Government anger over two-letter domains

ICANN’s Governmental Advisory Committee has clashed with its board of directors over the lack of protections for two-letter domain names that match country codes.
The board has now formally been urged to reconsider its policy to allow registries to sell these names, after angry comments and threats from some GAC members.
Governments from Brazil, Iran, China and the European Union are among at least 10 angered that the names are either not adequately protected or only available for exorbitant prices,
The debate got very heated at ICANN 58 here in Copenhagen on Wednesday morning, during a public session between the GAC and the board, with Iran’s outspoken GAC rep, Kavous Arasteh, almost yelling at Chris Disspain, the board’s point man on the topic.
Arasteh even threatened to take his concerns, if not addressed, to the International Telecommunications Union when it convenes for a plenipotentiary next year.
“Your position is not acceptable. Rejected categorically,” he said.
“The multistakeholder process was not easily accepted by many countries. Still people have difficulty with that,” he said. “We have a plenipotentiary coming in 2018, and we will raise the issue if the matter is not resolved… It is not always commercial, government also has some powers, and we exercise our powers.”
Invoking the ITU is a way to turn a relatively trivial disagreement into an existential threat to ICANN, a typical negotiating tactic of governments that don’t get what they want from ICANN.
The relatively trivial disagreement in this case is ICANN’s decision to allow gTLD registries to release all previously reserved two-letter strings.
In November, ICANN approved a policy that released all two-letter strings on the proviso that registrants have to assert that they will not pass themselves off as affiliated with the countries concerned.
Registries also were given a duty to investigate — but not necessarily act upon — governmental complaints about confusion.
ICANN thinks that this policy is perfectly compliant with the GAC’s latest official advice, supplied following the Helsinki meeting last June, which asked ICANN to:

urge the relevant Registry or the Registrar to engage with the relevant GAC members when a risk is identified in order to come to an agreement on how to manage it or to have a third-party assessment of the situation if the name is already registered.

Disspain patiently pointed out during Wednesday’s session that governments have no legal rights to their ccTLD strings at the second level, and that most of the complaining governments don’t even protect two-letter strings in their own ccTLDs.
But some GAC reps disagreed.
China stated (via the official interpreter): “We believe the board doesn’t have the right or the mandate to decide whether GAC members have the right over two-character domain names.”
While no government spoke in favor of the ICANN policy on Wednesday, the complaining governments do appear to be in a minority of the GAC.
Despite this, they seem to have been effective in swaying fellow committee members to issue some stern new advice. The Copenhagen communique, published last night (pdf), reads:

a. The GAC advises the ICANN Board to:
I. Take into account the serious concerns expressed by some GAC Members as contained in previous GAC Advice
II. Engage with concerned governments by the next ICANN meeting to resolve those concerns.
III. Immediately explore measures to find a satisfactory solution of the matter to meet the concerns of these countries before being further aggravated.
IV. Provide clarification of the decision-making process and of the rationale for the November 2016 resolution, particularly in regard to consideration of the GAC advice, timing and level of support for this resolution.

ICANN is being compelled to retroactively revisit a policy that was issued in compliance with previous GAC advice, it seems.
The next ICANN meeting is being held in Johannesburg in June, so the clock is ticking.
Two-letter domains are valuable properties even in new gTLDs. With each expected to sell for thousands, two-letter names are likely to be a multimillion dollar windfall for even moderately sized portfolio registries.

Get ready for thousands of new two-letter domains

New gTLD registry operators have been given the right to start selling two-letter domains that match country codes.
Potentially thousands of names could start being released next year, resulting in a windfall for registries and possible opportunities for investors.
Some governments, however, appear to be unhappy with the move and how ICANN’s board of directors reached its decision.
The ICANN board yesterday passed a resolution that will unblock all two-letter domains that match country codes appearing on the ISO 3166 list, most of which are also ccTLDs.
While the resolution gives some protection to governments worried about abuse of “their” strings, it’s been watered down to virtually nothing.
In the first draft of the rules, published in July, ICANN said registries “must” offer an “Exclusive Availability Pre-registration Period” — a kind of mini-sunrise period limited to governments and ccTLD operators.
In the version approved by ICANN yesterday, the word “must” has been replaced by “may” and the word “voluntary” has been added.
In other words, registries won’t have to give any special privileges to governments when they start selling two-character names.
They will, however, have to get registrants to agree that they won’t pass themselves off as having affiliations with the relevant government. It looks like registries probably could get away with simply adding a paragraph to their terms of service to satisfy this requirement.
Registries will also have to “take reasonable steps to investigate and respond to any reports from governmental agencies and ccTLD operators of conduct that causes confusion with the corresponding country code in connection with the use of a letter/letter two-character ACSCII domain.”
This too is worded vaguely enough that it could wind up being worthless to governments, many of which are worried about domains matching their ccTLDs being passed off as government-approved.
The Governmental Advisory Committee is split on how worrisome this kind of thing is.
For examples, governments such as Spain and Italy have fought for the right to get to pre-approve the release of “es” and “it” domains, whereas the governments of the US and UK really could not care less.
The most-recent formal GAC advice on the subject, coming out of the July meeting in Helsinki, merely said ICANN should:

urge the relevant Registry or the Registrar to engage with the relevant GAC members when a risk is identified in order to come to an agreement on how to manage it or to have a third-party assessment of the situation if the name is already registered

“It is our belief that that our resolution is consistent with GAC advice,” outgoing ICANN board member Bruce Tonkin said yesterday, noting that nobody can claim exclusive rights over any string, regardless of length.
Before and after the resolution passed, the GAC expressed “serious concern” that the board had not formally responded to the Helsinki communique.
In its Hyderabad communique, issued after yesterday’s vote, the GAC advised the board to:

• Clearly indicate whether the actions taken by the Board as referred to in the resolution adopted on 8 November 2016 are fully consistent with the GAC advice given in the Helsinki Communiqué.
• Always communicate in future the position of the Board regarding GAC advice on any matter in due time before adopting any measure directly related to that advice.

ICANN staff are now tasked with coming up with a way to implement the two-character release.
My sense is that some kind of amendment to Registry Agreements might be required, so we’re probably looking at months before we start seeing two-letter domains being released.

Buy it or lose it? Governments could get first dibs on two-letter domains

Governments and ccTLD registries would get new rights to own two-letter domains in new gTLDs under a proposed ICANN policy.
These highly-prized domains, many of which are likely worth thousands or tens of thousands of dollars, would be subject to a mini sunrise period, under the proposal.
The so-called Exclusive Availability Pre-registration Period would be limited to those companies or government entities in charge of matching ccTLDs.
The measures are outlined in “Proposed Measures for Letter/Letter Two-Character ASCII Labels to Avoid Confusion with Corresponding Country Codes” (pdf), published by ICANN late last week.
The surprisingly succinct document outlines three things new gTLD registries must do if they want to start selling two-letter domains matching ccTLDs, which are currently restricted.
The key measure is:

Registry Operator must implement a 30-day period in which registration of letter/letter two-character ASCII labels that are country codes, as specified in the ISO 3166-1 alpha-2 standard, will be made exclusively available to the applicable country-code manager or government.

In other words, if you’re a government or company listed as the ccTLD manager here, you get 30 days of exclusive opportunity to buy the LL.example matching your ccTLD.
Until now, governments have been able to block the release of LL new gTLD domains matching their ccTLDs.
The new proposal, introduced in an attempt to settle a long-running debate about the most appropriate way to enable the release of two-character strings, appears to add a “buy it or lose it” component to existing policy.
Under the base New gTLD Registry Agreement, all two-character domains were initially reserved.
Then, in late 2014, ICANN said registries could release all letter-number, number-letter and number-number combinations.
Many registries have already released such names, some selling for thousands at auction. When Rightside released its LN/NL/NN names, some carried price tags as high as $50,000.
Letter-letter domains could also be released following a formal registry request to ICANN, but were subject to a 60-day period during which governments could object.
Almost 1,000 new gTLDs have submitted such requests, and almost all have been “partially approved”.
That means some governments objected to the release of ccTLD-matching domains. Over 16,000 unique domain names have been objected to and therefore blocked over the last year or so.
The new proposal would add an extra process under which these blocked domains could be released, with ccTLD concerns getting first rights.
Interestingly, it appears to bring ccTLD managers into the mix, rather than restricting the names simply to governments.
The Governmental Advisory Committee has been the main driving force behind demands for restrictions on LL domains, but the proposed policy appears to also extend rights to private entities.
Remember, many ccTLDs are operated independently by private companies, without local government oversight.
For example, .uk is managed by Nominet, a non-governmental entity. The UK government has blocked many uk.example domains from being registered. The new policy appears to allow either Nominet or the government to register these names.
The one-page proposal is light on some details. It does not say, for example, what happens when the government and the ccTLD manager both want the name.
In keeping with ICANN’s habit of staying out of pricing, it does not specify price caps either.
It does, however, oblige registries to ban registrants from pretending to be affiliated with the relevant government when they are not.
Governments also get to complain, and registries have to investigate, if the relevant domains are causing “confusion”, though registries do not appear to be under a strict obligation to delete or suspend domains.
The policy is open for public comment until August here.

US Congresspeople tell ICANN to ignore GAC “interference”

A bispartisan group of US Congresspeople have called on ICANN to stop bowing to Governmental Advisory Committee meddling.
Showing characteristic chutzpah, the governmental body advises ICANN that advice from governments should be viewed less deferentially in future, lest the GAC gain too much power.
The members wrote (pdf):

Recent reports indicate that the GAC has sought to increase its power at the expense of the multistakeholder system. Although government engagement in Internet governance is prudent, we are concerned that allowing government interference threatens to undermine the multistakeholder system, increasing the risk of government capture of the ICANN Board.

The letter was signed by 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, which is one of the House committees that most frequently hauls ICANN to Capitol Hill to explain itself.
Most of the signatories are from the Republican majority, but some are Democrats.
It’s not entirely clear where they draw the line between “engagement” and “interference”.
The letter highlights two specific pieces of GAC input that the signatories seem to believe constitute interference.
First, the GAC’s objection to Amazon’s application for .amazon. The letter says this objection came “without legal basis” and that ICANN “succumbed to political pressure” when it rejected the application.
In reality, the GAC’s advice was consensus advice as envisaged by the Application Guidebook rules. It was the US government that succumbed to political pressure, when it decided to keep its mouth shut and allow the rest of the GAC to reach consensus.
The one thing the GAC did wrong was filing its .amazon objection outside of the window envisaged by the Guidebook, but that’s true of almost every piece of advice it’s given about new gTLD applications.
Second, the Congresspeople are worried that the GAC has seized for its members the right to ban the two-letter code representing their country from any new gTLD of their choosing.
I’ve gone into some depth into how stupid and hypocritical this is before.
The letter says that it has “negative implications for speech and the world economy”, which probably has a grain of truth in it.
But does it cross the line from “engagement” to “interference”?
The Applicant Guidebook explicitly “initially reserved” all two-letter strings at the second level in all new gTLDs.
It goes on to say that they “may be released to the extent that Registry Operator reaches agreement with the government and country-code manager.”
While the rule is pointless and the current implementation convoluted, it comes as a result of the GAC engaging before the new gTLD program kicked off. It was something that all registries were aware of when they applied for their gTLDs.
However, the GAC’s more recent behavior on the two-letter domain subject has been incoherent and looks much more like meddling.
At the ICANN meeting in Los Angeles last October, faced with requests for two-character domains to be released, the GAC issued formal advice saying it was “not in a position to offer consensus advice on the use of two-character second level domain names”.
ICANN’s board of directors accordingly passed a resolution calling for a release mechanism to be developed by ICANN staff.
But by the time February ICANN meeting rolled around, it had emerged that registries’ release requests had been put on hold by ICANN due to letters from the GAC.
The GAC then used its Singapore communique to advise ICANN to “amend the current process… so that relevant governments can be alerted as requests are initiated.” It added that “Comments from relevant governments should be fully considered.”
ICANN interpreted “fully considered” to mean an effective veto, which has led to domains such as it.pizza and fr.domains being banned.
So it does look like thirteenth-hour interference but that’s largely because the GAC is often incapable of making its mind up, rarely talks in specifics, and doesn’t meet frequently enough to work within timelines set by the rest of the community.
However, while there’s undoubtedly harm from registries being messed around by the GAC recently, governments don’t seem to have given themselves any powers that they did not already have in the Applicant Guidebook.