Conflicting gTLD objection decisions to get appeals process?

ICANN seems to be considering an appeals process for new gTLD applicants that feel they’ve been wronged by dubious String Confusion Objection decisions.
But the process might be limited to applicants for .car, .cars and .cam.
In a resolution this Wednesday, ICANN’s New gTLD Program Committee said:

the NGPC is considering potential paths forward to address the perceived inconsistent Expert Determinations from the New gTLD Program String Confusion Objections process, including implementing a review mechanism. The review will be limited to the String Confusion Objection Expert Determinations for .CAR/.CARS and .CAM/.COM.

Why only those strings? I’m guessing it’s because the conflicting decisions would make for extremely confusing contention sets.
There were three SCOs against .cars applications, filed by Google, which has applied for .car. Google won one case but lost the other two.
That would mean that Google’s .car application would be in contention with one of the applicants but not the other two, hardly a fair outcome.
Similarly, Verisign objected to five .cam applications due to their similarity to .com. It won one and lost the other four.
The NGPC resolution calls for the publication, for comment, of a reviews process designed to untangle this mess. It does not appear to have been published yet.
But it seems that whatever ICANN has come up with will not apply to other applicants who feel they’ve been wronged by odd SCO, or other objection, decisions.

ICANN puts .islam and other gTLD bids in limbo

Or should that be Barzakh?
Rather than making the tricky decision on whether to approve .islam and .halal new gTLD applications, ICANN seems to have place both bids into permanent limbo.
It’s also put off calls on applications for .spa, .amazon, .wine and .vin, due to objections from the Governmental Advisory Committee.
On .islam and .halal, ICANN chair Steve Crocker wrote to Turkish applicant Asia Green IT System to say that the New gTLD Program Committee will not address the bids until AGIT has worked out its differences with the Organization for Islamic Cooperation.
He noted that AGIT has expressed a willingness in the past to work with the OIC, but that the OIC has formally decided to object to the two applications. Crocker wrote:

There seems to be a conflict between the commitments made in your letters and the concerns raised in letters to ICANN urging ICANN not to delegate the strings. Given these circumstances, the NGPC will not address the applications further until such time as the noted conflicts have been resolved.

This is not a formal rejection of the applications, but ICANN seems to have placed them in a limbo that will only be resolved when AGIT withdraws from the program or secures OIC support.
There’s also delaying treatment for .wine and .vin, which have become the subject of a raging row between Europe on the one hand and the US, Canada and Australia on the other.
Europe wants these two wine-related gTLDs to be subject to strict rules on who can register domains containing geographic indicators, such as “Champagne”. The others don’t.
ICANN in response has commissioned a third-party study on GIs, which it expects to be able to consider at its Singapore public meeting next month. Again, a decision has been avoided.
The two applicants for .spa don’t have any closure either.
Spa is the name of a town in Belgium, whereas the two applicants — Donuts and Asia Spa and Wellness Promotion Council — intend to use the string in its English dictionary sense.
There was a bit of a scandal during the Buenos Aires meeting last November when it was suggested that Belgium was using its position on the GAC to shake down the applicants for money.
Belgium denied this, saying the city of Spa didn’t stand to gain financially from the deals that it was trying to make with applicants. Some money would go to “the community served by .spa”, Belgium said, without elaboration.
ICANN has now decided to put .spa on hold, but wants to know more about these talks:

ICANN will not enter into registry agreements with applicants for the identified string at this time. The NGPC notes concern about concluding the discussions with the applicants and will request the GAC to (1) provide a timeline for final consideration of the string, and (2) identify the “interested parties” noted in the GAC advice.

Finally, ICANN has yet again delayed making a call on Amazon’s application for .amazon — until at least Singapore — out of an abundance of legal caution.
The GAC recommended that ICANN should reject .amazon because a few Latin American states claim ownership of the string due to it being the same as the Amazon region they share.
Amazon and others claim that it would be in violation of international law that prevents governments interfering with the use of trademarks for the GAC to block .amazon.
ICANN’s NGPC said:

ICANN has commissioned an independent, third-party expert to provide additional analysis on the specific issues of application of law at issue, which may focus on legal norms or treaty conventions relied on by Amazon or governments. The analysis is expected to be completed in time for the ICANN Singapore meeting so that the NGPC can consider it in Singapore.

In my view, the .amazon issue is the one most likely to bring a lawsuit to ICANN’s doorstep, so the organization clearly wants to get its legal position straight before making a call one way or the other.
All these decisions were made on Wednesday. You can read the NGPC’s resolution here and the important details here.

ICANN approves reworked GAC advice over US concerns

No sooner had we reported on the US government’s complaint about ICANN’s reinterpretation of GAC advice on new gTLDs than it emerged that ICANN has already approved the plan.
The ICANN board’s New gTLD Program Committee on Wednesday approved a resolution on how to implement the so-called Category 1 advice the Governmental Advisory Committee came up with in Beijing last April. The resolution was published today.
The Category 1 advice calls for stronger regulation — stuff like forcing registrants to provide industry credentials at point of sale — in scores of new gTLDs the GAC considers particularly sensitive.
Despite US Department of Commerce assistant secretary Larry Strickling calling for more talks after ICANN substantially diluted some of the GAC’s Beijing communique, the NGPC has now formally approved its watered-down action plan.
Under the plan, registrants in gTLDs such as .lawyer and .doctor will have to “represent” that they are credentialed professionals in those verticals when they register a domain.
That’s as opposed to actually providing those credentials at point of registration, which, as Strickling reiterated in his letter, is what the GAC asked for in its Beijing communique.
The full list of eight approved “safeguards” (as interpreted from GAC advice by ICANN) along with the list of the gTLDs that they will apply to, can be found in this PDF.

US unhappy with ICANN, urges more delay to many new gTLDs

The US government is not pleased with ICANN’s rather liberal interpretation of Governmental Advisory Committee advice on new gTLDs and wants more talks about “safeguards”.
Not only that, but it wants to start talking to ICANN about extending safeguards applicable to new gTLDs to old gTLDs, presumably including the likes of .com, too.
A letter to ICANN from Department of Commerce assistant secretary Larry Strickling, obtained by DI today, calls for more talks before ICANN finalizes its handling of the GAC’s Beijing communique.
Strickling notes, as DI has previously, that ICANN softened the meaning of the advice in order to smooth its implementation.

as can be the case when translating GAC Advice to contractual provisions, the NGPC [the ICANN board’s New gTLD Program Committee] made adjustments to the GAC Advice that the United States believes could cause enforcement problems and as such merits further discussion. The National Telecommunications and Information Administration (NTIA), on behalf of the United States, is planning to raise these concerns for discussion at the March GAC meeting in Singapore and requests that ICANN take this fact into account before moving forward with applications for strings impacted by the relevant portions of GAC advice

The letter (pdf) was sent February 4, just a day before the NGPC held a meeting — the results of which we do not yet know — that had the GAC Advice on its agenda.
The New gTLD Applicants Group had urged the NGPC to finally put the GAC Advice to rest, highlighting the “heavy burden that the delay in the implementation of GAC Category 1 Advice has imposed upon affected applicants” in a letter last week.
The Category 1 advice, you may recall, comprised eight “safeguards” mandating policies such as industry engagement and registrant authentication, applicable to at least 386 gTLD applications.
Back in November, ICANN announced how it planned to handle this advice, but changed its meaning to make it more palatable to ICANN and applicants.
Those changes are what Strickling is not happy with.
He’s particularly unhappy with changes made to the GAC’s demand for many gTLDs to be restricted to only card-carrying members of the industries the strings seem to represent.
The GAC said in Beijing:

At the time of registration, the registry operator must verify and validate the registrants’ authorisations, charters, licenses and/or other related credentials for participation in that sector.

In other words, you’d have to provide your doctor license before you could register a .doctor domain.
But ICANN proposed to implement it like this:

Registry operators will include a provision in their Registry-Registrar Agreements that requires Registrars to include in their Registration Agreements a provision requiring a representation that the Registrant possesses any necessary authorisations, charters, licenses and/or other related credentials for participation in the sector associated with the Registry TLD string.

The doctor under this policy would only require the doctor to check a box confirming she’s a doctor. As Strickling said:

The NGPC has changed the GAC-coveyed concept of “verification and validation” to “representation”

Requirements for registries to mandate adherence to government regulations on the protection of financial and healthcare data are also his targets for further discussion.
What all this boils down to is that, assuming ICANN paid heed to Strickling’s letter, it seems unlikely that NTAG will get closure it so desperately wants until the Singapore meeting in late March — a year after the original Beijing communique — at the earliest.
In other words, lots of new gTLD applicants are probably going to be in limbo for a bit longer yet.
But Strickling also has another bombshell to drop in the final sentence of the letter, writing:

In addition, we will recommend that cross community discussion begin in earnest on how the safeguards that are being applied to new gTLDs can be applied to existing gTLDs.

So it seems the GAC is likely to start pressing to retroactively apply its new gTLDs advice to legacy gTLDs too.
Registrant verification in .com? Stricter Whois checks and enforcement? That conversation has now started, it seems.

EU body tells ICANN that 2013 RAA really is illegal

A European Union data protection body has told ICANN for a second time — after being snubbed the first — that parts of the 2013 Registrar Accreditation Agreement are in conflict with EU law.
The Article 29 Data Protection Working Party, which is made up of the data protection commissioners in all 28 EU member states, reiterated its claim in a letter (pdf) sent earlier this month.
In the letter, the Working Party takes issue with the part of the RAA that requires registrars to keep hold of customers’ Whois data for two years after their registrations expire. It says:

The Working Party’s objection to the Data Retention Requirement in the 2013 RAA arises because the requirement is not compatible with Article 6(e) of the European Data Protection Directive 95/46/EC which states that personal data must be:
“kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected”
The 2013 RAA fails to specify a legitimate purpose which is compatible with the purpose for which the data was collected, for the retention of personal data of a period of two years after the life of a domain registration or six months from the relevant transaction respectively.

Under ICANN practice, any registrar may request an opt out of the RAA data retention clauses if they can present a legal opinion to the effect that to comply would be in violation of local laws.
The Working Party told ICANN the same thing in July last year, clearly under the impression that its statement would create a blanket opinion covering all EU-based registrars.
But a week later ICANN VP Cyrus Namazi told ICANN’s Governmental Advisory Committee that the Working Party was “not a legal authority” as far as ICANN is concerned.
The Working Party is clearly a bit miffed at the snub, telling ICANN this month:

The Working Party regrets that ICANN does not acknowledge our correspondence as written guidance to support the Waiver application of a Registrar operating in Europe.
…
the Working Party would request that ICANN accepts the Working Party’s position as appropriate written guidance which can accompany a Registrar’s Data Retention Waiver Request.

It points out that the data protection commissioners of all 28 member states have confirmed that the letter “reflects the legal position in their member state”.
ICANN has so far processed one waiver request, made by the French registrar OVH, as we reported earlier this week.
Weirdly, the written legal opinion used to support the OVH request is a three-page missive by Blandine Poidevin of the French law firm Jurisexpert, which cites the original Working Party letter heavily.
It also cites letters from CNIL, the French data protection authority, which seem to merely confirm the opinion of the Working Party (of which it is of course a member).
EU registrars seem to be in a position here where in order to have the Working Party’s letter taken seriously by ICANN, they have to pay a high street lawyer to endorse it.

First European registrar to get Whois data opt-out

ICANN plans to give a French registrar the ability to opt out of parts of the 2013 Registrar Accreditation Agreement due to data privacy concerns.
OVH, the 14th-largest registrar of gTLD domains, asked ICANN to waive parts of the RAA that would require it to keep hold of registrant Whois data for two years after it stops having a relationship with the customer.
The company asked for the requirement to be reduced to one year, based on a French law and a European Union Directive.
ICANN told registrars last April that they would be able to opt-out of these rules if they provided a written opinion from a local jurist opining that to comply would be illegal.
OVH has provided such an opinion and now ICANN, having decided on a preliminary basis to grant the request, is asking for comments before making a final decision.
If granted, it would apply to “would apply to similar waivers requested by other registrars located in the same jurisdiction”, ICANN said.
It’s not clear if that means France or the whole EU — my guess is France, given that EU Directives can be implemented in different ways in different member states.
Throughout the 2013 RAA negotiation process, data privacy was a recurring concern for EU registrars. It’s not just a French issue.
ICANN has more details, including OVH’s request and links for commenting, here.

Scottish gTLD may launch before independence vote

The application for .scot, a new gTLD for Scottish people, is ahead of schedule and is likely to launch before the nation heads to voting booths for an independence referendum later this year.
Glasgow-based applicant Dot Scot Registry signed its ICANN Registry Agreement on January 23. That’s despite having a processing priority number way down the pile at 1,453.
The company had previously expected that it would launch in “early 2015”, according to a press release. Now it’s hoping to launch before the Commonwealth Games kicks off, also in Glasgow, on July 23.
If .scot moves as quickly through the remaining stages of the application process as other registries have, it could be delegated in late March, meaning general availability could come as early as June.
This means the domain is likely to be in the hands of Scots and those of Scottish heritage before the landmark independence referendum, which is set for September 18 this year.
The vote will see Scots asked “Should Scotland be an independent country?”. If the majority says “yes”, Scotland would withdraw from the United Kingdom and become fully self-governing.
Scotland’s first minister, Alex Salmond, said in the press release:

2014 is an exciting year for Scotland, and I’m delighted that this distinct online identity for the nation, and all who take an interest in Scotland, will become available this summer.

If Scotland does become the world’s newest formally recognized country, it will be eligible for its own two-character ccTLD too.
The string would be designated by the International Standards Organization and is not likely to be particularly meaningful. The only two-character strings remaining that begin with S are .sf, .sp, .sq and .sw.
The process of obtaining a ccTLD would also take at least a year after (if) Scotland is recognized by the United Nations as an independent nation, which wouldn’t be until at least 2016.
Whatever happens, .scot is going to see the light of day well before any potential Scottish ccTLD, perhaps making it the .com to the country’s .us over the long term.

Gripe sites and PPC banned in new gTLD

New gTLD registry Plan Bee expects to ban gripe sites in its forthcoming .build registry.
Its Acceptable Use and Takedown Policy (pdf), published this week, is among the strictest I’ve seen.
The gTLD was delegated last weekend. It’s going to be an open space targeted at the construction industry, but its AUP bans a lot of stuff.
As might be expected, any form of malicious hacking or spamming behavior is verboten, as is child abuse material.
Activities more often regulated today by registrar user agreements — such as piracy and counterfeiting — are also prohibited.
But the policy goes on to ban activities that are typically permitted in other TLDs, including “gripe sites” and “pay-per-click”. The AUP reads (I’ve emphasized some oddities):

Further abusive behaviors include, but are not limited to: cybersquatting, front-running, gripe sites, deceptive and⁄or offensive domain names, fake renewal notices, cross-gTLD registration scam, name spinning, pay-per-click, traffic diversion, false affiliation, domain kiting⁄tasting, fast-flux, 419 scams or if the domain name is being used in a manner that appears to threaten the stability, integrity or security of the Registry, or any of its Registrar partners and ⁄or that may put the safety and security of any registrant or user at risk.

Domains deemed abusive can be suspended or deleted by Plan Bee, under the policy.
I can see why a niche gTLD might want to build up loyalty in its associated industry by suspending gripe sites targeting construction companies, but banning “pay-per-click” is a baffling decision.
Will .build registrants be prohibited from using Google Adsense to support their sites?
The .build launch dates have not yet been revealed but it’s likely to be a matter of weeks.

Ten more new gTLDs go live

Donuts, Afilias and Atgron were the beneficiaries of 10 new gTLD delegations yesterday.
Various Donuts subsidiaries had .boutique, .bargains, .cool, .expert, .tienda (“shop” in Spanish), .tools, .watch, .works delegated, bringing the company’s total portfolio to 70 gTLDs.
Afilias had its fourth new gTLD of this round go live in the DNS root: .kim, which is expected to serve people who have the first or last name Kim.
I think it’s the first personal-name gTLD to hit the internet.
Finally, Atgron had .wed delegated. It’s going to be an unrestricted gTLD aimed at marrying couples. It will eventually compete with the currently contested string .wedding.
I have to ponder what the renewal rates are going to be like for what seems to be the first event-focused TLD.
How long before their big day will registrants register their names, and for how long afterwards will they keep the registration alive for sentimental reasons? Atgron reckons such sites stay live for about 18 months.
There are also reportedly twice half as many divorces as marriages in the US at the moment. One wonders why nobody applied for .divorce.

DotConnectAfrica files for ICANN independent review

Failed .africa gTLD applicant DotConnectAfrica has filed an Independent Review Process appeal against ICANN, it emerged today.
The nature of the complaint is not entirely clear, but in a press release DCA said it’s related to “ICANN Board decisions and actions taken with regard to DCA Trust’s application for the .africa new gTLD”.
It’s only the third time an IRP has been filed. The first two were related to .xxx; ICM Registry won its pioneering case in 2009 and Manwin Licensing settled its followup case last year.
DCA said that it’s an “amended” complaint. It turns out the first notice of IRP was sent October 23. ICANN published it December 12, but I missed it at the time.
I’d guess that the original needed to be amended due to a lack of detail. The “Nature of Dispute” section of the form, filed with the International Center for Dispute Resolution, is just a sentence long, whereas ICM and Manwin attached 30 to 60-page legal complaints to theirs.
The revised notice, which has not yet been published, was filed January 10, according to DCA.
DCA applied for .africa in the current new gTLD round, but lacked the government support required by the Applicant Guidebook for strings matching the names of important geographic regions.
Its rival applicant, South African ccTLD registry Uniforum, which does have government backing, looks set to wind up delegated, whereas ICANN has designated DCA’s bid as officially “Not Approved”.
DCA has been alleging a conspiracy — often involving DI — at almost every juncture of the process, even before it filed its application. Read more here, here and here.
To win an IRP, it’s going to have to show that it suffered “injury or harm that is directly and causally connected to the Board’s alleged violation of the Bylaws or the Articles of Incorporation”.