Progress made on next new gTLD round rules

Pace towards finalizing the details of the next new gTLD application round is picking up, with a group of policy-makers close to overcoming some of the ICANN board’s concerns about the program.

A so-called “small team” of GNSO members, aided by a couple of ICANN directors, have drafted a set of recommendations aimed at helping the board approve the 38 community recommendations it has not yet adopted.

The board approved 98 new gTLD “Subsequent Procedures” policy recommendations in March, but was hesitant on issues such as the proposed registry back-end evaluation program, round-based applications, and content policing.

The board had raised the specter of a first-come, first-served model for new gTLD applications, something the community roundly rejected during the Policy Development Process for the next rounds.

Directors in the small group have since clarified that they’re really looking for a “steady state” application process, that may or may not involve FCFS, in order to make planning, hiring and software development more predictable.

There seems to be no question of the next application opportunity being anything other than a round-based process.

Nevertheless, it’s now possible that the GNSO may throw the board a bone by suggesting a PDP that would look into how the new gTLD program could operate in a “steady state” over the long term.

Content policing is another issue that has caused the board pause.

SubPro and the GNSO have recommended that registries be able to add Registry Voluntary Commitments — promises to ban certain types of content from their zone, for example — to their ICANN contracts.

But the board is worried that this may break its 2016 bylaws, which demand ICANN not get involved in content policing, even though the similar Public Interest Commitments from the 2012 round are enforceable.

The GNSO and board currently seem to be leaning towards a bylaws amendment to address RVCs, but it will be a bit of a tightrope, language-wise, to keep ICANN on its ostensibly technical mandate.

The small group has met nine times since late March to try and resolve these and other board concerns ahead of the mid-year ICANN 77 meeting in Washington DC, which starts June 12.

There’s a pretty aggressive schedule of meetings between now and then, with a bilateral between GNSO and board May 22. The board should have the GNSO’s response to its roadblocks by DC, which should allow it to start chipping away at some of the 38 unadopted recommendations.

Content police? ICANN mulls bylaws change

ICANN could change its bylaws to allow it to police internet content to an extent, it emerged this week with the publication of the Operational Design Assessment for the next stage of the new gTLD program.

Currently, ICANN’s bylaws state that the Org may not “regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide”, and it’s been adamant that it is not the “content police”.

But the community has recommended that future new gTLD applicants should be able to agree to so-called Registry Voluntary Commitments, statements of registry policy that ICANN would be able to enforce via contract.

RVCs would be much like the Public Interest Commitments many registries agree to in the 2012 application round, implemented before ICANN’s current bylaws were in effect.

As an example I’ve used before, Vox Populi Registry has PICs that ban cyberbullying and porn in its .sucks gTLD, and in theory could lose its contract if it breaks that rule by allowing .sucks sites to host porn (like this NSFW one, for example).

ICANN’s board of directors expressed concern two years ago that its bylaws may prevent it from approving the RVC recommendation.

But Org staff have now raised, in writing and on a webinar today, the prospect that the board could change the bylaws to permit RVCs to go ahead. The ODA published on Monday states:

The Board may wish to consider how and whether it can accept the recommendations related to PICs and RVCs. One option may be to amend the Bylaws with a narrowly tailored amendment to ensure that there are no ambiguities around ICANN’s ability to agree to and enforce PICs and RVCs as envisioned

How worrying this could be would depend on the wording, of course, but even the chance of ICANN meddling in content is usually enough to raise eyebrows at the likes of the Electronic Frontier Foundation, not to mention supporters of blockchain alt-roots, many of whom seem to think ICANN is already censoring the internet.

It’s not clear whether the change is something the board is actively considering, or just an idea being floated by staff.

Has ICANN cut off its regulatory hands?

ICANN may have voluntarily cut off its power to enforce bans on things like cyberbullying, pornography and copyright infringement in future new gTLDs.

Its board of directors yesterday informed the chairs of SubPro, the community group working on new gTLD policy for the next round, that its ability to enforce so-called Public Interest Commitments may be curtailed in future.

A PIC is a contractual promise to act in the public interest, enforceable by ICANN through a PIC Dispute Resolution Process. All 2012 new gTLDs have them, but some have additional PICs due to the gTLD’s sensitive nature.

They were created because ICANN’s Governmental Advisory Committee didn’t like the look of some applications for gTLD strings it considered potentially problematic.

.sucks is a good example — registry Vox Populi has specific commitments to ban cyberbullying, porn, and parking in its registry agreement.

Should ICANN receive complaints about bullying in .sucks, it would be able to invoke the PICDRP and, at least in theory, terminate Vox Pop’s registry contract.

But these are all restrictions on content, and ICANN is singularly focused on not being a content regulator.

It’s so focused on staying away from content that four years ago, during the IANA transition, it amended its bylaws to specifically handcuff itself. The bylaws now state, front and center:

ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide… For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.

There’s a specific carve-out grandfathering contracts inked before October 1, 2016, so PICs agreed to by 2012-round applicants are still enforceable.

But it’s doubtful that any PICs not related to the security and stability of the DNS will be enforceable in future, the board told SubPro.

The issue is being raised now because SubPro is proposing a continuation of the PICs program, baking it into policy in what it calls Registry Voluntary Commitments.

Its draft final report acknowledges that ICANN’s not in the content regulation business, but most of the group were in favor of maintaining the status quo.

But the board evidently is more concerned. It told SubPro’s chairs:

The language of the Bylaws, however, could preclude ICANN from entering into future registry agreements (that materially differ in form from the 2012 round version currently in force) that include PICs that reach outside of ICANN’s technical mission as stated in the Bylaws. The language of the Bylaws specifically limits ICANN’s negotiating and contracting power to PICs that are “in service of its Mission.” The Board is concerned, therefore, that the current Bylaws language would create issues for ICANN to enter and enforce any content-related issue regarding PICs or Registry Voluntary Commitments (RVCs)

There’s a possibility that it could now be more difficult for future applicants to get their applications past GAC concerns or other complaints, particularly if their chosen string addresses a “highly sensitive or regulated industry”.

There was a “chuck it in the PICs” attitude to many controversies in the 2012 round, but with that option perhaps not available in future, it may lead to an increase in withdrawn applications.

Could .sucks get approved in future, without a cast-iron, enforceable commitment to ban bullying?