Governments dig in over new TLD objections

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.
ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.
The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.
Yeah, it’s getting a bit complex.
In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.
This is a preliminary analysis.
Controversial TLDs
The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.
ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.
The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.
The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.
The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.
Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.
Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.
Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”
This seems unworkable.
Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.
The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.
If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?
If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.
Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.
This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.
Trademark Protection
Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.
Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?
From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.
Registrar-Registry Cross Ownership
ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.
Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.
But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs
Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.
But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.
The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.
The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.
The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.
Law Enforcement
The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.
This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.
Geographic Names
If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.
The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.
If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.
More Delays?
The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.
If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.
It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.
But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.
The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.

New TLDs have a timetable again

ICANN has approved a timeline for the introduction of new top-level domains again. Barring surprises, it looks like this could be the final one.
These are the key dates in the timetable passed by the ICANN board of directors at its meeting here in San Francisco on Friday:
March 25 – Governmental Advisory Committee feedback on the San Francisco consultation due to be provided to ICANN for consideration.
April 15 – ICANN will publish the relevant edited extracts of the final Applicant Guidebook for 30 days of public comment.
May 20 – ICANN’s final consultation with the GAC. This will be held via teleconference and it’s not clear yet if observers will be allowed on the call.
May 30 – ICANN publishes the final Applicant Guidebook.
June 20 – The ICANN board of directors will meet on the first day of the Singapore public meeting to (presumably) approve the Guidebook.
June 22 – Large quantities of free alcohol consumed at the Singapore meeting’s Gala event.
This timetable seems to give plenty of time for the Guidebook’s remaining kinks to be worked out, and there seems to be considerable resolve in ICANN’s leadership to get this thing put to bed by Singapore, which will be Peter Dengate Thrush’s last as ICANN chair.

There are still a couple of questions remaining, however. It’s not yet clear when the first-round application window will open and therefore when the first new TLDs will be available.
ICANN has always said that the 60 to 90-day window would open after ICANN has concluded four months of marketing and global outreach – it wants to be certain that nobody can complain that they lost their brand because didn’t know the new gTLD program existed.
It’s been stated that the plan was to kick the outreach program off shortly after the Guidebook is approved, but there was some speculation in the halls at the San Francisco meeting last week suggesting that it could actually coincide with its publication.
If that happens, that would knock just a few weeks off the wait before applications open, so it’s nothing to get particularly excited about.
It seems we’re looking at the application window opening in early November at the latest, which suggests to me ICANN may opt for a 90-day window, in order to avoid having the deadline for applying falling during or just after the holiday period.
With the least-controversial applications expected to take at least eight months to process, we’re looking at October 2012 before the first new TLDs are delegated to the root.
With sunrise periods, landrush periods, marketing and so on, I doubt any new TLDs will be generally available before the first quarter of 2013. Single-user “.brands” could go into use sooner.
And of course, if somebody takes ICANN to court and successfully enjoins it, this may all wind up looking woefully optimistic.

How ICANN overruled governments on .xxx

In approving the .xxx top-level domain, ICANN has for the first time explicitly overruled the wishes of international governments, as represented by its Governmental Advisory Committee.
In its rationale (pdf) for the decision, ICANN explains why it chose to disregard the GAC’s views.
There are two pieces of GAC advice that have been quite important. One was delivered in Wellington in 2007, the other was delivered yesterday
The Wellington GAC Communique noted that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”
That was repeated during a terse, 10-minute “bylaws consultation” on .xxx yesterday, during which the the GAC also said “there is no active support of the GAC for the introduction of a .xxx TLD”.
ICANN chose to reject (kinda) both of those pieces of advice, on the basis of a quite literal interpretation — that GAC support was unnecessary and the advice was not specific enough:

There is no contradiction with GAC advice on this item. Active support of the GAC is not a required criteria in the 2004 sTLD round. Further, this is not advice from the GAC either to delegate .XXX or to not delegate .XXX, and therefore the decision to delegate .XXX is not inconsistent with this advice.

Unfortunately, this gives pretty much no clue to how the board will treat minority GAC positions in future, such as when some governments object to new gTLDs.
But companies planning to apply for potentially controversial TLDs can take heart from other parts of the rationale.
For example, the board did not buy the notion that .xxx should be rejected because some countries are likely to block it.
Saudi Arabia has already said it intends to filter out .xxx domains.
The GAC was worried that this kind of TLD blocking would lead to a fragmented root and competing national naming systems, but ICANN wasn’t so sure. The rationale reads:

The issue of governments (or any other entity) blocking or filtering access to a specific TLD is not unique to the issue of the .XXX sTLD. Such blocking and filtering exists today. While we agree that blocking of TLDs is generally undesirable, if some blocking of the .XXX sTLD does occur there’s no evidence the result will be different from the blocking that already occurs.

It’s been noted that some Muslim countries, for example, block access to Israel’s .il domain.
One director, George Sadowsky, dissented from the majority view, as is his wont. In a lengthy statement, he named stability as one reason he voted against .xxx.
He said “the future of the unified DNS could be at stake” and “could encourage moves to break the cohesiveness and uniqueness of the DNS”.
He drew a distinction between the filtering that goes on already and filtering that would come about as a direct result of an ICANN board action.
He was, however, in the minority, which makes proposed TLDs such a .gay seem likely to get less of a rough ride in future.

ICANN staff grilled over new TLDs

ICANN’s San Francisco meeting kicked off this morning with staff members responsible for the new top-level domains program answering – and trying to answer – stakeholder questions.
The short version: it’s still not clear what the end result of San Francisco will be when it comes to new TLDs.
The big deal this week is ICANN’s ongoing consultation with its Governmental Advisory Committee, which remains the biggest hurdle before ICANN can approve the program.
GNSO stakeholders wanted to know the current state of play with this consultation, and how close ICANN is to wrapping up policy development and launching the new TLD program.
A key question is whether the two days of talks the board has scheduled for this week count as the final GAC consultation called for in ICANN’s bylaws.
If they are, the board and the GAC could wrap up their negotiations before the board meets on Friday, and the program is one step closer to approval. ICANN wants this.
If they’re not, we could be looking at further GAC talks stretching on into the weeks or months between now and the Singapore meeting in June. The GAC seems to want this.
ICANN senior vice president Kurt Pritz said that the board and GAC met for one hour yesterday, but that they still have not agreed on the “bylaws” designation.
He said that the board “has a sense of urgency” about approving the program as soon as possible, and that the GAC is newly “energized”.
Staff were asked, by VeriSign’s Chuck Gomes and Minds + Machines’ Antony Van Couvering, whether such a consultation is needed at all.
After all, as has been discussed in articles on CircleID and .nxt recently, there’s no mention in the ICANN bylaws of a “consultation” per se.
Deputy general counsel Dan Halloran said that this is an area still open for discussion, but indicated that reaching common ground on the substantive issues is currently the priority.
There seems to be a feeling that the current talks represent not only a necessary step in approving new TLDs, but also a landmark piece of cooperation in the sphere of internet governance.
On the substantive issues, ICANN has currently marked each of the 80 points the GAC has made with the designation 1a, 1b or 2, depending on whether agreement has been reached, only reached in principle, or has not been reached at all.
The focus this week is going to be on the 23 “2s”. These are the issues, Pritz said, where ICANN has determined that to agree with the GAC would run contrary to the GNSO’s consensus positions.
Philip Corwin of the Internet Commerce Association, which represents domain investors, wanted to know whether “1a” topics are currently locked – the ICA is unhappy with a 1a concession ICANN has made regarding the Uniform Rapid Suspension policy.
The answer from staff was basically yes — a 1a is where ICANN’s board and staff think “we’re done”, Pritz said.
The plan for the rest of the week is to hold open discussions on the new TLD process on Monday and Wednesday, with corresponding bilateral GAC-board sessions on Tuesday and Thursday.
Stakeholder groups have been invited to make statements before and to inform these sessions.

ICANN to skip stakeholders for more GAC talks

ICANN stakeholder groups will miss out on their usual formal sit-down with the board of directors at the San Francisco meeting next week, due to talks between the board and governments.
ICANN has confirmed the touted second day of Governmental Advisory Committee consultations, centering on new top-level domains and .xxx, for next Tuesday.
Tuesdays at ICANN meetings are informally referred to as Constituency Day, where the various interest groups that make up the “bottom” of ICANN’s policy-making process meet up.
Usually, the board moves between these meetings, gathering feedback on policy issues from stakeholders such as registrars, registries, ISPs, IP owners and non-commercial users.
According to some attendees, that won’t happen in San Francisco.
ICANN staff will still attend the constituency sessions, but the GAC consultation will take up the board’s undivided attention.
It make perfect sense, of course. There are only so many hours in the day, only so many days in the week, and ICANN is eager to put work on the new TLD program to bed as soon as possible.
But that logic is unlikely to prevent grumblings from some stakeholders.

Is .gay now safe from government blocking?

What are the chances of a .gay top-level domain being added to the internet, given the current state of play in the talks between ICANN and governments?
I think they’re looking pretty good.
While the details have yet to be ironed out, it’s looking like ICANN’s favored method for handling government objections to so-called “sensitive strings” would probably let a .gay slip through.
As you may recall, the ICANN Governmental Advisory Committee had proposed a mechanism for objecting to TLD strings that said in part:

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.

The ICANN board would then be able to treat this advice in the same way its bylaws allow it to treat any GAC advice – it would be free to disregard it, if it had a good reason.
ICANN has seemingly agreed that this process is fair, but has added its own caveats. This is what chair Peter Dengate Thrush just forwarded to GAC chair Heather Dryden (pdf):

A procedure for GAC review will be incorporated into the new gTLD process. The GAC may review the posted applications and provide advice to the ICANN Board. As discussed with the GAC, such advice would be provided within the 45-day period after posting of applications, with documentation according to accountability and transparency principles including whether the advice from the GAC is supported by a consensus of GAC members (which should include identification of the governments raising/supporting the objection).

While it’s certainly a concession to the GAC’s request to be allowed to provide advice about potentially objectionable strings, I think the addition of “transparency principles” is important.
The GAC’s original proposal would have maintained the black-box approach to advice-making that currently characterizes its role in ICANN. It reaches consensus in private.
For example, all we know about the GAC’s opposition to the .xxx TLD application is that “several governments” object to it. We don’t (officially, at least) know which governments.
Complicating matters, the GAC believes that referring to this minority position in one of its official Communiques makes it consensus “advice” on .xxx that ICANN must consider.
If ICANN’s new transparency requirements had been applied to the .xxx application, it would make the call it has to make next week – whether to reject the GAC advice and approve .xxx – much more well-informed.
Returning to .gay, if the GAC is going to be obliged to name (and, depending on your perspective, shame) the governments that officially object to the string, it leaves a lot less room for back-room horse-trading leading to amorphous “consensus” positions.
Let’s say, for example, that Saudi Arabia, Iran and the United Arab Emirates (three countries where the death penalty still applies to active homosexuals) were to object to the string.
How much support would that move receive from governments in less repressive parts of the world?
Which relatively liberal Western governments would be willing to put their names to a document that essentially implements homophobia in the DNS? Very few, I would imagine.
For such an objection to gather broader support there would have to be a real risk of “root fragmentation” – the threat that the Saudis et al could decide that, rather than blocking .gay, it would be easier to divorce themselves from ICANN entirely and set up their own competing DNS root.
But let’s remember that by the time .gay is live and available to block, there’s a good chance that .xxx – equally opposed by several nations – will have been in the root for a couple of years. The practice of gTLD blocking at the national level may well be the norm by that point.
So, let’s now say that the GAC’s advice, stating an objection to .gay and naming the limited number of objectors, is forwarded to the ICANN board. What happens then?
Absent some kind of objective scoring system, directors would each have to make a subjective decision. Do I want to give TLD veto power to a narrow, homogeneous subset of nations? Do I want lowest common denominator morality to dictate global internet policy?
I’d like to think that, faced with such a choice, most ICANN directors would vote with their consciences. I hope I’m not being naïve.
This is a scenario I’m exploring hypothetically here, of course, but these are the kinds of decisions that may have to be made for real over the coming few years.

ICANN takes firm stance on new TLD delays

ICANN wants to draw a line under its talks with its Governmental Advisory Committee on new top-level domains at the San Francisco meeting next week.
In a letter to his GAC counterpart (pdf), ICANN chair Peter Dengate Thrush said that he thinks the San Francisco talks should be “final”.
He said that ICANN has agreed to compromise with the GAC wholly or partially on all but 23 of its 80 recommendations for the program.
He also said that these remaining issues should be the focus of the two days the board has set aside to consult with the GAC in San Francisco.

a narrowed focus in San Francisco on the issues that are still in contention would be a best use of the Board and GAC’s time during the two days of consultations, and should represent the final stages in our required consultation.

That appears to contrast with the GAC’s position, expressed in Brussels last week, that the SF talks should not be given the final “bylaws consultation” designation.
Nobody, possibly not even ICANN and the GAC, knows what a “bylaws consultation” consists of, but everybody knows that it is the last thing that needs to happen before the ICANN board can adopt a policy that overrules the formal advice of governments.
ICANN has already officially resolved that the consultation should happen March 17, but GAC chair Heather Dryden objected to that date in an email sent during Brussels.
According to Kieren McCarthy, who has apparently seen the email or parts of it, Dryden wrote:

We believe there is now insufficient time to receive a final written response to our advice from the Board – as well as then analyse and prepare an adequate consensus response from GAC members – to reach resolution of enough outstanding issues such that we could reasonably enter any meaningful bylaws consultation on 17 March in San Francisco.

To delay the consultation would very likely delay the next draft of the Applicant Guidebook, currently set for April 14, and thus the launch of the program itself.
It was not clear from Brussels, but ICANN’s position that March 17 is the date now appears to be firm. The just-published agenda for the March 18 board meeting carries this line item:

Outcome of Bylaw Consultation with the GAC on the new gTLD Program

Things that have not happened generally do not have an “outcome”.
Cybersquatting is the major issue still unresolved. Fifteen of the the 23 areas where the board still disagrees with the GAC deal with trademark protection in new TLDs.
ICANN has agreed to balance the Uniform Rapid Suspension policy – which comes into play following clear-cut cases of cybersquatting – somewhat more in favor of trademark holders.
The amount of money, time and effort required to make a URS case will be reduced, and it’s likely that registrants will have their domains locked by default if they do not respond to the complaint.
Complainants will also get first right of refusal to take over a domain whose registration has been suspended due to a URS proceeding.
But ICANN plans to deny the GAC’s requests for a “loser pays” model and a number of other URS-related tweaks.
The GAC had also advised that the Trademark Clearinghouse database should be expanded to include trademark+keyword registrations. This would allow Kodak, to use the GAC’s example, to prevent cybersquatters from registering not only kodak.tld but also kodakcameras.tld.
Dengate Thrush’s letter says that this “remains an area for discussion”, but ICANN still currently plans to diverge from GAC advice.

Governments react to Brussels new TLDs meeting

ICANN’s Governmental Advisory Committee has issued an official Communique following its meeting with the ICANN board on new top-level domains, which wrapped up on Wednesday.
While acknowledging the talks were “sometimes challenging”, the GAC said (pdf) the consultation was useful and should be continued during the San Francisco meeting later this month.
There’s not a great deal to work with in the Communique if you like reading tea leaves, but these paragraphs go some way to negate a view I expressed yesterday that the GAC does not want ICANN to overrule its recommendations. With my emphasis:

While fully respecting the Board’s right not to accept GAC advice, the GAC is obliged to ensure that existing rights, the rule of law and the security and protection of citizens, consumers and businesses, and the principle of national sovereignty for governments are all maintained within the new environment, as well as respect for legitimate interests and sensitivities regarding terms with national, cultural, geographic and religious significance. The GAC is committed to taking whatever time is required to achieving these essential public policy objectives.
The GAC envisions that discussion of the issues involved will continue up to and through the ICANN/GAC meeting in San Francisco in March

That’s not incredibly encouraging language if you’re impatiently awaiting the launch of the new TLDs program and were banking on ICANN putting the GAC’s concerns to bed in SF.
But those who count themselves among the intellectual property constituency can probably take heart that the GAC seems to be still committed to fighting its corner.
The GAC now awaits the publication of ICANN’s official compromise positions, post-Brussels, which it plans to take to its members’ respective “stakeholders”.

Surprise! More new TLDs delay likely

The launch of ICANN’s new top-level domain program looks set to encounter more delays, after international governments said they needed more time for consultation and debate.
Three days of talks between the ICANN board of directors and its Governmental Advisory Committee, which concluded yesterday, resolved many of the GAC’s concerns with new TLDs, but not enough.
Obtaining final closure of these outstanding issues during the San Francisco meeting, March 17, now seems quite unlikely, especially if the GAC gets its way.
The meeting started on an optimistic tone on Monday, degenerated into stalemate on Tuesday, and ran over into an unscheduled third day yesterday, by which point the frustration was audible.
Prior to the meeting, the GAC had provided a “scorecard” that covered 12 areas of new TLD policy where it was still unhappy with ICANN’s positions.
ICANN, in return, had provided matching summary documents that outlined the GAC advice and summarized ICANN’s current thinking on each of the issues.
It became apparent over the first two days of the meeting that the ICANN board was willing to compromise on a number of matters, but that the GAC was unable to do the same, due to its need to consult with ministers and unnamed “advisers”.
One side often seemed to have done more homework than the other, particularly on the issue of trademark protection, where the GAC entered the room as a proxy for the trademark lobby, but without the granular background knowledge needed to answer ICANN’s questions.
Talks disintegrated on Tuesday afternoon, when it became clear that GAC members could not proceed before further consultations with their respective capitals, and that ICANN could not fully address their concerns without further clarifications.
Both sides of the aisle retreated into private discussions for the rest of the day, with the ICANN board later emerging with a list of areas it was prepared to accept GAC advice.
These positions had been more fully fleshed out when the meeting reconvened yesterday morning, but hopes of resolving the discussions by San Francisco appeared to be dashed by the GAC.
The ICANN board decided in January that March 17 will host a so-called “bylaws consultation”, during which ICANN tells the GAC where it has decided to disagree and overrule its advice.
But the GAC unexpectedly revealed yesterday that it does not want the March 17 meeting to have that “bylaws” designation.
A clearly frustrated Peter Dengate Thrush, ICANN’s chairman, asked repeatedly why, in light of the substantial strides forward in Brussels, the GAC had suddenly decided it needed more time:

what we’ve done is clarify and limit the work, so the work we now need to do in San Francisco is reduced and comes in with greater clarity. I don’t understand how more work and more clarity leads to the conclusion that you come to. So you have to help me with this.

The US representative, Suzanne Sene, said the GAC was “surprised” by the bylaws designation.

Actually, if we can go back to the January resolution, a sort of reaction we had at that time was some slight surprise actually that without having seen the GAC scorecard, you were already forecasting that you anticipated not being able to accept the advice contained in the scorecard.

Despite the generally civil tone of the talks, and Dengate Thrush’s opening and closing remarks – in which he said that the meeting was neither “adversarial” nor a “power struggle” – this part of the discussion came across more than most like a pissing contest.
ICANN officially rejecting GAC advice through a bylaws consultation would be unprecedented, and I get the distinct impression that it is something the GAC does not want to happen.
If you’re a government, being overruled by a bunch of DNS policy wonks in California is bad PR.
But if a mutually acceptable compromise is to be made without any advice being rejected, GAC reps need time to take ICANN’s concessions back to their superiors for input, and then to form their own consensus views. Thence the delay arises.
At the end of the meeting, it appeared that talks will be continuing in private in the run-up to the San Francisco meeting, which starts March 13. It also appears that the board and GAC will hold not one but two days of talks during the meeting.
What’s less clear to me is whether ICANN has already agreed that the “bylaws” designation will be removed from the March 17 meeting.
If it does, we’re looking at a few weeks more delays post-SF, while the GAC and board resolve their remaining differences, which could easily impact the planned April 14 publication of the next version of the Applicant Guidebook.

Government domain veto watered down

A US proposal to grant governments the right of veto over new top-level domains has been watered down by ICANN’s Governmental Advisory Committee.
Instead of giving the GAC the ability to block any TLD application on public policy grounds, the GAC’s official position would now allow the ICANN board of directors to make the final decision.
The move means the chances of a .gay application being blocked, to use the most obvious example, are much lower.
The original US position, which was was leaked last month, read:

Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.

If this policy had been adopted, all potentially controversial TLDs could have found themselves pawns of the GAC’s back-room negotiations.
A petition against the US proposal has so far attracted almost 300 signatures.
The newly published official GAC position is based on the language in the US document, but it has been tempered substantially. It now reads:

Any GAC member may raise an objection to a proposed string for any reason. The GAC will consider any objection raised by a GAC member or members, and agree on advice to forward to the ICANN Board.
GAC advice could also suggest measures to mitigate GAC concerns. For example, the GAC could advise that additional scrutiny and conditions should apply to strings that could impact on public trust (e.g. ‘.bank’).
In the event the Board determines to take an action that is not consistent with GAC advice pursuant to Article XI Section 2.1 j and k, the Board will provide a rationale for its decision.

This still gives the GAC a key role in deciding the fate of TLD applications, but it’s one that can be overruled by the ICANN board.
To use the .gay example, the GAC could still advise ICANN that the string has been objected to by a handful of backward nations, but it would be up to the ICANN board to decide whether homophobia is a useful policy to embrace in the DNS.
The GAC proposals, which you can read here, are not policy yet, however.
ICANN and the GAC will meet in Brussels next week to figure out what GAC advice is worth implementing in the new TLDs program.
UPDATE: via @gTLDNews, I’ve discovered that US Department of Commerce assistant secretary Lawrence Strickling recently addressed this topic in a speech.
He seems to believe that ICANN “would have little choice but to reject the application” if the GAC raised a consensus objection. According to his prepared remarks, he said:

We have proposed that the ICANN Board use the already-existing GAC process to allow governments collectively to submit objections to individual applications to top level domains. The GAC already operates on a consensus basis. If the GAC reaches a consensus view to object to a particular application, that view would be submitted to the Board.
The Board, in its role to determine if there is consensus support for a given application (as it is expected to do for all matters coming before it), would have little choice but to reject the application.

Does he have a point?
ICANN has never explicitly rejected GAC advice; the forthcoming San Francisco meeting is probably going to be the first time it does so.
My reading of the ICANN bylaws is that the board is able to reject GAC advice whenever it wants, as long as it provides its rationale for doing so.