US government submission to the ICANN Board-GAC meeting on new gTLDs

Below is the full text of what is believed to be the final submission from the US government to ICANN’s Governmental Advisory Committee (GAC) for a special ICANN Board-GAC meeting to be held in Brussels on 28 February-1 March. The US government plays a dominant role in the GAC and until recently was directly overseer of ICANN.

The text is likely to be controversial in several areas:

  • It suggests that any GAC member have an effective veto of any gTLD application
  • It rejects the use of expert third-parties in making decisions over applications
  • It suggests additional criteria for applicants of “community” TLDs
  • It rejects a Board resolution lifting restrictions on cross-ownership
  • It calls for more work to be done on the economic benefits of new gTLDs
  • It asks for a series of additional protections against trademark abuse


USG Submission to the GAC Scorecard re New gTLDs

1. Objections Procedures

Currently, the Proposed Final Applicant Guidebook contains a “Limited Public Interest Objection” meant to provide dispute resolution for proposed strings that could be considered contrary to general principles of international law for morality and public order. The GAC proposes that:

  1. the “Limited Public Interest Objection” procedure be deleted;
  2. the “Initial Evaluation” procedures be augmented to include a GAC review; and
  3. the current “Community-Based” objection procedures be clarified to include those strings that purport to represent or that embody a particular group of people or interests based on historical components of identity as well as particular subject to national regulation.

Specific details and explanations for each step are below.

Limited Public Interest Objection: The GAC advises the ICANN Board to instruct ICANN staff to delete the procedures related to “Limited Public Interest Objections” in Module 3.

Explanation: Although the new heading has been renamed from “Morality and Public Order Objections”, the body of the text remains unchanged and contains the same fundamental flaws which can only be remedied through deletion.

Specifically, the requirement that governments pay fees and must be bound by determinations by the International Centre for Expertise of the International Chamber of Commerce, which will in turn be guided by the findings of “three experts recognized as eminent jurists of international reputation”, is contrary to the sovereign right of governments to interpret and apply principles of international law on a country-by-country basis. Governments cannot be bound by the determinations of private individuals or organizations on matters that pertain to national law.

The requirement is also inconsistent with the provisions in ICANN’s Bylaws that call for governments to provide public policy advice to the ICANN Board through the Governmental Advisory Committee.

Lastly, there are no “generally accepted legal norms relating to morality and public order that are recognized under international principles of law” (Module 3, Article 2, e, iii), nor is it feasible to expect that any panel of “experts” could reach a determination whether a particular proposed new gTLD string would be considered objectionable on such grounds.

String Evaluation: The GAC advises the ICANN Board to instruct ICANN staff to amend the following procedures related to the Initial Evaluation called for in Module 2 to include review by governments, via the GAC. 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. (Note that the application fees should be refunded to the applicant).

Explanation: This proposal meets a number of compelling goals. First it will diminish the potential for blocking of top level domain strings considered objectionable by governments, which harms the architecture of the DNS and undermines the goal of universal resolvability. Second, affording governments the opportunity, through the GAC, to advise the ICANN Board that there is consensus GAC advice regarding particular proposed strings that should not be processed is supportive of ICANN’s commitment to ensure that its decision are in the global public interest.

Categories of Community-based Strings: The GAC advises the ICANN Board to instruct ICANN staff to amend the provisions and procedures contained in Modules 1 and 3 to clarify the following:

  1. “Community-based strings” include those that purport to represent or that embody a particular group of people or interests based on historical components of identity (such as nationality, race or ethnicity, religion or religious affiliation, culture or particular social group, and/or a language or linguistic group). In addition, those strings that refer to particular sectors, in particular those subject to national regulation (such as .bank, .pharmacy) are also “community-based” strings.
  2. Applicants seeking such strings should be required to affirmatively identify them as “community-based strings” and must demonstrate their affiliation with the affected community, the specific purpose of the proposed TLD, and evidence of support or non-objection from the relevant authority/ies that the applicant is the appropriate or agreed entity for purposes of managing the TLD.
  3. In the event the proposed string is either too broad to effectively identify a single entity as the relevant authority or appropriate manager, or is sufficiently contentious that an appropriate manager cannot be identified and/or agreed, the application should be rejected.
  4. Individual governments that choose to file objections to any proposed “community-based” string should not be required to pay fees.

Explanation: The proposed approach would remedy the failure in the draft Applicant Guidebook to incorporate the GAC’s previous advice that ICANN’s new gTLD process should respect the legitimate interests of governments regarding terms with national, cultural, geographic and religious significance. It also anticipates the strong possibility that there will be proposed new gTLD strings for which an appropriate manager cannot be identified and/or agreed, which should cause the application to be rejected. It also recognizes the right of governments to protect their perceived national interests through the Community objections process without the obligation to pay fees.

2. Market and Economic Impacts

The GAC advises the ICANN Board to instruct ICANN staff to amend the final Draft Applicant Guidebook to incorporate the following:

  1. Criteria to facilitate the weighing of the potential costs and benefits to the public in the evaluation and award of new gTLDs.
  2. A requirement that new gTLD applicants provide information on the expected benefits of the proposed gTLD, as well as information and proposed operating terms to eliminate or minimize costs to registrants and consumers.
  3. Due diligence or other operating restrictions to ensure that Community-based gTLDs will in fact serve their targeted communities and will not broaden their operations in a manner that makes it more likely for the registries to impose costs on existing domain owners in other TLDs.

Explanation: The economic studies conducted by Katz, Rosston and Sullivan contain important findings that the past introduction of new gTLDs provided minimal public benefits in terms of competition for existing gTLDs and relieving name scarcity. The studies further state clearly that the introduction of new gTLDs had imposed costs on intellectual property owners in diluted brand strength, defensive registrations, and other costs associated with protecting their brands.

3. Vertical Integration (Registry-Registrar Separation)

The GAC advises the ICANN Board to instruct ICANN staff to amend the proposed new registry agreement to restrict cross-ownership between registries and registries, except in those cases where ICANN has determined that the registry does not have, or is unlikely to obtain, market power. The GAC further advises the ICANN Board that it considers the absence of a thorough and reasoned explanation of its decision, the rationale thereof and the sources of data and information on which the Board relied with respect to vertical integration to be inconsistent with its commitments under the Affirmation of Commitments.

Explanation: The CRA International report commissioned by ICANN noted that vertical integration between registries and registrars could foster both precompetitive and anticompetitive outcomes. As the key issue is whether a gTLD has market power, it would only be appropriate for ICANN to relax or lift restrictions on vertical integration in cases where ICANN determines that a gTLD faces or will face substantial competition.

Further, ICANN has committed to provide a thorough and reasoned explanation of ICANN decisions, the rationale thereof and the sources of data and information on which ICANN relies. This has not been done yet to explain how the Board moved from a position in March 2010, as articulated in a Board resolution, of no cross ownership, to the May 31, 2010 staff proposal contained in draft Applicant Guidebook, version 4 of de minimus (i.e., no more than 2%) cross ownership, to the November 5, 2010 decision allowing full cross ownership.

4. Intellectual Property Protection

The GAC advises the ICANN Board to instruct ICANN staff to amend the provisions related to intellectual property protection as follows:

Trademark Clearinghouse:

  1. Delete the definition of “substantive evaluation” to make it clear that any trademark registration, regardless of whether examined on substantive or relative grounds, can qualify for participation in the pre-launch sunrise mechanisms.
  2. Expand the Trademark Clearinghouse to cover “trademark + keyword” or typographical variations specified by the rights holder.
  3. Ensure that the Trademark Clearinghouse protection mechanism continues after initial launch.

Uniform Rapid Suspension (URS):

  1. Shorten the time for filing an appeal in default cases from the current 2 year review period to a considerably shorter time.
  2. Add a “loser pays” model applicable to domain name registrants.
  3. Include the ability to transfer a domain name, so that the complainant is not forced to pursue a further UDRP proceeding to secure the transfer.

Post-delegation Dispute Resolution Procedure (PDDRP): Amend the standard of proof from “clear and convincing evidence” to a “preponderance of evidence”.

Explanation: These amendments would ensure that all trademark registrations could qualify for participation in the pre-launch sunrise mechanism, and would be consistent with existing best practices (see e.g. the policies for .eu, .tel, and .asia). They will also ensure that the URS provides an effective remedy, and that the PDDRP is consistent with requirements in a civil action for contributory trademark infringement action or unfair competition. Finally, these amendments are necessary to ameliorate the high costs for brand owners, as outlined in the economic analyses by Katz, Rosston and Sullivan.

5. LEA Recommendations

The GAC advises the ICANN Board to instruct ICANN staff to amend the final Draft Applicant Guidebook as follows:

Module 1:

  1. Include other criminal convictions as criteria for disqualification, such as Internet-related crimes (felony or misdemeanor) or drugs.
  2. Assign higher weight to applicants offering the highest levels of security to minimize the potential for malicious activity, particularly for those strings that present a higher risk of serving as venues for criminal, fraudulent or illegal conduct (e.g. such as those related to children, health-care, financial services, etc.)

Module 2:

  1. Add domestic screening services, local to the applicant, to the international screening services.
  2. Add criminal background checks to the Initial Evaluation.
  3. Amend the statement that the results of due diligence efforts will not be posted to a positive commitment to make such results publicly available
  4. Maintain requirements that WHOIS data be accurate and publicly available.

Explanation: These amendments will improve the prospects for mitigating malicious conduct and ensuring that criminal elements are hindered from using the DNS for criminal and illegal activities. The GAC also strongly encourages, and will contribute LEA expertise to this activity, further work on the high level security zone requirements.

[ends]

ICANN CEO and Chairman answer new gTLD and dot-xxx questions

In an in-house interview carried out on the last day of its recent conference in Cartagena, ICANN’s chairman and CEO have answered questions over the Board’s decisions on the new gTLD program and the application for a dot-xxx Internet extension.

Unusually for an in-house video, the interviewer (ICANN’s media director) asks direct questions and so elicits some useful, unprepared responses. You can view the full video in the top-right of this webpage.

New gTLD process

Despite three Board meetings in the past month and a series of recent resolutions that pointed to the Board approving the “applicant guidebook” setting out the rules for new Internet extensions, on the last day of the meeting the Board read out a very long series of resolutions effectively delaying the decision until an unspecified future date.

Chairman Peter Dengate Thrush was asked why this was the case and said the process was “something we are going to do right rather than fast” and said that further delaying approval was the “only responsible thing to do” following “concern from members of community and governments of the world.”

Nevertheless, Dengate Thrush claimed that “most people” were pleased with pleased with the progress that had been made, in particular that the Board has “signaled closing off of subjects” that had been the subject of significant debate for years.

The trademark issue

The largest dispute has been over the issue of trademarks and how to protect them when the Internet is opened to potentially hundreds of new top-level domains. The decision by the Board to bring this discussion to a close lead to a small group of intellectual property lawyers storming out of the public Board meeting exclaiming “unbelievable”.

However, Dengate Thrush said he felt ICANN had done a lot of work to protect trademark holders and that the issue was now closed – or at least would not be reopened. “We have three new independent mechanisms for protecting trademarks,” he said. “And the Board thinks they are probably sufficient – although we may look at how we can tweak or improve those processes.”

While both chairman and CEO are keen to point to progress, a great deal of uncertainty remains over the final rules as well as the possible approval of the dot-xxx top-level domain following a hastily agreed-to special meeting between the Board and the Governmental Advisory Committee (GAC), scheduled for February.

CEO Beckstrom said that the organisation is ready to implement the new gTLD process but felt obliged to add that that was “as long as there is not a major restructure”, leaving open the possibility that the Board will feel obliged to do precisely that following the Board-GAC meeting.

Dengate Thrush’s comments on trademarks also leave the way open for governments to insist on additional changes in that area as well (the trademark issue was raised as one of two main concerns that governments had over the programme at the official Board-GAC meeting in Cartagena). [See all 12 points raised by governments.]

US government anger

Dengate Thrush tried to make light of a very strong letter from the US government, sent to ICANN just days before the recent meeting, in the interview, saying that it was “one of the comments that came in”.

However, he also noted that it will “have to be taken very seriously” and later on acknowledged one of the main criticisms in the letter when he said the Board “could do a better job of explaining our decisions”.

ICANN Board and staff privately told key community members at Cartagena that the letter from the US government did not come as a surprise. However, that claim does not tally with numerous other reports that the relationship between the ICANN Board and US government is at a low point and that the strength of wording was not at all expected.

Cordial relations between Commerce Secretary Strickling and ICANN Chairman Dengate Thrush suffered during an independent review into the organisation’s accountability and transparency in which both men took part. They did not schedule a traditional pre-meeting phonecall and rumour has it that there was an angry private meeting between Strickling and the ICANN Board during the Cartagena meeting itself.

Those tensions will be present at the special Board-GAC meeting, expected some time in February. The meeting would probably be open, said Dengate Thrush: “The standard position of all organisations in ICANN is that they are open – it is part of our commitment to transparency.”

Nonetheless, even on this point, he was unsure, adding, “but if one party thinks it would be best to discuss things in private, we will consider that.”

ICANN and governments

Dengate Thrush sought to explain the complex relationship between ICANN and governments. “One of the rules of ICANN is that we have to take the advice of governments very seriously. They give us advice on matters of public policy – they are experts in that area.”

In respect to the contentious issue of the possible approval of a dot-xxx top-level domain specifically for adult material, the Board and GAC have been slowly but determinedly moving toward a head-on crash.

“We may be about to depart from GAC advice,” Dengate Thrush characterised the decision by the Board to say that it intended to sign a contract with the ICM Registry, the company behind dot-xxx, despite clear GAC reservations. “Maybe we can resolve the issues and maybe having gone through the process we can’t,” Dengate Thrush surmised. “Which is fine, provided we provide reasons as to why we do not follow the advice.”

Rather than see this as a dangerous turn of events however, Dengate Thrush sees it move as a “sign of maturation of ICANN: where we can have disagreement and then move on”.

With just two days scheduled for the GAC-Board meeting and no details likely to emerge until the new year, ICANN’s Board will be hoping that governments, and particularly the US government, will have soaked up a lot of Xmas cheer before they meet.

Governments outline 12 points of gTLD contention with ICANN

At the recent ICANN meeting in Cartagena, the decision was made to hold a subsequent special meeting between the Board and Governmental Advisory Committee (GAC) some time in February 2011 in an effort to discuss and reach agreement on a raise of issues that governments have with the planned liberalisation of the top-level domain space.

The GAC produced a list of 12 issues that it wishes to discuss at the meeting, contained within its official end-of-meeting communiqué [pdf]. Those issues are listed below:

  • The objection procedures including the requirements for governments to pay fees
  • Procedures for the review of sensitive strings
  • Root Zone Scaling
  • Market and Economic Impacts
  • Registry – Registrar Separation
  • Protection of Rights Owners and consumer protection issues
  • Post-delegation disputes with governments
  • Use and protection of geographical names
  • Legal recourse for applicants
  • Providing opportunities for all stakeholders including those from developing countries
  • Law enforcement due diligence recommendations to amend the Registrar Accreditation Agreement as noted in the Brussels Communiqué, and
  • The need for an early warning to applicants whether a proposed string would be considered controversial or to raise sensitivities (including geographical names).

Governments sidestep fight over multi-stakeholder Internet

Governments carefully sidestepped a fight over how the Internet should be governed earlier today in Geneva by appearing to compromise with groups representing business, civil society, and the technical community.

A victory of sorts came with the inclusion of 20 non-government actors in a crucial working group that will decide the future of the annual Internet Governance Forum (IGF), as well as agreement that any recommendations from the group would require consensus.

However, through careful meeting management, governments still retained a majority in the working group and held on to an earlier resolution that the group would be made up solely of government representatives: the twenty new representatives will be there only at the invitation of the working group chair.

The effect of this maneouvering was to postpone an argument over the “multi-stakeholder” nature of the Internet governance until a later date. However, with a subset of governments having already demonstrated their willingness to make a snap decision to exclude others, the fact that the inclusion of non-governments rests on the chair’s discretion will unnerve many.

After five years of working alongside governments in the IGF, other stakeholders had begun to build a level of trust and understanding in Internet governance issues that has been badly damaged by recent efforts of a number of governments – led by China – to exclude them through procedural games.

As previously explained, the functioning of the IGF, as well as the working group that will decide changes to its approach, is a proxy for a bigger fight over how much control governments should have in the future development of the Internet.

China in particular has used its rising influence in the United Nations to push for a more inter-governmental approach, focusing on security, and persuading the G77 group of developing countries that its interests will be better served by pulling existing Internet governance mechanisms under the UN umbrella.

On the other side of the argument are developed countries, business, Internet organisations, and the majority of civil society and academia – all of whom point to the non-geographic nature of the Internet and the clear advantages that allowing the network’s evolution to be decided outside of traditional inter-governmental structures has had.

This difference in philosophy came to a head when a sudden, late-night meeting of the UN Commission on Science and Technology for Development (CSTD) last week saw a quorum of governments decide to allow only governments into the working group for deciding the future of the IGF. Many pro-multi-stakeholder governments were caught off-guard and most non-governmental representatives were present at a meeting of ICANN in Cartagena, on the other side of the globe. When news of the decision reached Colombia, Internet organisations were incensed and a number of government representatives apologised for the “step backward”.

A summary of the CSTD meeting, since made available [pdf], provides scant details of the unusual meeting but does include the note that Portugal and the United States were strongly opposed to the resolution and argued that a multistakeholder approach was crucial to the IGF.

Underscoring the depth of feeling over Internet governance, an apparent plan to cement the CSTD’s government-only resolution by holding its first meeting just a week later was met with an extraordinary response by the broader Internet community.

Within 24 hours, a number of large non-governmental actors, including ICANN, the Internet Society (ISOC), regional Internet registry APNIC, and country registry operators AuDA and Nominet responded with a terse letter [pdf] to the CSTD’s chair and vice-chair.

A petition organised by ISOC gathered over 2,000 signatures in under a week, and a strongly worded blog post by Google representative and “Father of the Internet” Vint Cerf entitled “Governments shouldn’t have a monopoly on Internet governance” added to the weight of response.

The argument moved within days to another meeting discussing the future of the IGF at UN headquarters in New York where the CSTD decision was frequently raised and criticised. However, Chinese diplomat and chair Sha Zukang refused to consider the complaints stating that it followed from a different procedure to the meeting he was chairing.

Nevertheless, governments felt the public and private pressure and held a closed-doors meetings – kicking out all non-government representatives – just prior to the open meeting in Geneva today. At that meeting, it was decided that the multistakeholder nature of the IGF had to be recognised to prevent a dangerous split between governments and non-governments.

The public meeting then saw a variety of different models put forward, including the creation of a number of different task forces, and a smaller number of representatives from non-governments. In the end, the chair’s proposal of 20 non-government actors was accepted but only after an increase in the number of government representatives to 22, providing a majority.

And so, the fight for a government-only versus a broader Internet governance mechanism continues.

The one big winner of this latest spat however appears to be the technical community which was recognised separately for the first time in the IGF process, in response to its recognition by the International Telecommunication Union (ITU) at its Plenipotentiary last month.

Governments sidestep fight over multi-stakeholder Internet

Governments carefully sidestepped a fight over how the Internet should be governed earlier today in Geneva by appearing to compromise with groups representing business, civil society, and the technical community.

A victory of sorts came with the inclusion of 20 non-government actors in a crucial working group that will decide the future of the annual Internet Governance Forum (IGF), as well as agreement that any recommendations from the group would require consensus.

However, through careful meeting management, governments still retained a majority in the working group and held on to an earlier resolution that the group would be made up solely of government representatives: the twenty new representatives will be there only at the invitation of the working group chair.

The effect of this maneouvering was to postpone an argument over the “multi-stakeholder” nature of the Internet governance until a later date. However, with a subset of governments having already demonstrated their willingness to make a snap decision to exclude others, the fact that the inclusion of non-governments rests on the chair’s discretion will unnerve many.

After five years of working alongside governments in the IGF, other stakeholders had begun to build a level of trust and understanding in Internet governance issues that has been badly damaged by recent efforts of a number of governments – led by China – to exclude them through procedural games.

As previously explained, the functioning of the IGF, as well as the working group that will decide changes to its approach, is a proxy for a bigger fight over how much control governments should have in the future development of the Internet.

China in particular has used its rising influence in the United Nations to push for a more inter-governmental approach, focusing on security, and persuading the G77 group of developing countries that its interests will be better served by pulling existing Internet governance mechanisms under the UN umbrella.

On the other side of the argument are developed countries, business, Internet organisations, and the majority of civil society and academia – all of whom point to the non-geographic nature of the Internet and the clear advantages that allowing the network’s evolution to be decided outside of traditional inter-governmental structures has had.

This difference in philosophy came to a head when a sudden, late-night meeting of the UN Commission on Science and Technology for Development (CSTD) last week saw a quorum of governments decide to allow only governments into the working group for deciding the future of the IGF. Many pro-multi-stakeholder governments were caught off-guard and most non-governmental representatives were present at a meeting of ICANN in Cartagena, on the other side of the globe. When news of the decision reached Colombia, Internet organisations were incensed and a number of government representatives apologised for the “step backward”.

A summary of the CSTD meeting, since made available [pdf], provides scant details of the unusual meeting but does include the note that Portugal and the United States were strongly opposed to the resolution and argued that a multistakeholder approach was crucial to the IGF.

Underscoring the depth of feeling over Internet governance, an apparent plan to cement the CSTD’s government-only resolution by holding its first meeting just a week later was met with an extraordinary response by the broader Internet community.

Within 24 hours, a number of large non-governmental actors, including ICANN, the Internet Society (ISOC), regional Internet registry APNIC, and country registry operators AuDA and Nominet responded with a terse letter [pdf] to the CSTD’s chair and vice-chair.

A petition organised by ISOC gathered over 2,000 signatures in under a week, and a strongly worded blog post by Google representative and “Father of the Internet” Vint Cerf entitled “Governments shouldn’t have a monopoly on Internet governance” added to the weight of response.

The argument moved within days to another meeting discussing the future of the IGF at UN headquarters in New York where the CSTD decision was frequently raised and criticised. However, Chinese diplomat and chair Sha Zukang refused to consider the complaints stating that it followed from a different procedure to the meeting he was chairing.

Nevertheless, governments felt the public and private pressure and held a closed-doors meetings – kicking out all non-government representatives – just prior to the open meeting in Geneva today. At that meeting, it was decided that the multistakeholder nature of the IGF had to be recognised to prevent a dangerous split between governments and non-governments.

The public meeting then saw a variety of different models put forward, including the creation of a number of different task forces, and a smaller number of representatives from non-governments. In the end, the chair’s proposal of 20 non-government actors was accepted but only after an increase in the number of government representatives to 22, providing a majority.

And so, the fight for a government-only versus a broader Internet governance mechanism continues.

The one big winner of this latest spat however appears to be the technical community which was recognised separately for the first time in the IGF process, in response to its recognition by the International Telecommunication Union (ITU) at its Plenipotentiary last month.