ICANN Board Delays Action on New gTLD Policy

Earlier today, the Board of Directors of ICANN delayed action on the proposed New gTLD policy that emerged from the GNSO in September, with the following resolution (see transcript of Board meeting, part 1 of 2):

"It is resolved the board expresses its thanks to the organizers and participants of the GNSO workshop on new gTLDs held this week in Los Angeles.

And it is resolved that the board acknowledges the GNSO's recommendations and notes that staff has posted the report for public comment.

The board further asks the staff to continue working on implementation analysis and to come back to the board and community as soon as feasible with a report on implementation issues no later than the ICANN board meeting in January 2008."

The good news from the perspective of Keep The Core Neutral (KTCN) is that the Board did not vote to approve this policy without further analysis, as the GNSO approved it without removing the provisions for criteria for gTLD approval that include references to morality and public order (recommendation #6), and provide for an unpredictable challenge process to veto gTLDs based on ill-defined community claims (recommendation #20). (NCUC members did not vote to approve, but they were outnumbered.)

It is difficult to predict what ICANN staff will deliver in terms of an implementation analysis. We hope that staff will recognize that having ICANN usurp legitimate legal jurisdictions to address matters of free speech, trademark law and national sovereignty is inappropriate and destabilizing to legitimate public governance. It is unknown whether the Board will vote on this policy prior to the next public meeting, 10-15 February 2008, in New Delhi, India.

Monday Workshop, NCUC Statement and Public Comments

These developments follow a spirited discussion of the issues at Session 3 of Monday's workshop, where many speakers came to the open microphone to voice their opinions on the policy.

Some highlights from that discussion (note: IP Justice Executive Director Robin Gross was on the panel representing the NCUC for Session 3):

ROBIN GROSS: Thank you. I'm Robin Gross with the Noncommercial Users Constituency. And I just wanted to explain to the Internet community why the NCUC could not vote in favor of these recommendations. In particular, the problem was Recommendation number 6 and number 20 we are talking about here. In particular, Recommendation 6, the reasons why we voted against it, and our concerns remain, is it will completely undermine ICANN's efforts to make the gTLD process predictable and instead makes the application process entirely arbitrary, subjective and, unfortunately, political. It will have the effect of suppressing free speech, diverse expression. It exposes ICANN to litigation risks. Karl [Auerbach] spoke this morning about the antitrust problems that ICANN faces. There are also freedom of expression rights people have that are under threat by this policy and it takes ICANN far too far away from its technical coordination mission and into areas of legislating morality and public order.

With respect to recommendation number 20, the problems we have with this broad-based objection and rejection process, it essentially empowers experts to adjudicate legal rights of people. The proposal empowers ICANN and its experts to invent entirely new rights to domain names that don't exist in law and will compete with existing legal rights.

However good intentioned the proposal is, it will inevitably set up a system that decides legal rights based upon subjective beliefs of expert panels and the amount of insider lobbying.

The proposal gives established institutions a veto power over applications for domain names to the detriment of innovators and startups. The proposal is further flawed because it makes no allowance for generic words to which no community can claim exclusive ownership of and, instead, it wants to assign rights to use language based upon subjective standards, overregulate to the detriment of competition, innovation and free expression.

So we're very concerned about the proposals that came out, and that's in a nutshell the main reasons why the noncommercial users constituency could not vote in favor of these recommendations. Thank you.

...

MILTON MUELLER: Chuck, could you put up the definition of "implicit targeting"? ... Implicit targeting means the objector makes an assumption of targeting. Or that the objector believes that there may be confusion by users.

Now, come on, guys. How do you let this kind of language get into an international process that you're calling objective and designed to avoid subjectivity? I mean, I totally disagree with the whole philosophy behind recommendation 20, but if you want to do it, at least try to do it well, so that it has to be explicitly targeted. Just get rid of this whole business of implicitly targeting. I just can't see how anybody can see that as anything but a license for any group that is well-organized or politically powerful enough to mount a challenge [to] object to anything they bloody well please.

Thursday Public Forum, KTCN Interim Petition Delivered

A public forum was held on Thursday, and NCUC Chair Milton Mueller reported on an interim version of the Keep The Core Neutral Petition that was delivered to the Board earlier that morning:

MILTON MUELLER: Thank you. I'm Milton Mueller, Syracuse University and the Internet Governance Project. I'm coming before you [on behalf of the] Keep the Core Neutral Campaign, which emerged in response to the new gTLD process.

I want to make it clear that almost everybody in that campaign strongly supports ICANN going ahead with new top-level domains and is eager to see that process concluded. And as probably many of you know, I myself have been an advocate of new top-level domains since the Working Group C of year 1999 to 2000. But we're very concerned about some of the issues that are arising in respect to the new TLD process, and, in particular, with ICANN's attempt to enforce so-called standards of morality and public order, and, essentially, to filter and to reject strings on the basis of their [expressive] content.

[What] I'm doing here is reporting on the results of that campaign. We're very pleased with it. We circulated a petition. I won't read to you [the full] petition, just the opening paragraph that gives you the gist of it:

It says, "As new generic top-level domain name space emerges and policy choices are made about how ideas may be expressed at the Internet's top level, we ask ICANN to keep the core neutral of non-technical disputes and choose policies that respect freedom of expression and innovation in the new domain space."

The petition has been signed by a total of 265 signatories. Of those, 84 are organizations, and 181 are individuals. ... There are 37 different countries represented in that list. Some of the organizations that signed are large ones, such as the Association for Community Networking in the U.S.A., Computer Professionals for Social Responsibility, Electronic Frontier Foundation. There are small ones. And, you know, again, there are 37 different countries here, Foundation for Media Alternatives in the Philippines, the [Fantsuam] Foundation in Nigeria, various organizations in Europe, the Ministry of Culture in Brazil, NCAP in Canada, names that I can't pronounce in Portuguese, so I will not try. And, of course, a large number of individuals, and it would not be right to start listing out individual names.

Anyway, to wrap up, this issue is attracting attention. It cannot be avoided. It has to be dealt with. It will, I think, continue to grow in concern. It's a very important turning point. Everybody wants ICANN to have a process for establishing new gTLDs. But as you know, you're raising policy issues, and we think that the proper way to approach these policy issues is to keep the core neutral and try to minimize, if not eliminate, nontechnical aspects in the coordination of the top level. Thank you.

Petition Still Open, New Chairman of the Board

KTCN will continue to solicit additional signatures leading up to a final presentation to the Board prior to its vote on the policy. We hope that ICANN staff will carefully consider the pitfalls of the existing proposal, and we hope that the Board will choose not approve it in its current form.

There may be potential for some adjustment in the overall thrust of ICANN policy following the end of Vint Cerf 's final term as Chairman of the Board as Peter Dengate Thrush, a New Zealand lawyer and member of the Board since 2005, was elected unanimously to that position for the next term. Dengate Thrush was one of the minority bloc that voted not to reject the controversial .xxx gTLD application earlier this year. That controversy (and the precedent set by the Board's decision to pro-actively reject the application even while acknowledging that technical and operational criteria were clearly fulfilled) continues to inform the debate surrounding new gTLDs at ICANN. With Dengate Thrush as Chairman, KTCN is hopeful that ICANN might begin to reconsider its approach toward non-technical policy issues, and to redefine its policies so as to confine itself to a productive technical role, and to leave difficult public policy matters that cannot find global consensus to the appropriate legal jurisdictions for such deliberations.

Keep The Core Neutral

Petition to ICANN Board of Directors:

ICANN Board Delays Action on New gTLD Policy