Earlier this month, MarkMonitor representatives were privileged to witness, at the first ICANN meeting of 2016 in Marrakech, Morroco, the historic presentation of the plan to transfer the stewardship of key internet functions (IANA) from the United States Government to a community and consensus-based model of governance through ICANN (Internet Corporation for Assigned Names and Numbers). As the community moves forward with discussions about important topics such as Whois/Registration Directory Services (RDS), Rights Protection Mechanisms (RPMs), abuse mitigation, and new gTLDs, a balanced and equal structure for decision making is vital to protect the internet.

IANA Transition and ICANN Accountability

For over two years, several ICANN cross-community working groups worked diligently to propose a plan to transition oversight of the IANA functions (Internet Assigned Numbers Authority - the basis upon which the ICANN community does its work) from US control to full community control. While the US government has, since the late 1990’s, allowed ICANN (through a bottom-up multistakeholder decision-making process) to make and implement policy, it has always remained in the background as the ultimate steward of the function. In 2014, the US government announced that the community would become self-governing, pending the development of a plan for transition of the technical function and a plan to ensure that ICANN, as an organization, would remain accountable to all of its stakeholders including internet users, brand owners, consumer advocates, law enforcement, governments, service providers, security professionals, and more.

All eyes are now on the National Telecommunications and Information Administration (NTIA), an office within the United States Department of Commerce, who will test and approve the plan. The NTIA is currently in the process of appointing an independent expert to review and test the plan, a process that is expected to take several months.

Community stakeholder groups have approved the accountability plan (by consensus) and have sent it off for approval, however, despite general support for the plan, there are still several areas which require work. Stakeholders were given the opportunity to air concerns and encourage further work on certain aspects of the accountability recommendations during the consensus call and many groups took advantage of the opportunity, including the Intellectual Property Constituency (IPC). Among the stated concerns: ICANN’s mission statement and remit should be more clearly defined; the extent of ICANN’s commitment to Human Rights should be more clearly stated; and the role of government should be respectful of legal authority but should not result in government control or veto of any duly considered community approved policy. The bottom line is that we’ve reached a milestone, but as usual with ICANN, we are far from finished. The community members who dedicated their time and talent should be congratulated.

New CEO

Marrakech was the final meeting of ICANN immediate-past CEO Fadi Chehadé, who ushered ICANN through the prolonged IANA transition discussion with diplomacy and hard work. The new CEO, telecommunication industry veteran (and ICANN newcomer) Göran Marby joined the meeting as an observer. He is expected to join the organization in May 2015. Mr. Marby was present but largely silent at the meeting (as most of us are at our first ICANN), but by all reports he was welcome into the community and spent time getting to know his staff and community colleagues. In the interim, ICANN Global Domains Division (GDD) President Akram Atallah will be acting-CEO.

Whois/Registration Directory Services

The first face-to-face meeting of the Next Generation Registration Directory Services Policy Development Process Working Group took place in Marrakech to a packed house led by a cross-section of the GNSO (Generic Names Supporting Organization). Members of the group are tasked with discussing the future of Whois/RDS. Whois (and whatever the next incarnation may be) remains an important and necessary tool for intellectual property owners, consumer advocates and public safety officials that rely on accessible, accurate and complete registration data to combat abuse, fraud, malicious behavior and infringement online. The key concern with all Whois/RDS discussions is the appropriate balance between legitimate interest in domain ownership information and legitimate concerns about the integrity of the data, including privacy concerns.

The main threshold question that has emerged in the group is: “What is the purpose of Whois/RDS?” For many in the group this question must be answered before a new RDS system (such as the one proposed by the Expert Working Group) can be built to serve such a purpose. It is very important that all cross-sections of the community are involved in this discussion, as every use case for Whois needs to be presented at this time, or risk being left out of consideration. If Whois is important to us—and we know that it is for all of our clients—the scope of the importance must be discussed now. The beginning of a PDP is the time to throw all the issues on the table for discussion. Group members will sort through input, arrange everything by issue and prioritize the work moving forward. Now is the time for our concerns to see the light of day. The group is expected to rely on experts in each area, and has already called for self-identification in areas such as legal, technical, public safety, privacy, etc. If you’re interested in participating, please contact us or join through ICANN. Everyone (no matter what your ICANN skill-level) is encouraged to join the conversation.

Another Whois issue discussed in Marrakech was the slow but important implementation of Thick Whois. As I wrote in 2014, Thick Whois would provide brand owners with easier, quicker access to stable and consistent Whois information. This means quicker responses to (and resolution of) disputes involving websites which sell counterfeit goods, contain pirated copyrighted materials, distribute phishing, malware and destructively operating botnets, and content which infringes on trademarks. The Intellectual Property Constituency (IPC) urged the ICANN Board and Staff to prioritize an implementation plan for Registries and Registrars in its meeting with the Board in Marrakech.

Finally, the Privacy and Proxy Services Accreditation Issues Final Report was presented to the Board for approval, but governments called for a delay through the GAC (Government Advisory Committee) Public Safety Working Group to allow law enforcement officials more time to examine the discrepancy between their initial recommendations and the final community approved recommendations. Once all outstanding issues and questions are resolved, ICANN will call for interested parties to join the implementation team. Final implementation of the recommendations will, in part, lead to clearer and consistent policies around relaying information to a registrant behind a privacy/proxy shield and disclosure of the registrant details in exigent and compelling circumstances.

Inter-Registrar Transfer Policy—New Registrant Transfer Process

The new Inter-Registrar Transfer Policy comes into effect on August 1, 2016. The GNSO Council unanimously voted to approve the consensus policy recommendations of the IRTP Working Group C on 17 October 2012. The ICANN Board adopted the recommendations of the GNSO Council on 20 December 2012. ICANN worked in consultation with the GNSO Implementation Review Team, which was formed as directed by the GNSO Council to work with ICANN, to ensure that the resultant implementation fulfills the intentions of the approved policy recommendations. The draft policy went through public comment on 30 March 2015.

Before August 1, 2016 we will be implementing the new change of registrant process required for all gTLD’s.

This new process will require that the current and new registrant approve all registrant changes. A “change of registrant” includes a change to the registrants’ first or last name, organization name, registrant email address or admin contact email address if there is no registrant email address.

A change of registrant will impose a 60-day transfer lock unless the registrant opts out of this feature. This requirement is to prevent domain hijacking.

We will be providing more information on the change of registrant process in the coming months.

New gTLDs, RPMs

Marrakech also hosted the first face-to-face meeting of the Subsequent Rounds of the New gTLD Program Policy Development Process Working Group. The leaders of the group have been selected (Jeff Neuman from Valideus, a member of the IPC; Avri Doria of the Non-Commercial Stakeholder Group; and Twitter executive and Business Constituency officer Stephen Coates). The group is currently discussing the work plan and issue mapping which was completed in 2015 by an ICANN Discussion Group tasked with developing the charter for this PDP. Like the RDS group, the working group is expected to spin off several subgroups according to areas of interest and expertise.

Interrelated to this issue of Subsequent Rounds is the Review of the New gTLD Rights Protection Mechanisms (RPMs), which, under current guidelines, must be completed before any new rounds of the new gTLD program launch. Review of the RPMs could also affect current new gTLDs and even potentially legacy TLDs such as .COM, especially as it relates to dispute resolution procedures such as the URS and the UDRP. The UDRP is set for review but will not be reviewed alongside the other RPMs. A dedicated PDP for the UDRP will follow the other RPM Review. Other issues scheduled for discussion within this PDP include Sunrise processes, blocking, premium names, reserved names, trademark clearinghouse processes and procedures and claims notices.

ICANN put out a call for volunteers on March 21, 2016. Colleagues in the brand and consumer protection space are encouraged to join this PDP, as RPM issues are core to these interests.