Clinton confirmed for ICANN’s SF meeting

Former US president Bill Clinton has been confirmed as the star guest speaker of ICANN’s 40th public meeting, which kicks off in San Francisco in a little under two weeks.
According to a tweet minutes ago from CEO Rod Beckstrom, Clinton will address ICANN’s Gala event, March 16 in Union Square.
This is usually an evening drinks-n-canapes event or a sit-down dinner. The SF Gala is scheduled for 7pm.
Given the central, outdoor location, I’m sure security will be tight. We could be looking at another limited-numbers, invitation-only event.
Beckstrom has previously stated that Clinton’s fee will be covered by a special sponsorship deal, but the identity of the sponsor does not appear to have been revealed yet.

ICANN director has .xxx job offer

Sebastien Bachollet, recently installed on the ICANN board as its first elected “At Large” director, has been offered a job working for the .xxx top-level domain, it has emerged.
According to a board “statement of interests” (pdf) released yesterday, independent technology consultant Bachollet:

has been invited to be a member of the Board of the International Foundation for Online Responsibility (IFFOR), which is set up to be the sponsoring organization for the .XXX sTLD, should ICM be awarded a contract for the .XXX sTLD.

He’s only the second person to be named as a potential member of the IFFOR board, after Canadian entrepreneur Clyde Beattie.
It goes without saying that Bachollet will be recusing himself from the (final?) ICANN board vote on ICM Registry’s .xxx contract, set for the San Francisco ICANN meeting March 18.
If .xxx is approved, IFFOR will create policies governing the .xxx TLD. It will be made up of a mixture of the adult industry, security, child protection and free speech advocates.
The SOI also revealed, in an ambiguously plural statement, that: “IBM may apply for new gTLD”.

Registry objects to .jobs shutdown threat

Employ Media will appeal ICANN’s threatened termination of its .jobs registry contract.
The company released a statement (pdf) late yesterday, following ICANN’s unprecedented threat, in which it said ICANN’s claims are “utterly without merit”.
“We view the substance of this notice to be a surprising reversal of position and contradictory to prior decisions issued by its Board of Directors,” the company said.
ICANN yesterday gave Employ Media until the end of the month to cancel its agreement to provide 40,000 .jobs domains to the DirectEmployers Association for its Universe.jobs employment board.
The organization said the allocation of the domains for non-human-resources purposes went against the letter, spirit and intent of the registry’s contract and Charter.
It essentially boils down to a claim that Employ Media hacked its contract to allow it to start making money on names beyond the limited scope of its original “sponsored” community TLD.
The .jobs TLD was originally pitched as a space for corporate HR pages, not independent jobs sites. With Universe.jobs, half of the namespace is an independent jobs site. Employ Media is believed to have a revenue-sharing arrangement with DirectEmployers.
The ICANN breach notice was welcomed by the .JOBS Charter Compliance Coalition, the ad hoc trade group formed by major commercial jobs sites to fight Universe.jobs.
Peter Weddle, executive director of the International Association of Employment Web Sites, said in a press release:

the Dot Jobs Universe was not an innovation but rather an unprecedented attempt by a registry operator to misappropriate an entire TLD for itself and its alliance partner in blatant disregard of ICANN’s rules.

Employ Media disagrees, of course, saying that Universe.jobs came about as a result of its “Phased Allocation” liberalization plan, which was approved by ICANN’s Registry Services Evaluation Process and then survived a Reconsideration Request filed by the Coalition.
The company said: “it is imperative for registry operators to have predictability in the performance of duties and that ICANN has a responsibility to honor its commitments with contracted parties.”
Its registry contract contains a dispute resolution procedure that first calls for bilateral talks and, failing agreement, arbitration via the International Chamber of Commerce.

ICANN threatens to shut down .jobs

In an unprecedented move, ICANN has threatened to cancel a top-level domain registry operator’s contract.
Employ Media, the .jobs registry, faces losing its TLD if it does not shut down Universe.jobs, the controversial jobs board operated by its partner, the DirectEmployers Association.
In a letter to the company (pdf), ICANN general counsel John Jeffrey wrote:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.
…
We are calling on Employ Media to take immediate actions to implement restricted registration policies that support the purpose for which the .JOBS top-level domain was established, and to cancel registrations and/or disavow themselves of the benefits of any registrations that are owned by related parties, if any.

The move comes following a complaint filed by the so-called .JOBS Charter Compliance Coalition, made up of jobs board such as Monster.com and CollegeRecruiter.com.
They’re annoyed that the registry licensed 40,000 premium geographic and vocational .jobs domains to DirectEmployers for Universe.jobs, which has started to compete with them.
Jeffrey wrote:

It appears that Employ Media and SHRM, through the Direct Employers Association, intend to use the .JOBS TLD primarily to compete with other internet job boards. Such use is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community.

The deal came as a result of a change to the .jobs registry contract, made through ICANN’s Registry Services Evaluation Process, that allowed Employ Media to lift a rule that restricted registered domain names only to the names of companies.
What the RSEP didn’t do was change the .jobs Charter, which restricts “who” may register .jobs domains. Yet, weirdly, the Charter is partly the basis for ICANN’s threat.
Jeffrey refers to the Charter restrictions, which are easily circumvented, as “specious” and “do not serve the international human resource management community”.
This is the Charter that ICANN approved back in 2005, and which hasn’t changed since, remember.
To come back into compliance, ICANN wants Employ Media to shut down Universe.jobs and get back to selling company-name registrations.
I think it’s likely Employ Media will appeal, possibly by taking the case to arbitration, as its contract allows.

US may break up ICANN powers

The US government is considering taking away some of ICANN’s powers.
The Department of Commerce today kicked off the process of reviewing the so-called IANA contract, from which ICANN currently derives its control over the domain name system root zone.
As I predicted yesterday, Commerce has published a Notice of Inquiry in the Federal Register. It wants input from the public before it officially opens the contract for rebidding.
ICANN has operated the IANA functions, often regarded as intrinsic to and inseparable from its mission, for the last decade. But the contract expires September 30 this year.
Significantly, Commerce now wants to know whether the three IANA functions – IP address allocation, protocol number assignments, and DNS root zone management – should be split up.
The NOI says:

The IANA functions have been viewed historically as a set of interdependent technical functions and accordingly performed together by a single entity. In light of technology changes and market developments, should the IANA functions continue to be treated as interdependent? For example, does the coordination of the assignment of technical protocol parameters need to be done by the same entity that administers certain responsibilities associated with root zone management?

I’m speculating here, but assuming ICANN is a shoo-in for the domain names part of the IANA deal, this suggests that Commerce is thinking about breaking out the IP address and protocol pieces and possibly assigning them to a third party.
The NOI also asks for comments about ways to improve the security, stability and reportable metrics of the IANA functions, and whether relationships with other entities such as regional internet registries and the IETF should be baked into the contract.
The timing of the announcement is, as I noted yesterday, interesting. It could be a coincidence, coming almost exactly five years after the IANA contract last came up for review.
But ICANN’s board of directors and its Governmental Advisory Committee will meet in Brussels on Monday to figure out where they agree and disagree on the new top-level domains program.
While it’s an ICANN-GAC meeting, the US has taken a prominent lead in drafting the GAC’s position papers, tempered somewhat, I suspect, by other governments, and will take a key role in next week’s talks.
Hat tip: @RodBeckstrom.

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.

IANA contract up for rebid this week?

As ICANN’s leadership heads off to Brussels to kick off two days of unprecedented talks about new top-level domains with international governments, one nation has an ace up its sleeve.
The US government could be just a day or two away from putting the IANA contract, from which ICANN derives much of its power over domain names, up for public discussion and rebidding.
It’s a matter of record that the IANA contract expires at the end of September, and that it will have to be renewed this year if ICANN wants to continue functioning as it is today.
But could the rebid process kick off as early as this week? It seems likely. The timing is right, especially if the US wants to make a statement.
It was February 21, 2006, five years ago this week, that the US Department of Commerce put out a “Request For Information” that led to the current five-year IANA deal with ICANN being signed.
No new RFI has been released yet. But Commerce could choose to pull rank, putting pressure on ICANN to recognize its authority, by issuing such a document this week.
There’s also the possibility that Commerce will issue not an RFI but instead a “Notice Of Inquiry”, a different type of public procurement procedure notice that would kick off not just a rebidding process but a whole lot of public argument about ICANN’s role in internet governance.
Over the years, it has not been unheard of for the US government to occasionally remind ICANN that it has a special relationship with it, particularly before important governance decisions are made.
Most recently, shortly before the ICANN meeting in Cartagena last December, Larry Strickling, assistant secretary at Commerce, warned that the new TLDs program wasn’t shaping up quite how the US expected.
Next week, Commerce’s Suzanne Sene is one of several Governmental Advisory Committee representatives expected to take a lead role in the ICANN-GAC negotiations.
One way or the other, the IANA contract is up for renewal this year, and the process may soon start that could see the function, hypothetically at least, change hands this September.
IANA, for Internet Assigned Numbers Authority, is responsible for the high-level management of IP address allocations, protocol numbers, and top-level domains.
If a gTLD or ccTLD wants to make a change to its DNS records it has to go to IANA, in much the same way as domain owners such as you and me have to go to our registrar.
IANA decides whether to redelegate a ccTLD to a new registry, for example. When .co liberalized recently, it only did so after IANA approved the transfer of the domain to .CO Internet from a Bogota university.
It’s also responsible for making the call on adding new TLDs to the root. Assigning the IANA function to an entity other than ICANN could, for example, add latency to the go-live date of new TLDs.
For the last decade, IANA has been pretty much an ICANN in-house department. It’s not at all clear to me what would happen if IANA was contracted to a third party, especially one that disagreed with ICANN’s decisions.
Both the European Commission and the Internet Architecture Board have recently indicated that they believe the IANA-ICANN relationship could be due a rethink, as Milton Mueller of the Internet Governance Project noted last summer.

Winners and losers in the next Applicant Guidebook

Who’s going to be happy, and who won’t be, after ICANN publishes the next version of its Applicant Guidebook for new top-level domains in April?
We now have a rough idea of the answers to those questions, following the publication this week of ICANN’s analysis of comments received between November and January.
The 163-page document (pdf) outlines where ICANN is still open to changing its rules for applying for a TLD, and where it believes the book is firmly shut.
As you might expect, at this late stage in the game, most of the analysis is essentially “thanks, but no thanks”, reiterating the reasons why the Guidebook currently says what it says.
But there are strong indications of which changes will be made to the “next” version of the Guidebook, which is currently expected to hit the ICANN web site April 14.
Here’s a high-level analysis of the winners and losers.
Impatient Applicants
Companies and entrepreneurs that have been tapping their feet for the last couple of years, hit by delay after delay, can probably take comfort from the fact that ICANN is still making encouraging noises about its commitment to the new TLDs program.
Noting that some issues are still in need of further work, ICANN staff writes:

it is ICANN’s intention to reach resolution on these issues. It would be irresponsible to use community resources to run a process without the intention to see it through to conclusion.
…
ICANN continues to approach the implementation of the program with due diligence and plans to conduct a launch as soon as practicable along with the resolution of these issues

Beyond what I noted in a post earlier this afternoon, there are no clues about the timetable for actually launching the program, however.
Trademark Holders
It’s a mixed bag for the intellectual property lobby, but on balance, given the length of its wish-list, I expect the trademark crowd will be more disappointed than not.
In general, ICANN is firm that the rights protection mechanisms (RPMs) in the Guidebook are the result of community compromise, and not for changing.
This is sometimes the case even when it comes to issues ICANN plans to discuss with its Governmental Advisory Committee next week.
One of these is the Trademark Clearinghouse, the database of trademark rights to be used to reduce cybersquatting, of which ICANN says:

subject to further refinement through the GAC consultation and other comments received to date, the positions in the Clearinghouse proposals will be finalized substantially similar to as it was in the Proposed Final Applicant Guidebook.

On the Globally Protected Marks List, a mechanism trademark holders want included in the Guidebook, ICANN is suitably mysterious:

It is clear that the trademark interests have continued to raise the GPML as possible RPM. While this discussion may continue, no further progress or decisions have been made.

The most substantial concession ICANN appears ready to make to trademark holders concerns the Uniform Rapid Suspension mechanism, a cousin of the UDRP that will be used to address clear-cut cases of cybersquatting in new TLDs.
A major concern from the IP lobby has been that the URS is too slow and complex to meet its original goals. ICANN disagrees that it does not do the job, but plans to streamline it anyway:

Discussions are continuing and some additional implementation detail revisions will likely be made, for example, creating a form complaint that reduces the 5000-word limit to 500 words. The 500-word limit might not, however, be placed on the respondent, as the respondent will be required to describe the legitimate basis upon with the domain name is registered. The respondents word limit be decreased from 5,000 to something less, possibly 2,500 words, in order to decrease the examinations panel‘s time requirements and thereby enhance circumstances for a relatively loss cost process. (Remember that in the vast majority of cases, it is expected that the respondents will not answer.)

This will certainly be a topic of discussion at the ICANN-GAC meeting in Brussels on Monday, so I expect IP attorneys are even now briefing their governments on how these proposed changes won’t go far enough for whatever reason.
Domainers
There’s bad news if you’re a high-rolling domain investor, looking at bagging a new TLD or three, and you also have a few UDRP losses against your name.
The background check ICANN will carry out on applicants for their history of cybersquatting stays, and it will still use the three-losses-as-UDRP-respondent benchmark.
However, ICANN has recognized that UDRP decisions are not always final. If you lost a UDRP but subsequently won in court, that decision won’t count against you.
In addition, reverse domain name hijacking findings will now also count against applicants to the same degree as UDRP losses.
I believe both of those concessions capture so few entities as to be more or less irrelevant for most potential applicants.
“.brand” Applicants
ICANN is in favor of companies applying to run “innovative” TLDs, such as “.brands”, but it is reluctant to carve out exceptions to the rules for these applicants.
The organization does not plan to give .brands a pass when it comes to protecting geographic names, nor when it comes to the requirement to register domains through an accredited registrar.
This seems to mean, for example, that if Microsoft successfully obtains .microsoft and wants to register usa.microsoft to itself, it will have to ask the US government for permission.
It also means .brands will still have to seek ICANN accreditation, or work with an existing registrar, in order to sell domains to themselves. It’s an added cost, but not an unworkable one.
Would-be .brand applicants did, however, win one huge concession: If they decide to turn off their TLD, it will not be redelegated to a third-party. ICANN wrote, with my emphasis:

In the limited case of .brand and other TLDs that operate as single-registrant/single-user TLDs it would probably make sense to not force an outgoing operator to transition second-level registration data (since presumably the operator could just delete all the names as the registrant anyway and then there would be nothing to transition), and therefore ICANN will put forward proposed language for community review and feedback that would provide for alternative transition arrangements for single-registrant/single-user gTLDs.

If .microsoft was unsuccessful and Microsoft decided to stop running it, Google would not be able to take over the ICANN registry contract, for example.
Poor People/Cheapskates
Some commenters wanted ICANN to reduce application fees in cases where the applicant is from a poorer nation, a non-governmental organization, or when they intend to apply for multiple versions of the same TLD.
They’re all out of luck.
The $185,000 baseline application fee is to stay, at least for the first round. ICANN thinks it could be reduced in future rounds, once more uncertainty has been removed from the process.
Currently, $60,000 of each fee is set aside for a “risk” (read: litigation) war-chest, which will be presumably less of an issue after the first round is completed.
Special Interests
The International Olympic Committee and the Red Cross, as well as financial services organizations, may receive the special concessions they asked for in the next Guidebook.
The IOC and Red Cross may be given the same protections as afforded to ICANN, regional internet registries, and generic terms such as “example” and “test”.

ICANN is considering the nature of these protections, and if appropriate, might augment the reserved names lists in special cases such as requested by the International Olympic Committee (IOC) and the International Red Cross, both of which are globally invested in representing the public interest.

It also emerged that ICANN is working with the financial services industry to clarify some of the security-related language in the Guidebook.
Community Applicants
Sorry guys, ICANN intends to keep the threshold score for the Community Priority Evaluation at 14 out of 16. Nor will you get a bonus point for already showing your cards by starting community outreach two years ago. Winning a CPE is going to be as tough as ever.
*
This is just a brief, non-exhaustive overview of the changes that are likely to come in the next Applicant Guidebook, setting the stage for the GAC talks next week and the San Francisco ICANN meeting next month.
One thing seems pretty clear though: this is end-game talk.

New TLDs could come quicker than expected

New top-level domains may arrive a month earlier than previously projected, after ICANN revealed it is considering reducing the first-round application window to 60 days.
That’s one of a number of suggested changes to the new TLDs program that appear in documents published Monday (more on this later).
In the summary and analysis of public comments on November’s proposed final Applicant Guidebook, ICANN staff write (with my emphasis):

A set of commenters suggested that the application submission period should be 30 days. ICANN has not established the length of this period; however, it is expected that it the necessary steps leading up to and including the submission of an application will take some time to complete. ICANN’s intention is to ensure that the time period is sufficient for applicants to provide appropriate attention to these steps. The application period will be at least 60 days and no longer than 90 days.

A 60-day window would reduce the minimum estimated period between ICANN approving the guidebook and the first new TLDs going live from 15 months to 14 months.
ICANN currently expects to launch a four-month communication period after the Guidebook is approved, followed by the application window.
The most-straightforward TLDs could be approved in as little as eight months after applications close, and going through IANA to get into the root could take as little as 10 days.
If the Guidebook gets the nod in April, we could be looking at TLDs live by July 2012, with sunrise periods starting not too long thereafter, but that’s still the most optimistic outcome for applicants.

Trojan TLDs to get more scrutiny

ICANN has proposed a new policy for its new top-level domain program that would make it harder for community-based TLDs to liberalize their registration policies after they launch.
The idea is to prevent a replay of the recent .jobs controversy, in which registry Employ Media substantially altered its business model after failing to sell enough .jobs domains.
Because the Applicant Guidebook gives “community” TLD applications an opportunity to avoid a potentially costly auction if their TLD is contested by multiple applicants, there’s a risk of gaming.
Under the current rules, a company could win a contested TLD without paying big bucks, by promising to restrict it to a narrowly defined community of registrants.
It could later attempt to change its rules via ICANN’s Registry Services Evaluation Process to broaden or limit its potential customer base, potentially harming others in the community.
I call these Trojan TLDs.
Employ Media, for example, restricted .jobs domains to the names of companies, but now has licensed thousands of geographical and vocational generic names to a partner, over the objections of major jobs search engines such as Monster.com.
Under ICANN’s proposed policies (pdf), community TLDs would still have to pass through the RSEP, but they’d also be subject to a review under the Community Priority Evaluation.
The CPE is already in the Guidebook. It will be used to score applications based on the strength of community support. To avoid an auction, you need to score 14 out of 16 points.
ICANN now suggests that the CPE criteria could also be used to evaluate what it calls a “Community gTLD Change proposal” made by a TLD registry post-launch.
The new score would be used to determine whether to accept or reject the change:

If the sum of all identified score changes for the first three CPE criteria is zero or positive, the recommendation would be to accept the proposal, regardless of any relevant opposition identified. If the sum is minus one, the recommendation would be to accept the proposal, unless there is relevant opposition from a group of non-negligible size, in which case the recommendation would be to reject the proposal. If the sum is minus two or lower, the recommendation would be to reject the proposal.

The ICANN board would be able to deviate from the CPE recommendation, as long as it stated its reasons for doing so, and the registry would have the right to appeal that decision under the existing Reconsideration Request process.
These rules would apply to all new TLDs that designate themselves as community-based, apparently regardless of whether they successfully passed the CPE during the application process.
The rules are presented as a “discussion draft”, but I don’t think they’re going to be opened to official public comment.