In light of some changes contained in the most recent Applicant Guidebook as well as some of the proposed contractual provisions contained in the recent IANA Statement of Work, there is a potential growing justification to make some necessary last minute changes to the legal terms and conditions contained in Module 6 of the Applicant Guidebook. Specifically, the Governmental Advisory Committee (GAC) and its individual members have a clearly defined role in the new generic Top-Level Domains (gTLDs) process to raise public policy concerns under the existing ICANN bylaws and the newly proposed IANA SOW. However, unlike ICANN that has required prospective applicants to indemnify and hold it harmless, as well as waive any legal rights to challenge it in a court or other judicial fora, individual GAC members may find themselves on the receiving end of these legal proceedings.

It was not a widely held secret that the ICM Registry was posturing to sue the United States Government (USG) on proposed First Amendment grounds if ICANN approved their registry contract, but the USG failed to approve its inclusion into the root. In fact ICM Registry waived any past damages claim against ICANN based merely upon its execution of the agreement with ICANN, NOT upon the inclusion of the triple-X string into the root. So ICANN conveniently wiped its hands and absolved itself of any further liability by approving the TLD and punting that headache to the USG.

The potential of a government being sued in connection with domain name activities is not mere speculation. In Virtual Countries, Inc. v. Republic of S. Africa, 148 F. Supp. 2d 256 (S.D.N.Y. 2001), aff’d, 300 F.3d 230 (2d Cir. 2002), a domain name holding company Virtual Countries sued the Republic of South Africa over the domain name southafrica.com in New York Federal District Court. Similarly, an individual domain name registrant sued the USG in connection with the prohibition of proxy registrations in the .US ccTLD. Although both plaintiffs were unsuccessful, there is a real and genuine threat that the GAC or its individual members could be sued by aggrieved applicants and have to allocate limited financial resources to defend their duty to provide public policy advice.

While the GAC initially called for ICANN to remove these indemnity and waiver provisions from the Applicant Guidebook to hold ICANN accountable to aggrieved applicants, ICANN represented that it had obtained advice from international legal counsel that these terms and conditions were both legal and appropriate. Therefore ICANN should afford the GAC and its members the same protection which it is providing itself and its vendors/contractors. No more, no less, just the same.

This change to create parity between ICANN and the GAC is further supported by ICANN’s Articles of Incorporation which state in clear and unequivocal terms that ICANN should lessen the burdens of governments. These same representations about lessening the burden to governments were also made by ICANN when it sought its current status as a tax exempt entity. Therefore, ICANN should practice what it preaches and make the necessary changes to the Applicant Guidebook to protect the GAC and its members from any increased burden as a result of the important public policy advice that they will provide in the new gTLD process.

There will be no shortage of critics that will attack this latest proposal. They will point to the numerous changes ICANN has made during their consultations with the GAC, and say enough is enough. Stop kowtowing to the GAC and just launch the process. However, while most of these commentators will have a direct or indirect economic interest in the new gTLD process. My primary driving motivation is to keep Humpty Dumpty on the fall and preventing it from having a great fall.