Author’s Foreword

Although this article was first published just a few days ago, on May 8th, there have been several important intervening developments.

First, on May 10th ICANN released a News Alert on “NGPC Progress on GAC Advice” that provides a timetable for how the New gTLD program Committee will deal with the GAC Communique.ⁱⁱⁱ Of particular note is that, as the last action in an initial phase consisting of “actions for soliciting input from Applicants and from the Community’, the NGPC will begin to “Review and consider Applicant responses to GAC Advice and Public Comments on how Board should respond to GAC Advice re: Safeguards” on June 20th. This will be followed by a second phase consisting of “actions for responding to each advice given by the GAC”, including development of “a GAC scorecard similar to the one used during the GAC and the Board meetings in Brussels on 28 February and 1 March 2011”.

In regard to how this may affect the timeline for introduction of new gTLDs, the Alert notes, “Part 2 of the Plan is not yet finalized and, with respect to some of the advice, cannot be finalized until after the review of the Public Comments due to be completed on 20 June.” Thus it is impossible to know at this point in time how much delay ICANN’s response to the GAC Communique may create for the introduction of new gTLDs, especially for those subject to the additional or further targeted safeguards for stings related to regulated industries and professions—although the outlook seems to generally adhere to the projections made in the article. I would guesstimate that some strings affected solely by the GAC’s basic safeguards could launch in the third quarter of 2013, while those encompassed by the additional safeguards probably face delay until the last quarter of the year at a minimum. The next meeting of the NGPC takes place on May 18th in Amsterdam, where “Resolution(s) on GAC Advice” is on the agendaⁱⁱ; any such Resolutions are more likely to be procedural than substantive—with substantive reaction, much less implementation, waiting until after GAC interaction with the Board at the mid-July ICANN meeting in Durban.

Of course, regardless of how ICANN deals with the Communique, no new gTLDs can launch until the standard Registry Agreement (RA) is made final and adopted by the Board (and it may require yet further amendment to implement GAC safeguards and other advice)—and the same steps are completed for the revised Registrar Accreditation Agreement (RAA) if, as seems likely, only registrars adopting the revised RAA will be permitted to provide domain registration services for new gTLDs.

Second, on May 10th ICANN also released a video interview—“GAC Chair Heather Dryden on the Beijing Communiqué and New gTLD Advice”ⁱⁱⁱ—in which Chairwoman Dryden makes some significant assertions:

• The safeguard advice was not an attempt to impose new obligations on registry operators but about pre-existing obligations and applicable law, and should therefore be viewed as implementation rather than new policy.
• The GAC is not suggesting a new global regulatory regime but measures that are consistent with ICANN’s existing role. Responding to questions posed by Brad White, ICANN’s Director of Global Media Relations, Ms. Dryden explained:
• It’s really not intended to impose a new global regulatory regime. It is intended to be consistent with ICANN’s existing role and serve as a reminder to those that have applied of what is really involved with implementing if they are successful a string globally as well as really wanting to emphasize that some of those strings raise particular sensitivities for governments
• The GAC believes there must be a good reason to permit exclusive registrations at a generic gTLD and encourages community discussion of the proper “public interest’ standard.
• The GAC does not view the Communique as 11th hour advice but as a more detailed reiteration of general advice on gTLD string categorization that was not taken. The Communique is utilization of a standard ICANN mechanism consistent with the GAC’s primary role of advising on public policy aspects of ICANN actions.
• On the overarching political considerations that will color ICANN’s response to the Communique—If ICANN were to ignore the GAC advice many governments would question the usefulness of the GAC and their continued participation in and support of ICANN. Ms. Dryden stated: WHITE: Suppose the [ICANN] board in the end says “thank you very much for the advice, we’ve looked at it, but we’re moving on” and basically ignores a lot of that advice? DRYDEN: I think it would be a very immediate reaction, questioning the value of participating in the Governmental Advisory Committee. If it is going to be the place for governments to come and raise their concern and influence the decision making that occurs at ICANN then we have to be able to demonstrate that the advice generated is fully taken into account or to the maximum extent appropriate taken in and in this way governments understand that the GAC is useful mechanism for them. ... WHITE: What you seem to be saying is there is concern about whether or not some governments might pull out from that multi-stakeholder model? DRYDEN: Right, right why would they come? How would they justify coming to the GAC meetings? Why would they support this model if in fact it’s there aren’t channels available to them and appropriate to their role and perspective as a government?
• The GAC’s priorities for the July ICANN meeting in Durban are the fourteen strings specifically identified as requiring further consideration, as well as implementation of the proposed safeguards. Ms. Dryden explained: There may well also be aspects of safeguard advice that we would discuss further with the board or with the community or would need to, particularly the implementation aspects of some of the new safeguards that the GAC identified.

Chairwoman Dryden also concedes that the GAC advice may have been misunderstood because it was developed behind closed doors and therefore deprived members of the ICANN community of an opportunity to better understand the GAC’s concerns and reasoning, and she appears to pledge that the GAC will operate with greater transparency in the future.

In addition to providing useful background on the GAC’s thinking, the interview also reiterates that if ICANN fails to provide adequate response to the Communique it risks disengagement from the ICANN model by GAC member nations. In addition to providing an opportunity for demonstrating effective self-regulation, reasonable implementation of the safeguards can also head off more onerous top-down legislative and regulatory approaches. Imagine, for example, if in the absence of a meaningful response by ICANN to the GAC the European Community (EC) were to adopt legislation that incorporates the safeguards as a prerequisite for the sale of new gTLD domains by registrars operating in the Community as well as for the transaction of online business with EC consumers by their registrants?

Finally, initial public comments on the safeguards have started to be posted.iv Predictably, some support various elements while others urge rejection on the grounds that the Communique consists of tardy and ill-defined changes in policy that are at odds with the multi-stakeholder model.

Notwithstanding some negative comments and related press treatment, the overarching politics of the situation will almost surely result in a very serious ICANN process for considering the proposed safeguards and other components of the Communique, and seeking to implement them in a manner that is effective but does not impose undue or inappropriate burdens on contracted parties while maintaining ICANN’s role as technical manager of the DNS in a manner that respects and enforces existing public policy but does not usurp roles that belong to legislators and regulators. New gTLD applicants, other members of the ICANN community, and interested third parties have an opportunity to influence ICANN’s further consideration and implementation of the GAC advice over the next several months.

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NEW TOP-LEVEL DOMAINS

(Synopsis) The Governmental Advisory Committee communique and responsive requests for comments provide an opportunity for everyone involved with the Internet Corporation for Assigned Names and Numbers and every interest affected by the new TLD program to submit final input on its proposed framework for the launch of new TLDs, the author writes. The added steps will likely cause delays and impose new duties, but will also provide a blueprint for ICANN and registry operators to work cooperatively with the global public sector in decades to come.

* * *

On the afternoon of April 11, 2013, the last day of ICANN’s 46th Public Meeting in Beijing, China, its Governmental Advisory Committee (GAC) issued a long and detailed communique with significant implications for the approximately 1,400 unique applications submitted to ICANN’s new TLDs program—and, based upon its implementation response, for ICANN itself.

The communique—the end product of a week of intense work undertaken by more than 100 participants from governments attending and engaging in the Beijing meeting—was foreshadowed by a March 31 GAC announcement¹ that GAC meetings in Beijing would focus on “controversial or sensitive strings and applications,” with sessions organized on “safeguard advice on the basis of categories of strings” and “GAC advice/objections on specific applications.”

While the GAC has reverted to holding closed door meetings—excessively in our view, within an ICANN organization dedicated to transparency and accountability—during the days before the ICANN meeting and its initial days, the GAC did reach out. The GAC met with many parties, including the GNSO Council charged with TLD policy matters, the Commercial Stakeholder Group, the ICANN Board of Directors, and others.

The GAC was striving to deliver its input before the Beijing meeting concluded. The communique arrived in the middle of the Beijing Public Forum, where individuals directly address the ICANN Board on relevant topics.

The communique elicited immediate outcry from some that its proposals constituted major changes in the rules of the new TLD game after the game had begun, would cause undue delay, fostered internet censorship—and that it should be subject to public comment. But it received support from others who believe that the GAC is best positioned to address public interest issues implicated by ICANN activities. Further, many of the issues addressed by the GAC were not clearly evident until after the sheer volume and relevant specifics of new TLD applications had been fully digested.

ICANN’s Unprecedented Move

In a somewhat unprecedented move, ICANN acquiesced to the call for public comments and is even requesting two separate types.

First, on April 19, new TLD applicants were advised that they were being provided with 21 days, until May 10, to respond to the GAC advice.²

That notice, as well as the official “GAC Advice Response Form for Applicants,” takes a wide open approach. The notice provides no guidance on how feedback should be structured, such as whether applicants should critique the advice, outline how they intend to comply with it, or both. The attached form asks only for the applicant’s name, ID number, and applied for string—followed by “Response:” and a blank space to fill.

Shortly thereafter, on April 23, ICANN published a general notice of request for public comment from any interested party on “New TLD Board Committee Consideration of GAC Safeguard Advice,” with an initial comment deadline of May 14 and a subsequent reply period closing on June 4.³

The explanation of the general public comment invitation provides this background:
On 11 April 2013, the Governmental Advisory Committee issued its Beijing Communique´ in which it provided advice on New TLDs. The Board New gTLD Committee, acting on behalf of the full Board, will now consider how to address the GAC Advice. To help inform this process, the Committee has directed staff to solicit comment on how it should address one element of the advice: safeguards applicable to broad categories of New gTLD strings. Accordingly, ICANN seeks public input on how the Board New gTLD Committee should address section IV.1.b and Annex I of the GAC Beijing Communique´.

As can be seen, the scope of comment being solicited from the general public is circumscribed, with requested input limited to the portions of the communique proposing “safeguards”—although many commenters will likely ignore that restriction and address other portions as well.

Again, ICANN has provided no further refinement of the request for comment, giving no indication as to what feedback would be most useful to the Board’s new TLD program committee. This unique and noteworthy approach may well result in feedback being received from parties not normally engaged with or active within the ICANN community.

Those most directly affected by the GAC advice, new TLD applicants, may well choose to participate in both their exclusive comment forum as well as this general one—especially as the reply period for the latter extends to nearly four weeks past their own May 10 cutoff date—if they are willing to make their responses public.

Potential Implications

Before getting into the specifics of the GAC safeguard advice, the following are some guesses about the implications and effects that will flow from it.

Timing of New TLD Introductions

From now until the end of the July 14-18 ICANN meeting in Durban, South Africa, the ICANN community will consider and react to the GAC Advice.

The time from Durban until the final meeting of 2013, November 17-21 in Buenos Aires, Argentina, will likely be the period of ultimate determination as to how much of it will be accepted by ICANN’s Board, followed by implementation on the part of both ICANN and applicants.

ICANN’s new TLD program committee, composed of non-conflicted Board members, has scheduled discussion of a “Plan for responding to the GAC advice issued in Beijing” as the only agenda item for its May 8 meeting.⁴ But substantive reaction is likely to await receipt and consideration of applicant and public feedback as well as staff analysis of both the communique and the comments.

As the GAC wants all new TLD safeguards to be subject to “contractual oversight” by ICANN it is highly probable that additional amendments to the proposed new TLD Registry Agreement (RA) will need to be drafted and put out for public comment prior to final adoption, adding some additional delay to the rollout of new TLDs.

Registry Operator Responsibilities

Acceptance of even portions of the GAC advice will likely impose duties on registry operators to update and strengthen their terms of service.

Registries will also need to submit or update Public Interest Commitments Specifications (PICS), and assume registrant monitoring and coordination duties with regulators and industry bodies that they probably did not envision or price into their business model.

Requirements that registries immediately suspend domains in certain circumstances could re-ignite “domain censorship” due process concerns that last flared during the PIPA/SOPA internet blackout.

Role of Governments at ICANN

ICANN’s and key stakeholders’ reactions to the GAC communique may well determine whether governments remain engaged in and embracing of the ICANN multistakeholder model—or begin to drift away.

Internet governance options exist outside of ICANN that are generally less favorable to and welcoming of contracted parties, business, and civil society. A multi-governmental shift away from ICANN would connote negative long-term implications for its existence. It could also eventually subject the DNS to a maze of disparate national laws and policies or the more worrisome specter of intergovernmental oversight far more intrusive than GAC advice.

ICANN, with the acquiescence of its multistakeholder community, will ultimately adopt a majority of the GAC recommendations in some form as doing so is in its long-term institutional interest.

Overall, the receipt of the GAC communique and ICANN’s solicitation of applicant and public comments on it marks an inflection point for the organization, and the manner in which it assimilates the advice and the responsive feedback will define its working relationships with governments through the end of the decade, and perhaps beyond.

In their video interview at the conclusion of the Beijing meeting, Board Chairman Steve Crocker stated that the communique raised “interesting issues that have to be dealt with, and we’ll be quite thorough about it.” CEO Fadi Chehade committed that action would be taken only following consideration of public comment from the “entire community” along with staff analysis.

As it is not at all customary to subject GAC advice to direct public comment, this will be politically sensitive, complicated, and highly detailed work invoking multiple judgment calls.

New TLD Advice on Which ICANN Has Not Requested General Public Comment

The April 18 notice to new TLD applicants solicits feedback on every aspect of the GAC communique, with applicant responses to be published and provided to the full ICANN Board.

However, it is not clear whether individual applicant responses will be made public. Should any applicant respond to the GAC by seeking to file a PICS—which raises the collateral question of whether ICANN will waive the previously expired deadline for PICS submissions—those filings are made public at the updated application status page of the new TLDs website.

GAC advice affecting new TLD strings on which applicant feedback is being explicitly solicited, but general public response is not, includes:

Targeted Advice

Targeted advice against proceeding further on a specific application for .africa and one for .gcc, as well as on applications for .islam and .halal; and advice not to proceed beyond initial evaluation for two Chinese Internationalized Domain Name (IDN) strings (.shenzhen and .guangzhou) as well as the applications for .persiangulf, .amazon (and related IDNs in Japanese and Chinese), .patagonia, .date, .spa, .yun, .thai, .zulu, .wine, and .vin.

Written Briefing

The GAC’s request for “a written briefing about the ability of an applicant to change the string applied for in order to address concerns raised by a GAC Member and to identify a mutually acceptable solution.”

Such a briefing should also be made publicly available, as this is a critical issue for applicants and the general public because it relates to the central question of whether and the extent to which an applicant can amend its application to comply with a relevant GAC safeguard if it is adopted by ICANN.

Community Support

The GAC’s view on community support for applications, in which it advises “that in those cases where a community, which is clearly impacted by a set of new TLD applications in contention, has expressed a collective and clear opinion on those applications, such opinion should be duly taken into account, together with all other relevant information.”

That seems elementary, yet it fails to resolve ongoing disputes about whether or not certain strings legitimately fall into the “community” category, as well as who can legitimately claim to speak for the impacted community.

Singulars Versus Plurals

The GAC’s belief that “singular and plural versions of the string as a TLD could lead to potential consumer confusion” and the consequent advice that the Board should “Reconsider its decision to allow singular and plural versions of the same strings.”

This is a reaction to the February 26 decision of ICANN’s string similarity panel that singulars and plurals of the same term did not create a probability of visual similarity confusion, a conclusion that many have categorized as clueless, as well as something that is likely to receive general public comment notwithstanding it falling outside the “safeguard’ category.

At the Board-GAC interaction in Beijing, the Board advised the GAC that it would not second guess the Panel’s conclusion and that “the ball is now in your [the GAC’s] court.”

The GAC has now forcefully tossed the ball back to the Board. Some ICANN constituencies have already weighed in with the view that singular and plural versions of a string should be placed in the same contention set.

IGO Protections

Reiteration of prior advice that “appropriate preventative initial protection for the IGO [Intergovernmental Organizations] names and acronyms on the provided list be in place before any new TLDs would launch.”

The RAA

Advice that “the 2013 Registrar Accreditation Agreement should be finalized before any new TLD contracts are approved’ with the notation that “The GAC also strongly supports the amendment to the new TLD registry agreement that would require new TLD registry operators to use only those registrars that have signed the 2013 RAA.”⁵

IOC/Red Cross Protections

Strong advice that ICANN should “amend the provisions in the new TLD Registry Agreement pertaining to the [International Olympic Committee/Red Cross-Red Crescent] IOC/RCRC names to confirm that the protections will be made permanent prior to the delegation of any new TLDs.

PICs

A request for “more information on the Public Interest Commitments Specifications [PICS] on the basis of the questions listed in annex II.”

These GAC-posed questions may become critical matters to be addressed, especially for applicants seeking strings in categories raising heightened GAC concerns as well as for third parties concerned by those applications. The questions raised in Annex II are addressed later in this article.

Annex I – The GAC’s Proposed Safeguards

Annex 1 of the communique addresses “Safeguards on New TLDs” with introductory advice that “The GAC considers that Safeguards should apply to broad categories of strings. For clarity, this means any application for a relevant string in the current or future rounds, in all languages applied for.”

The GAC is clearly stating that its advice should be interpreted and implemented broadly, not narrowly. This introduction further advises that all the proposed safeguards should “be implemented in a manner that is fully respectful of human rights and fundamental freedoms,” “respect all substantive and procedural laws under the applicable jurisdictions,” and “be operated in an open manner consistent with general principles of openness and nondiscrimination.”

None of that seems particularly objectionable, but even this hortatory language raises such interpretative questions as to what are the “applicable jurisdictions” for a particular string—and how should operation in an open manner be squared with later admonitions relating to strings related to regulated industries and professions where domain registrations are to be circumscribed?

Safeguards Applicable to All New TLDs

The first detailed section of the advice proposes that six specific safeguards be applicable to all TLDs and “be subject to contractual oversight” by ICANN.

At a minimum, to the extent that ICANN accepts any of this it will then need to review the existing new TLD Registry Agreement (RA)—already the subject of some controversy, especially in regard to whether ICANN should have some unilateral right to amend it—and determine whether further amendments are needed to incorporate any parts of the GAC advice that are adopted.

As ICANN is not a governmental body and all of its powers over registries and registrars are derived via contractual enforcement, this is no small matter.

On April 29, ICANN published the Proposed Final New TLD Registry Agreement for public comment, open through June 11.⁶ Yet, except in the highly unlikely event that ICANN rejects all of the GAC’s safeguards proposals, adoption of any of them would seem to inevitably require further amendment of the RA to spell out related, contractually enforceable registry obligations—with such further amendment triggering yet another period of public comment.

Further, as the following analysis illustrates, the question for ICANN’s Board is not just whether to accept a particular safeguard but how to implement it in a manner that is effective yet reasonable. Determining the right balance will take time.

Six Basic Safeguards

The GAC’s proposed six basic safeguards are:

1. WHOIS Verification and Checks

Registry operators are to conduct statistically significant checks at least twice a year on false, inaccurate, and incomplete WHOIS registrant identification data, and notify registrars of inaccurate or incomplete data.

This appears to impose proactive oversight and enforcement duties that registry operators were probably not contemplating. It also implicates matters addressed by the just-released-for-comment final Registrar Accreditation Agreement, as well as ongoing discussions focused on increasing WHOIS registrant data accuracy. All of these approaches must ultimately be reconciled and coordinated.

2. Mitigating Abusive Activity

Registrant terms of use must “include prohibitions against the distribution of malware, operation of botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law.”

No one can be in favor of such activities, but that begs the questions of whether this imposes some affirmative oversight duty on registry operators, and what steps they should take to monitor compliance with and enforce such prohibitions. Also, in some instances the issue of whether a violation has occurred may not be discernible absent other adjudicative processes.

Trademark infringement, for example, is already the subject of the UDRP and national laws. It will also be addressed by the two new rights protection mechanisms—the trademark clearinghouse and uniform rapid suspension system in new TLDs—but all these mechanisms require some judicial or expert determination of where infringement has actually occurred.

Digital copyright infringement is an evolving and muddled area of the law in which courts in the same nation have reached sharply divergent opinions on similar fact patterns. While some “piracy’ may be evident from a cursory review of a website, other alleged instances invoke unsettled legal issues. Ultimately, the question is whether registry operators should wait on law enforcement authorities or adjudicative processes to verify legally actionable harm, or take their own initiatives to identify and halt it.

3. Security Checks

In a bow to law enforcement concerns, registry operators are to periodically conduct technical analyses of whether domains are being used to perpetrate security threats “such as pharming, phishing, malware, and botnets,” all the while “respecting privacy and confidentiality.” Such information is already available from various industry groups, with existing registry operators typically engaged in these initiatives. In addition, the new TLD registry application process already includes security checks.

Nonetheless, this could require registries to take on proactive, quasi-police cybersecurity inquiries. More disturbingly, where security risks posing “an actual risk of harm” are identified, registry operators must notify the relevant registrar. If the registrar fails to “take immediate action” then the registry operator must “suspend the domain name until the matter is resolved.”

This recommendation is almost sure to be controversial, as domain suspensions are widely viewed as equivalent to internet censorship. The notion that private parties will do this on their own accord, absent any due process requirements, and with no additional definition as to how or by whom the matter will ultimately be resolved, raises significant questions concerning registrant rights.

4. Documentation

Registry operators are to maintain statistical reports on inaccurate WHOIS records or security threats and provide them to ICANN on request. This advice does not seem particularly burdensome or controversial.

5. Making and Handling Complaints

Registry operators must have a mechanism for other parties to submit complaints about domains with inaccurate WHOIS information or domains being used to facilitate bad acts. This safeguard, motivated by growing concerns in regard to cybercrime, fraud, and abuse, is not particularly burdensome, either.

But questions remain unanswered: What is the registry operator’s duty to further investigate such complaints, and what action should be taken if it finds them well-founded? Will ICANN’s compliance staff have an intermediary role in this area?

6. Consequences

Registry operators must, “consistent with applicable law”—to the extent it exists or is clear—“ensure that there are real and immediate consequences for “domains with false WHOIS violations or being used in breach of “applicable law,” and “these consequences should include suspension of the domain name.”

Domain suspension, as was seen during the PIPA/SOPA debate, is viewed by many as synonymous with internet censorship, and the requirement that registry operators assume policing oversight powers may well generate substantial controversy. The requirement may also trigger discussion of the existence and adequacy of due process protections and a defined appeals process for affected registrants.

In sum, the six basic safeguards call for various oversight and investigative responsibilities that many registry operators may not have contemplated when they constructed their business plans.
Their implementation also may imbue registry operators with certain additional domain enforcement powers that in turn raise related due process questions.

To some extent, these recommendations may be an attempt by fiscally-strapped governments to place the costs of policing and subduing negative externalities resulting from new TLDs back onto registry operators, minimizing the need for potential allocation of substantial new public sector resources focused on law enforcement and cybersecurity.

Additional Safeguards for Particular Categories of New TLDs

Beyond those six basic safeguards recommended for all new TLDs, the GAC prescribes additional safeguards for strings related to regulated or professional sectors for which end users generally anticipate targeted protections.

The communique states:

Strings that are linked to regulated or professional sectors should operate in a way that is consistent with applicable laws. These strings are likely to invoke a level of implied trust from consumers, and carry higher levels of risk associated with consumer harm.

The dozen sectors identified by the GAC for application of these additional safeguards, accompanied in the communique by a non-exhaustive list of TLD applications asserted to fall within them, are:

children,
environmental,
health and fitness,
financial,
gambling,
charity,
education,
intellectual property,
professional services,
corporate identifiers,
generic geographic terms, and
inherently governmental functions.

One may certainly question why certain TLD applications made the GAC’s nonexclusive list or have been placed in particular categories.

For example, .free, .gratis, .discount and .sale are all placed in the intellectual property category even though they might attract domains with no relationship to goods and services of a primarily IP nature. And .law is given its own separate listing rather than being placed in the professional services category along with .abogado, .attorney, .lawyer and .legal.

But, for the present purpose of this analysis, all the specifically listed applications are potentially subject to the additional safeguards depending on follow-up ICANN action. Other applicants with any possible relationship to the identified sectors should presume that they may be similarly affected before this process concludes. Those applicants, along with parties with concerns about or opposed to specific strings, should thoroughly review this advice.

Proposed Additional Safeguards for Regulated, Professional Sectors

The additional safeguards proposed for regulated and professional sectors—accompanied by some observations—are:

1. Applicable Use Policies.

Registry operators will include in their acceptable use policies a requirement that registrants comply with all applicable laws, including those that relate to privacy, data collection, consumer protection, fair lending, debt collection, organic farming, disclosure of data, and financial disclosures.

It seems axiomatic that registry operators must be in compliance with applicable laws of all types.

However, the questions raised again by such general use policies is to what extent a registry operator will be expected to proactively police and directly enforce them, and what are the applicable laws for a particular domain registrant?

What is a registry operator expected to do, for example, if a registrant is accused of operating in violation of a particular nation’s laws and the registrant responds that under applicable principles for determining jurisdiction it is not subject to those laws? These are roles and decisions that have traditionally been delegated to law enforcers, regulators, and judicial forums, not to private parties lacking adjudicative expertise under contract to a nonprofit corporation.

2. Notifications.

Registry operators will require registrars at the time of registration to notify registrants of this requirement.

This is a relatively straightforward requirement to implement, although it will require registrars to identify and separate out affected TLDs and provide additional disclosures at or in close proximity to the time of domain registration.

It also highlights the fact that it is registrars, not the registry operators of new TLDs, who have direct contact and contractual relations with registrants. To the extent that registrars of particular TLDs are tasked with going beyond offering a simple domain purchase interface to registrants, and must provide and obtain acceptance of particular disclosures—much less ascertain that registrants satisfy relevant registration eligibility criteria—this will both complicate the domain registration process and generate costs that must be reflected in compensation arrangements with the registry operator as well as in the prices charged to registrants.

The only exception to the registrar standing as a separate intermediary between the registry operator and the registrant will be those instances in which the registry operator has directly affiliated with a registrar, now that ICANN has relaxed the former prohibition against such relationships—although, even then, for all but “.brand” or whatever other “closed generic” TLDs are permitted, there will likely be many unaffiliated registrars offering identical domain registration and renewal services for the TLD.

3. Security for Sensitive Data.

Registry operators will require that registrants who collect and maintain sensitive health and financial data implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law and recognized industry standards.

While clearly having direct bearing on registrants at strings falling within the health and fitness and financial categories, this safeguard may also implicate others—as an example, at such professional services strings as .accountant(s), .doctor, and .realtor, where registrants will likely collect and maintain confidential health and financial data.

Again, the more difficult issues are what are the “reasonable and appropriate security measures” that registrants should implement to safeguard such data, what monitoring and enforcement duties are expected of registry operators to assure compliance, and what constitutes the “applicable law and recognized industry standards’ that should be looked to in establishing relevant security measures?

The proper standards for protection and disclosure of sensitive digital data remain one of the most hotly debated matters of 21st century cyberlaw and policy, with sharp disagreements between governments and with and within affected industries—yet registry operators are being asked to require the implementation of responsive security measures by their registrants.

4. Working Relationships.

Establish a working relationship with the relevant regulatory, or industry self-regulatory, bodies, including developing a strategy to mitigate as much as possible the risks of fraudulent, and other illegal, activities.

For registry operators of TLDs falling within the listed sectors this would require an ongoing, perpetual establishment of a “working relationship”—but with whom? As one example, with what financial regulatory authorities and industry self-regulatory bodies located in which nations must the operator of .retirement establish a working relationship?

Is it to be based upon the nations to which .retirement registrants direct their activities, or must it involve global outreach so that any potential future registrant and its customers will be accommodated by an already existent working relationship? And what would comprise an effective strategy to mitigate potential fraud or other illegal activities by registrants—would this require proactive engagement, monitoring, and enforcement by registry operators, who may well be asked by regulators to establish such frontline risk mitigation activities?

Overall, this safeguard must be read in conjunction with the others, with the expectation that regulators will likely seek proactive registry operator involvement in the development and implementation of risk mitigation strategies.

Further, registry operators must take into account that a TLD is a global DNS resource. A registrant eligibility policy or regulatory engagement approach too narrowly focused on a specific nation(s) or region may well and rightly be criticized by potential registrants, consumer groups, and other public and private sector entities.

5. Single Point of Contact.

Registrants must be required by the registry operators to notify them of a single up-to-date point of contact for the notification of complaints or reports of registration abuse, as well as the contact details of the relevant regulatory, or industry self-regulatory, bodies in their main place of business.

Single points of contact are already standard practice for ISPs and web hosting companies. This safeguard again places a duty upon registry operators to obtain information from registrants with whom they otherwise likely have no direct dealings or contractual relationship. While the actual information that must be obtained—the unitary contact point for urgent notifications of reported abuse at a website—is relatively simple, the question again arises regarding whether the registry operator has a duty to validate this data on an initial or continuing basis.

Further, since this safeguard relies on the registrant to designate the contact details for what it claims to be its relevant regulatory and industry self-regulatory bodies in its main place of business, is there any duty for the registry operator to investigate whether the registrant has accurately done so? And does “main place of business” just cover the jurisdiction in which the registrant is domiciled—or all the additional jurisdictions in which it conducts or may seek to conduct substantial volumes of business with customers (e.g., a Bahamas-based .insurance registrant soliciting and conducting business in the U.S., E.U., and certain Latin American nations)?

Miscellaneous ‘Gripe Site Registry Advice

In related GAC advice, applicants for the .fail, .gripe, .sucks, and .wtf TLDs are singled out to “develop clear policies and processes to minimize the risk of cyber bullying/harassment.”

Such “criticism” TLDs could be particularly susceptible to such abuses—though they already exist today, often centered in “closed garden” social media platforms.

Further Targeted Safeguards

In addition to the six basic safeguards and the five additional ones for regulated and professional sectors, the GAC has also proscribed three additional safeguards for at least seven of the twelve sectors listed above—financial, gambling, professional services, environmental, health and fitness, corporate identifiers, and charity.

These additional safeguards are aimed at “market sectors which have clear and/or regulated entry requirements in multiple jurisdictions,” and are applicable to some of the strings in the listed sectors—although the GAC provides no guidance as to which strings might be exempt and on the basis of what criteria exemptions might be granted or denied.

These further targeted safeguards consist of:

1. Added Checks

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

This verification and validation duty is placed on the registry operator, rather than the registrar who interfaces with the registrant at the time of registration. While the registry operator night prefer to delegate such responsibilities to registrars with which it has established business relationships, doing so as a thousand-plus diverse TLDs launch could prove infeasible.

Thus, there are questions of how such a process would be coordinated and the status of a registrant’s registration until such time as the verification/validation duty is completed. It clearly places significant new responsibilities on registry operators—although one that is already managed by many ccTLD operators—that will entail the use of in-house or outside compliance counsel and staff.

2. Consultations With Regulators

In case of doubt with regard to the authenticity of licenses or credentials, registry operators should consult with relevant national supervisory authorities, or their equivalents.

This would require each registry operator to develop policies relating to how authenticity of credentials will be evaluated, as well as establish relationships with relevant supervisory authorities in all nations in which registrants may be domiciled or otherwise have significant jurisdictional contacts.

Again, this creates additional significant new compliance responsibilities likely to require increased staffing by both registries and ICANN.

3. Post-Registration Checks

The registry operator must conduct periodic post-registration checks to ensure registrants’ validity and compliance with the above requirements in order to ensure they continue to conform to appropriate regulations and licensing requirements and generally conduct their activities in the interests of the consumers they serve.

This would place a continuing, post-registration duty on registry operators to not just confirm the regulatory compliance and licensing validity of registrants but to make a subjective judgment on whether they are conducting their activities in consumers’ interests.

This raises the issue of whether it is reasonable and appropriate to place such subjective judgment responsibilities on what are primarily providers of technical DNS services. On the other hand, TLDs aiming to serve specialized communities associated with regulatory and licensing requirements may wish to accept this GAC advice and address it via responsive PICs as well as cooperative engagement with ICANN compliance staff to develop reasonable yet effective enforcement mechanisms.

Restricted Registration Policies—Limited or Exclusive Strings

In addition to the above proposed safeguards, the GAC provided advice regarding restricted or exclusive access to strings.

First, as “an exception to the general rule that the TLD domain name space is operated in an open manner registration may be restricted,” with such restrictions being particularly applicable for strings subject to the extra safeguards for regulated and professional sectors—especially including those with entry requirements.

However, the GAC advice proposes that such registration restrictions be administered by registry operators “in a transparent way that does not give an undue preference to any registrars or registrants, including itself, and shall not subject registrars or registrants to an undue disadvantage.”

In other words, registrant entry can be restricted, but the restrictions must be geared to the relevant risks associated with the TLD. The restrictions must also be transparent and neutral under the subjective standard of not providing an “undue preference [or] disadvantage.”

What this means in practice will likely be a subject of some debate, and certainly provides an opening for any party who believes that a TLD’s proposed registration restrictions seek to advance goals other than legal/regulatory compliance and consumer protection—such as granting an undue competitive advantage to a subset of potential registrants, or seeking to advance policy goals within the TLD program that more properly should fall to legislators or regulators.

The second and final bit of GAC advice in annex I addresses the controversial subject of “closed generic” TLDs, for which ICANN recently conducted a public comment period which attracted one of the largest numbers of comments in recent years.⁷

That extensive public feedback has so far resulted in no formally announced ICANN policy or position. Amazon, Google, and other business applicants from both the United States and abroad have applied for generic word domains in which they hold no trademark rights yet for which they have proposed to be the sole registrant.

Critics of “closed generic’ TLDs have charged that they are fundamentally incompatible with the new TLD program’s stated goal of fostering innovation and competition. Google, for one, has responded to such criticism by proposing significant alterations for four of its most controversial applications.

On this hot button subject, the GAC simply states, “For strings representing generic terms, exclusive registry access should serve a public interest goal.” That statement is followed by a non-exhaustive list of strings identified by the GAC as constituting generic terms.

Registry Operator Code of Conduct

It appears that this is one bit of GAC advice that ICANN may have already taken into account.

The revised RA released by ICANN on April 29 proposes to strike the phrase “that are reasonably necessary for the management, operations and purpose of the TLD” from Section 1b of Specification 9, otherwise known as the “REGISTRY OPERATOR CODE OF CONDUCT” (COC). The proposed changes would replace the provision with authorization for the registry operator to allocate up to 100 domain names for its own exclusive use.

That deleted phrase constituted the prior parameters of the exception to the general rule that a registry operator will not register domain names in its own right—and some closed generics applicants had argued that the word “purpose” permitted avoidance of seeking a sole registrant exemption under Section 6 of the COC.

Presuming that deletion carries through the public comment and Board approval process for the revised RA, it would seem that closed generic applicants may now have no way to avoid seeking a formal exemption from ICANN.

ICANN staff provided no comprehensive explanation of the intended purpose of these proposed amendments to the evolving contractual documents, so there may well be parties who interpret this alteration differently.

The exemption language of Section 6 remains unchanged in the revised RA, and allows ICANN to grant an exemption in its “reasonable discretion” if a registry operator demonstrates to ICANN’s reasonable satisfaction that:

• all domain name registrations in the TLD are registered to, and maintained by, registry operator for its own exclusive use,
• registry operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an affiliate of registry operator, and
• application of the code of conduct to the TLD is not necessary to protect the public interest.

Thus, the GAC’s admonition that closed generics must “serve a public interest goal” dovetails well with the Section 6 requirement that ICANN must determine that permitting closed generic operation is not adverse to the public interest—if all TLDs that propose to have the registry operator as sole registrant are indeed required to affirmatively seek an exemption.

The matter is not fully settled, as ICANN must still determine general principles to decide when application of the code of conduct is not necessary to protect the public interest. ICANN must then apply those principles on a case-by-case basis for those proposed closed registries that can still muster a convincing rationale for exemption.

It is quite possible that ICANN might find a public purpose in protecting trademarks at the top level of the DNS for non-generic, trademarked term “.brand” TLD applications.

The revised RA contains multiple, extensive additional revisions beyond the code of conduct changes that may also be highly controversial.

For example, on May 1 VeriSign Inc. filed an aggressive comment letter on the registry agreement,⁸ complaining that:

ICANN has broadened its unilateral amendment rights even further under a new and never before disclosed Section 7.7 which permits ICANN to make changes to the registry agreement on subjects that even the consensus policies are explicitly prohibited from considering—and beyond ... Under its bylaws, ICANN is to serve the Internet community based on bottom-up, transparent decision making. Sections 7.6 and 7.7 are the antithesis of lCANN’s core values. They should not become part of registry agreements.

The Governmental Advisory Committee and Commerce Dept. should rein in any such unprecedented expansion of ICANN’s powers. In the Affirmation of Commitments, the DOC affirms its commitment to a private sector led, bottom-up policy development process. Sections 7.6-7.7 seek the opposite.

As one example of what VeriSign purports ICANN could do unilaterally, “without governmental oversight and over the objections of registry operators,” the letter states that:

ICANN unilaterally determines that no new TLDs should be operated in a closed manner and amends the agreement to require all TLDs to be open, endangering established registry business model.

However, as discussed, governments represented on the GAC have already given consensus advice that closed registries must further public interest goals—and many parties who filed public comments on “closed generics” wanted ICANN to ban them outright.

Regardless of the final provisions of the RA relevant to closed generics, the GAC’s position is now clear—a string in which the registry operator is the only permissible registrant must serve a public interest goal. As for the overall RA, the new TLD program cannot go forward until all remaining disputes are resolved and it is made final, as there must be a standard contract document for registry operators to sign before their new TLDs can go forward.

Annex II – The GAC’s PICs Questions

As noted earlier in this article, in the main body of the communique the GAC requests additional information on eight PICs-related questions contained in Annex II.

These questions relate to such matters as:

• Third-party and governmental intervention and objections;
• Availability of a PICs amendment process;
• Registry and public awareness of their commitments;
• Remedies for failure of a registry operator to submit PICs;
• Enforceability of PICs, whether by contract compliance or additional means; and
• ICANN criteria for acting on the recommendations of the PICs Dispute Resolution Provider (DRP).
• Remediation methods for registration policies resulting in harm.

While PICs were originally put on the table as an optional means for applicants to demonstrate their commitment to and recognition of responsibility to operate a particular TLD in a beneficial and non-abusive manner, many applicants did not file them because the self-imposed obligations result in no offsetting application award benefit.

The new TLD program rules encourage applicants for the same string in contention sets to resolve matters among themselves. Failing that, contention sets will be settled by auction where the highest bid settles matters irrespective of PICs or other qualitative applicant commitments.

Now the GAC communique may well be pushing PICs toward the status of mandatory and enforceable guarantees. Indeed, a few months ago the United States suggested that all TLD applicants should submit PICs—especially for categories of strings for which the GAC has requested additional safeguards.

If that is the case, then ICANN will eventually need to reopen the PICs submission window. Once filed, PICs are made available for public inspection—although not direct public comment—at the new TLD current application status page.⁹

Enforcement of Accepted GAC Advice

ICANN’s Board consideration of the GAC communique is now clearly underway. The process raises threshold questions of whether and how various categories of GAC recommendations will be accepted, as well as multiple subsidiary issues of consideration of public comments, modification and implementation.

While we don’t yet know which of the GAC advice will be accepted by ICANN, or with what modifications or implementation details, the realpolitik’s of the current situation appear to dictate that a substantial number will find themselves into the final requirements for the first round of new TLDs.

That raises the question of how the safeguards and other accepted elements of GAC advice can be implemented in a manner that is “subject to contractual oversight by ICANN.”

The standard approach would be to amend the RA so that the requirements for all similarly situated registry operators are uniform. But that could well require substantial additional delay in the new TLD program—first to draft concrete expressions of broad and subjective requirements and devise appropriate enforcement criteria, and then to republish the amended RA for further public comment.

The apparent controversy being generated by the April 29 RA revision drives home the possibility of extended delay.

The alternative approach would be to reopen the PICs window and require all applicants to submit initial or revised PICs that address the GAC’s safeguards and other accepted advice.

But that would place an enormous review and feedback/revision burden on ICANN staff, as well as result in significantly disparate approaches and commitments from applicants seeking to operate in the same sector categories.

If a standard approach to consumer protection and harm mitigation are the main goals then a uniform approach through RA modification would seem the best route to assuring consistent implementation of safeguards.

Realpolitik 101: Substantial Portions of the GAC Communique Will Be Accepted and Implemented

Critics of the Beijing GAC communique may well assert that it comes two years too late, imposes inappropriate and vague burdens on registry operators that negatively impact their business models, gives governments an inappropriately enhanced role in ICANN’s multistakeholder process, offloads governmental responsibilities onto the private sector, and will cause further delay in the new TLD program, among other complaints.

While there is some justification for those assertions, they are also beside the point.

ICANN is a unique and inherently fragile entity—a standalone nonprofit corporation imbued with authority to manage the addressing system of the most powerful global telecommunications network ever devised, dealing with issues that routinely intrude on legal and policy decisions normally the province of national governments or multinational organizations.

While freed of formal U.S. oversight in 2009, ICANN lacks the mass and velocity to escape governmental oversight of some type. Further, with ICANN no longer under the clear protective wing of a superpower, it must forge a rapprochement with the multi-governmental GAC to assure long-term viability.
Despite its CEO’s articulation of “the multi-equal stakeholder model,” in ICANN world, as in Orwell’s Animal Farm, some stakeholders are more equal than others.

The Beijing communique can be regarded as the completion of a four-year governmental journey within ICANN since the termination of formal U.S. oversight and its replacement by the Affirmation of Commitments (AOC). There should be no surprise that it took so long—governments are by nature reactive and risk-averse entities, and the scale of the TLD program and the unexpected issues that developed added to the response time.

GAC members arrived early in Beijing and labored long hours over the course of an entire week to produce the communique. In a way, that commitment of time and effort, and the delivery and content of the document, signaled a broad multi-governmental embrace of the ICANN model and of the new TLD program. Imagine if, instead of proposing safeguards, the GAC had announced that the perceived threats to consumer protection, intellectual property, online competition and innovation, DNS stability and security, and other potential negatives generated by the program simply outweighed the potential benefits—and that therefore it should be halted. ICANN and applicants would now be in a crisis state if that had occurred.

If ICANN were now to reject the bulk of the GAC safeguards and other recommendations there might be no immediate dire consequences. What there likely would be is a collective decision by many governments that ICANN involvement is not worth the time and expense, and a drifting away of government involvement.

If, on the other hand, ICANN now adopts, with reasonable modifications, the bulk of the GAC advice it will provide the feedback that participating governments need to justify continued engagement—as well as to defend ICANN’s model within other forums.

Continued Threats From ITU

The threat to ICANN’s role and existence is far from dissipated—the International Telecommunication Union (ITU) will hold its World Telecommunication Policy Forum (WTPF) in Geneva this month, and the UN Internet Governance Forum is preparing for its next meeting in Bali, Indonesia. ICANN must continue to befriend governments, not alienate them.

A general embrace of the GAC communique can help ensure ICANN’s long-term support from governments and thereby its survival—and, as for most organizations, self-preservation is a high priority. The survival of ICANN, whatever its flaws, is also better for business, civil society, and other constituencies than ICANN’s replacement by a DNS manager in which governments have control rather than just substantial influence.

The GAC communique and responsive requests for comments provide an opportunity for everyone involved in ICANN and every interest affected by the new TLD program to submit final input on its proposed framework for the launch of new TLDs. Yes, it will likely cause some delay; and yes, it will impose unanticipated duties and responsibilities on all registry operators, particularly those seeking to operate strings related to sensitive sectors. But it also provides a blueprint for the means by which ICANN and registry operators can work cooperatively with the global public sector in decades to come.

ⁱ http://www.icann.org/en/news/announcements/announcement-2-10may13-en.htm

ⁱⁱ http://www.icann.org/en/groups/board/documents/agenda-new-gtld-18may13-en.htm

ⁱⁱⁱ http://www.icann.org/en/news/press/kits/video-gac-advice-10may13-en.htm

^iv http://forum.icann.org/lists/comments-gac-safeguard-advice-23apr13/

¹ https://gacweb.icann.org/display/gacweb/Governmental+Advisory+Committee

² http://newgtlds.icann.org/en/announcements-and-media/announcement-18apr13-en

³ http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm

⁴ http://www.icann.org/en/groups/board/documents/agenda-new-gtld-08may13-en.htm

⁵ The Proposed Final 2013 RAA was issued for public comment on April 22, with the initial and reply comment periods ending on June 4—see http://www.icann.org/en/news/public-comment/proposed-raa-22apr13-en.htm

⁶ http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm

⁷ http://forum.icann.org/lists/comments-closed-generic-05feb13/

⁸ http://forum.icann.org/lists/comments-base-agreement-29apr13/msg00000.html

⁹ https://gtldresult.icann.org/application-result/applicationstatus

Copyright © 2013 by The Bureau of National Affairs, Inc.

Reproduced [or Adapted] with permission from Electronic Commerce & Law Report, Vol. 18, No. 20 (May 7, 2013). Copyright 2013 The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com.