting more deeply with competition authorities over the vertical integration issue.
GAC chair Heather Dryden delivered a more measured statement expressing “disappointment” with the decision yesterday.
EC GAC representative Gerard de Graaf, who’s earning himself a reputation in ICANN as a bit of a firebrand, was less measured in his response, accusing ICANN of potentially putting new gTLD applicants at risk of violating European competition laws.
More at Intellectual Property Watch.

ICANN plans retreat to regroup under new chair

ICANN’s board of directors will hold a surprise, unprecedented workshop or retreat next Saturday, to address the “multiple challenges” it faces.
This announcement just appeared on the ICANN web site:

Board Workshop to Prepare for the Future
Given the change in Board leadership and related changes in Board committee assignments and the multiple challenges facing ICANN, the Board will take advantage of the presence of most of the new Board and hold an informal workshop following the close of the ICANN meeting. The primary focus of the workshop will be the challenges facing ICANN and the coordination of Board and management directions.

The workshop is slated for June 25, the day after both the current meeting in Singapore and the chairmanship of Peter Dengate Thrush ends.
Though his replacement has not been named, it’s quite likely that the board already knows who it has selected to fill PDT’s shoes.
The “multiple challenges” ICANN faces could refer to anything from the launch of the new top-level domains program, its increasingly close relationship with its newly empowered Governmental Advisory Committee, or the threat of more US interference with its functions.
Probably all of the above and more.
In addition, the reference to the “coordination of Board and management directions” may well fuel the scurrilous gossip that all is not well between ICANN’s board and its senior staff.
(via @DNSConundrum)

GAC gives ICANN final warning on new TLDs

As ICANN’s 41st meeting begins in Singapore, the Governmental Advisory Committee is sticking to its guns on a number of its outstanding demands on new top-level domains.
GAC chair Heather Dryden said in a Saturday letter to the ICANN board (pdf) that its concerns relating to controversial string objections, trademark protection, and vertical integration have not been satisfactorily addressed.
She also said that the Applicant Guidebook should be amended to protect the trademarks of the Red Cross, Red Crescent and Olympics movements, and that developing countries should get support.

The GAC would advise the Board that these issues involve important public policy objectives and, until resolved, also risk gTLD applications being made that conflict with applicable law.
…
To this end, and notwithstanding the GAC’s wish to avoid any further delay in the new gTLD process, the GAC would advise the Board to ensure that all remaining public policy concerns are properly addressed and adequately respected before the new gTLD application procedure is finalised.

The GAC and board will meet this afternoon in Singapore to discuss these remaining issues.
The ICANN board is due to meet tomorrow morning to consider approving the Applicant Guidebook and the new gTLD program.

Governments get .xxx wish-list

National governments have been given the chance to block “words of cultural and/or religious significance” from the forthcoming .xxx top-level domain.
ICM Registry has told ICANN’s Governmental Advisory Committee that its members have until the end of July to provide lists of names they want banning from the .xxx namespace.
The GAC is due to meet during ICANN’s meeting in Singapore next Tuesday to discuss an “ICM Registry Request”, which is believed to be said block-list.
Approved strings would be marked as reserved and would resolve to a standard placeholder page. Unlike trademark holders, governments will not be required to pay a fee.
Strings in non-Latin alphabets will not yet be supported, according to ICM, but governments are allowed to submit them anyway, for future reference.
ICM will decide which strings make it to the list, but I can’t see it refusing reasonable requests — pissing off governments probably wouldn’t be a wise move given that some of them already plan to block the whole TLD at their national borders.

How the GAC could derail new TLDs in Singapore

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

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

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

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

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

Controversial TLD blocking still controversial

ICANN and its Governmental Advisory Committee have yet to reach agreement on when and how governments should be able to block top-level domains deemed too controversial to go live.
In its latest advice to ICANN’s board (pdf), the GAC gets a bit sniffy in response to calls for it to be more transparent about how such objections are raised.
The Applicant Guidebook currently requires ICANN to take GAC objections to TLD applications seriously, but only if the GAC reveals which nation(s) objected and why.
The GAC, predictably, seems to think ICANN is trying to undermine its authority. At the very least, it doesn’t like being told what to do:

The GAC advises the Board that the current text in Module 3 that seemingly dictates to the GAC how to develop consensus advice is problematic and should be deleted, as it is inconsistent with the ICANN Bylaws and the GAC’s Operating Principles.

The GAC has offered to refine its procedures to make “consensus advice” a more meaningful term, such as by adopting the UN’s definition of consensus, however.
Some believe that giving the GAC a carte blanche to file objections from its opaque decision-making black box will lead to back-room horse-trading.
You might find a bloc of theocratic nations, for example, refusing to agree to an objection to .nazi (an improbable application, admittedly) unless other governments agree to object to .gay.
And some observers in the west don’t trust their own governments to stand up for their principles and resist this kind of deal-making, particularly when there’s no transparency into the process.
The GAC, meanwhile, does not think the objections process has been sufficiently squared away for it to agree to it. It wrote:

The GAC strongly believes that further discussions are needed between the GAC and the ICANN Board to find a mutually agreed and understandable formulation for the communication of actionable GAC consensus advice regarding proposed new gTLD strings.

ICANN is due to publish the seventh (and “final”) draft of its Guidebook tonight. Its board is due to meet with the GAC next June 19, one day before it plans to vote on the program.

GAC calls for $44,000 new TLDs

ICANN’s Governmental Advisory Committee has asked for the price of top-level domains to be reduced from $185,000 to $44,000 for applicants from developing nations.
The call came in GAC advice released yesterday, just a few days before ICANN plans to publish the seventh and potentially final version of new gTLD program’s Applicant Guidebook.
The document (pdf) shows that ICANN’s board and the GAC have made substantial progress towards resolving their differences, but that several outstanding issues remain.
Support for developing nations has arguably become the biggest hurdle to be leaped before the program can launch, as I reported earlier in the week.
The GAC has now asked ICANN’s board of directors to implement a support program for developing nation applicants “as a matter of urgency”.
There’s an unstated concern that a Guidebook that appears to unfairly favor applicants from rich countries may be rolled up and used as a cosh, by certain countries, to bash ICANN’s international legitimacy.
Specifically, the GAC wants cheaper fees for poorer applicants:

For support to developing countries, the GAC is asking for a fee waiver, which corresponds to 76 percent of the US$ 185,000 application fee requirement. Further, there will be instances where additional costs will be required: for example, for auction, objections, and extended evaluation. In such events, the GAC proposes fee reduction and waivers in these processes/instances where additional costs are required. The GAC would further like to propose an additional waiver of the annual US$ 25,000 fee during the first 3 years of operation.

The 76% reduction, which is in line with suggestions made by ICANN’s applicant support working group (JAS), would see fees of $44,400 for qualified applications, a $140,600 discount.
The call for auction fees to be lowered appears, on the face of it, bizarre. Presumably it refers to fees paid to the auction house, rather than the bids themselves.
Either way, it appears that developing nation applicants could get a distinct advantage in cases of contested strings, if the GAC advice is followed.
The GAC acknowledged ICANN’s worry that gaming – bogus proxy applicants springing up in qualifying nations, for example – could prove problematic, and writes:

On gaming, the GAC welcomes the JAS WG’s recommendation to set up a parallel process to determine eligibility based on the guidelines they have provided. The GAC proposes that a review team be established consisting of ICANN stakeholders experienced and knowledgeable in gTLD processes, developing country needs and gaming patterns. Furthermore, consideration should be given to the imposition of penalties on entities found to be attempting to game processes put in place to support developing country applicants.

The idea of an applicant support initiative being developed in parallel with the Applicant Guidebook – so as to not delay its approval – was first proposed by the JAS back in November.
But even the JAS envisaged that the details of the program would have to be squared away before the first round of new TLD applications are accepted.
Even if the Guidebook can be approved in the absence of a finalized support program, I think ICANN could have a hard time launching its four-month international outreach campaign until it is able to answer the basic question: “How much is this going to cost me?”
While the applicant support issue may not be a deal-breaker when it comes to approving the Guidebook – currently penciled in for June 20 – it could still delay the opening of the application window.
We’ll have a clearer picture if and when ICANN publishes the next version of the Guidebook, expected Monday, May 30 (late Pacific time, I expect).

Could VeriSign be banned from new TLDs?

Governments have proposed stricter background checks on new top-level domain operators that could capture some of the industry’s biggest players.
Top-five registrar Network Solutions and .com manager VeriSign may have reason to be concerned by the latest batch of Governmental Advisory Committee recommendations.
The GAC wants checks on new gTLD applicants expanded to include not only criminal convictions and intellectual property violations but also government orders related to consumer fraud.
The GAC advised ICANN, with my emphasis:

The GAC believes that the categories of law violations that will be considered in the background screening process must be broadened to include court or administrative orders for consumer protection law violations. If an applicant has been subject to a civil court or administrative order for defrauding consumers, it should not be permitted to operate a new gTLD.

This is not new – the GAC has proposed similar provisions before – but it seems to be the only GAC advice on applicant screening that ICANN has not yet adopted, and the GAC is still pushing for it.
Why could VeriSign and NetSol be worried by this?
One reason that springs to mind is that, back in 2003, NetSol was officially barred by the US Federal Trade Commission from the practice known as “domain slamming”.
Domain slamming, you may recall, was one of the dirtiest “marketing” tactics employed by the registrar sector during the early days of competition.
Registrars would send fake invoices with titles such as “Renewal and Transfer Notice” to the addresses of their rivals’ customers, mined from Whois data.
The letters were basically tricks designed to persuade customers ignorant of the domain name lifecycle to transfer their business to the slamming registrar.
Respectable registrars have nothing to do with such practices nowadays, but a decade ago companies including NetSol and Register.com, the two largest registrars at the time, were all over it.
At the time NetSol was carrying out its slamming campaign, it was part of VeriSign. It was spun off into a separate company earlier in 2003, before the FTC entered its order.
The order (pdf) was approved by a DC judge as part of a deal that settled an FTC civil lawsuit, alleging deceptive practices, against the company.
NetSol was not fined and did not admit liability, but it did agree to be permanently enjoined from any further slamming, and had to file compliance notices for some time afterward.
It seems plausible that this could fall into the definition of a “civil court or administrative order for defrauding consumers” that the GAC wants added to the Applicant Guidebook’s background checks.
Whether the GAC’s advice, if implemented by ICANN, would capture NetSol and/or VeriSign is of course a matter of pure speculation at the moment.
I think it’s highly unlikely that ICANN would put something in the Guidebook that banned VeriSign, its single largest source of funding (over a quarter of its revenue) from the new gTLD program.
Sadly, I think I may also be unfairly singling out these two firms here – I’d be surprised if they’re the only companies in the domain name industry with this kind of black mark against their names.
Existing background checks in the Applicant Guidebook governing cybersquatting are already thought to pose potential problems for registrars including eNom and Go Daddy.
UPDATE: It looks like NSI and VeriSign are probably safe.

Can ICANN make a trademark deal with the GAC?

The ICANN board and its Governmental Advisory Committee have yet to reach agreement on how to protect trademarks in new top-level domains, following their Friday teleconference.
The two parties are still stuck on at least four trademark protect issues, according to sources familiar with the talks, and the GAC is due to provide updated written advice to ICANN tomorrow.
Two of the areas still outstanding were previously marked “1A” in ICANN documents, meaning ICANN’s board believed the GAC’s concerns had already been resolved.
Trademark Claims
Details of the proposed Trademark Clearinghouse database and the related Trademark Claims service are still the subject of debate.
Trademark Claims provides an alert to a trademark holder if somebody tries to register their trademark in a new gTLD. The would-be registrant also gets a warning that they may be infringing rights.
As the Applicant Guidebook stands today, new gTLD managers will have to operate the service for the first 60 days of general availability, but the IP lobby and the GAC believe it should be permanent.
The sticking point for ICANN, as I understand it, is that there’s already a commercial market for brand protection services that have some overlap with Trademark Claims.
Several companies, such as MarkMonitor, CSC and Melbourne IT, offer services that alert customers when somebody appears to infringe their brand in a domain name.
If Trademark Claims ever made it into com and other gTLDs, it could effectively monopolize the brand watch services market. The Clearinghouse(s) will be ICANN contractors, after all.
Remember what happened when VeriSign announced its Wait List Service, which promised to effectively take over the existing domain back-order services market? It wasn’t pleasant.
Proof of Use
ICANN has already dropped its requirement for “substantive review”, but it still requires trademark holders to provide “proof of use” before they can add their marks to the Clearinghouse.
Without proof of use, companies will not be able to file Uniform Rapid Suspension complaints or defensively register their brands during new gTLD Sunrise periods.
The IP lobby and the GAC want this requirement scrapped. Any trademark of national effect should be enforceable using these rights protections mechanisms, they say.
One of the justifications is that some trademarks are obtained before the owner actually launches the product or service they pertain to.
If ICANN were to make these changes, there’s a good chance that bulk-registering bogus trademarks in loose jurisdictions may become an effective strategy for gaming the second level in new TLDs.
This has happened before, such as in .eu, and that wasn’t pleasant either.
Brand+Keyword
The current draft of the Applicant Guidebook only allows exact trademark matches into the Trademark Claims and Sunrise mechanisms.
But the the IP crowd (and, again, the GAC) thinks non-exact matches should be allowed in. In the .com space, the majority of cybersquatting nowadays is of course either a brand+keyword or a typo.
Millions are being needlessly spent on UDRP complaints over typos and brand+keyword domains, and the trademark lobby don’t want to risk having to spend even more.
But there could be implementation problems. Both types of variant could throw up lots of false positives during the Claims service, for example, creating conflicts where there aren’t any.
An automated system designed to scare off typosquatters could catch the generic domain goggles.tld as an infringement of Google’s trademark, to use an obvious example.
If brand+keyword Sunrise claims were allowed, holders of trademarks in generic terms could find themselves with a lucrative payday.
Any company that has a trademark on words such as “free”, “live”, “sexy” or anything that could act as a cool prefix, could have a field day during a Sunrise period.
Uniform Rapid Suspension
I understand a sticking point here continues to be the burden of proof required to make a URS case stick.
It’s currently “clear and convincing evidence”, but the IP lobby and the GAC want it reduced to “preponderance of evidence”, a lower burden.
To non-lawyers, the difference may seem trivial. Both standards are used in civil cases in many countries, but one’s a bit strong than the other.
“Preponderance of evidence” basically means “more likely true than not”, whereas “clear and convincing”… well, it’s a bit stronger than that.
The choice of burdens will have repercussions for years to come. Registrants in new gTLDs will know what they’re getting into, but if URS ever makes it into .com…
The Road to Singapore
It’s less than a month before ICANN’s next major meeting, and only a week until it plans to publish the next version of the Applicant Guidebook.
The ICANN board is due to meet face-to-face (and presumably in public) with the GAC on the first day of the meeting, June 19, but it seems that talks will be ongoing behind the scenes until then.
A great deal of progress has been made, but with complex issues still apparently unsettled (and there are more unresolved issues unrelated to trademarks) it’s little wonder that some are now wondering whether ICANN is as confident as it once was that June 20 is Guidebook Approval Day.