Collected news and opinion about the Internet Corporation for Assigned Names and Numbers, the domain name business, Internet governance, and miscellaneous other cyberlaw topics for January 7, 2015.
The star of the show today is Bloomberg BNA legal editor Joseph Wright's article "15 Policy Points to Watch at ICANN in 2015," which ran last week in our Electronic Commerce & Law Report.
The Internet Corporation for Assigned Names and Numbers had a big year in 2014, as the announcement of a potential Internet Assigned Numbers Authority transfer of oversight from the U.S. to the global multistakeholder community dominated headlines at the same time the new generic top-level domain (gTLD) program passed from the application and evaluation phases to the final contention resolution stage.
More of the same is expected in 2015, as both processes continue apace while more voices continue to call for increased accountability and suggest more widespread changes in conjunction with the IANA transition.
With this brief background in mind, here are the top 15 policy development areas to watch at ICANN in 2015:
1. IANA Transition
Internet governance issues dominated the discussion in and around ICANN in 2014, following the U.S. government's announcement in March that it intended to transition to the global multistakeholder community the government's oversight role of key DNS functions. ICANN created the IANA Stewardship Transition Coordination Group (ICG) in June to formulate a transition plan, and in turn an ICG working group on naming functions released a draft proposal Dec. 1.
The year ended with Congress tossing sand in the gears of the transition policymaking effort by defunding the NTIA's participation in the transition process. The NTIA defunding provisions were contained in the omnibus spending bill signed by President Obama Dec. 16.
Despite the NTIA restrictions, work within ICANN will continue apace, Steve DelBianco told Bloomberg BNA. DelBianco is the executive director of NetChoice, an Internet industry association.
“Regardless of what happens in Washington, there will be immense pressure within the ICANN community to meet the September 2015 target for IANA transition,” DelBianco said. “The key is to get real and sustainable mechanisms that can hold ICANN management and board accountable to Internet stakeholders, once the legacy relationship with the U.S. government is gone. It's a big task for such a small window of time, so the first half of 2015 promises to be very busy indeed.”
Nao Matsukata, president and CEO of FairWinds Partners, told Bloomberg BNA that the impact of the omnibus bill is largely symbolic, because the IANA transition plan was never going to be ready by the initial proposed Sept. 30, 2015, deadline--a date that coincides with the end of the current IANA contract. “The idea that the IANA transition could be resolved quickly is a pipe dream,” Matsukata said.
The ICG is accepting transition proposals until Jan. 15, and the working group proposal is expected to be finalized by Jan. 31.
Efforts to create new accountability mechanisms for ICANN and its board could very well be the biggest story in Internet governance in 2015.
“This is the year of ICANN accountability: the year when ICANN, the U.S. and the international community wrestle with difficult concepts of oversight, balance and public interest,” Kathy Kleiman, Internet Counsel at Fletcher Heald & Hildreth in Arlington, Va., told Bloomberg BNA. “Hundreds of good people are looking closely at this issue. Thousands more are watching from afar.”
At the London meeting in June 2014 the board adopted the recommendations of the Accountability and Transparency Review Team 2 (ATRT2) report (19 ECLR 853, 7/2/14), while the Generic Names Supporting Organization (GNSO) gave rare unanimous support for creation of an accountability mechanism independent from the board.
ICANN has chartered a separate cross-community working group to address accountability issues -- both those related to the IANA transition and more broadly. The charter expressly creates two workstreams -- (1) focusing on mechanisms that must be in place or committed to at the time of the transition and (2) focusing on topics for which implementation may extend beyond the IANA transition timeline. The U.S. has conditioned the IANA transition on ICANN having certain accountability mechanisms in place at the time of transition.
The cross-community working group's draft charter has been approved by all necessary advisory committees and supporting organizations except the Security and Stability Advisory Committee, and its first face-to-face meeting is scheduled for Jan. 18-20 in Frankfurt.
The bifurcation of the transition and accountability processes has been criticized from multiple directions, most recently in comments by the gTLD Registries Stakeholder Group on the CWG transition proposal. The order of operations between the IANA transition and the development of new accountability mechanisms will remain a source of tension as the processes proceed and perhaps begin to reconnect.
3. Internal Relations
In October the GNSO appointed a liaison -- Mason Cole, VP of Communications and Industry Relations for Donuts Inc. -- to the GAC as part of its efforts toward earlier GAC engagement. The GAC has expressed interest in being more involved at earlier stages of policy development, in part in order to assuage concerns that it steps into the process at the last minute and disrupts work that is almost complete. The GAC has also issued several post-meeting communiques expressing frustration that the board has ignored or disregarded its advice.
Elliot Noss, CEO of registrar Tucows Inc., told Bloomberg BNA that some of the substantive issues facing ICANN in 2015 will also implicate this tension between the board and the GAC.
“Through the IANA transition and accountability,” Noss said, “I think we're going to see the continued balance of power play out between the GAC, the ICANN board and staff, and the community.”
Matsukata said that 2014 was an important year for community organization within ICANN, with the development of multiple cross-community working groups created to address major issues including accountability and the IANA transition. He said this development “recalibrated the policy-making process,” an important development for supporters of multistakeholderism that should carry over into the new year.
Matsukata also said a trend toward governments sending higher-level officials as GAC representatives will continue in 2015 and presents a mixed blessing. “As the level of participants within governments gets higher,” he said, “more probably gets done, but the GAC also gets more political.”
The GAC is also expected to seek earlier engagement in issues that naturally affect national sovereignty, such as WHOIS policy conflicts with national law.
ICANN released Dec. 15 its Second Annual Report on WHOIS Improvements, detailing a variety of workstreams currently in process on WHOIS-related subjects. The report detailed progress on multiple WHOIS workstreams currently underway to both improve and ultimately replace WHOIS.
WHOIS policy development work is sufficiently robust that the GAC has requested help understanding it all. “In relation to all the work underway on Whois, the GAC is really struggling and challenged in finding precisely where and when it is that the GAC needs to weigh in or focus its attention,” Heather Dryden, former GAC Chair said Oct. 12 at a GAC session devoted to WHOIS at the Los Angeles ICANN 51 meeting.
The WHOIS improvements report details timelines for the distinct ongoing processes, including when possible implementation goals for 2015. Those include the finalization of an implementation plan for Thick WHOIS in .com, .net and .jobs by August; submission of a revised procedural process for handling WHOIS conflicts with national privacy laws by an implementation advisory group to the GNSO by June; and the launch of an accuracy reporting system for syntactically and operationally valid data by the middle of the year.
5. Proxy Service Accreditation
A GNSO working group on privacy and proxy service accreditation is expected to release a final PDP report in May 2015. The group is focused on whether
The working group has framed the accreditation question around seven sets of issues: (1) preliminary issues, (2) maintenance of services, (3) registration of services, (4) contact points, (5) relay of complaints to customers, (6) revelation of customer identities and (7) termination of accreditation, according to its Oct. 15 meeting agenda.
The working group circulated its preliminary draft initial report Dec. 19. The proposal will go through several revision and comment periods in 2015 before being considered for GNSO and ultimately board adoption. Key issues will include whether all website registrants qualify for proxy services; how costs of complaint relays are allocated between complainants, proxy services, and registrants; and under what circumstances proxy service providers may or must reveal customer identities to a specific requestor or to WHOIS users at large.
6. Category 1 Safeguards
An ongoing clash between the ICANN board and the GAC over category 1 safeguards for gTLDs related to highly regulated industries shows no sign of slowing down in 2015. The GAC's Oct. 16 Los Angeles meeting communique asked the board to reconsider its decision not to require registrars to vet the credentials of registrants for gTLD domain names in highly regulated sectors such as health care and law. Instead the board decided only to require the registrant's attestation of their qualifications to do business in the regulated sector.
New GAC Chair Thomas Schneider, in a Dec. 9 letter to board Chair Dr. Steven Crocker, made clear that the GAC will continue to pursue additional safeguards in 2015, for the current gTLD round if possible, and for future rounds as well. The Business Constituency, in a letter the same day, expressed support for a freeze on contracting and delegating new gTLDs in highly regulated sectors that have not implemented the GAC-proposed safeguards.
ICANN has indicated, however, that it has no plans to stop contracting and delegating gTLDs in highly regulated sectors, saying that objections are too little too late.
7. Outstanding TLD Controversies
Several TLD controversies remain unresolved and will require additional attention in 2015. The failure of the .gay community application of Dotgay LLC to prevail in community priority evaluation (CPE) raised eyebrows in October and resulted in an uproar over the CPE panel's interpretation of the gay community as defined in that application. A reconsideration request is currently pending.
The European Commission has promised to go down swinging despite ICANN's determination that applications for .wine and .vin will proceed to processing despite what Europe sees as insufficient protections for distinctive geographic identifiers, such as Champagne.
Applications for .web and .webs, .sport and .sports, .game and .games, and .shop and .shopping remain on hold as ICANN hammers out indirect contention auction rules.
A community application reconsideration request was also denied recently for a .music applicant, and that string will likely go to auction in 2015. The same day a reconsideration request was also denied over the delegation of the .spa string, to which the city of Spa, Belgium had objected over ICANN's treatment of the string as a non-geographic name.
The treatment of various applicants' reconsideration requests, the respect for the CPE process and concerns of the GAC over geographic TLDs (see below) will resonate further in 2015 as ICANN processes and accountability are closely scrutinized by the multistakeholder community.
8. United States Jurisdiction
At the ICANN 51 meeting in Los Angeles in October, GAC representatives from several countries including Brazil and Indonesia expressed concern about ICANN's continued status as a California corporation subject to U.S. jurisdiction. Indonesian representative Bambang Heru Tjahjono, an official with the Ministry of Communication and Information Technology, suggested that ICANN explore a UN-style system under which ICANN would be subject only to international law and not to local law wherever it happens to be headquartered or to convene.
What some see as the hazards of U.S. jurisdiction have been brought into focus by litigation in the District of Columbia over the status of country-code top-level domains. A federal judge quashed a subpoena seeking to attach the ccTLDs for Iran, Syria and North Korea via ICANN Nov. 10 under D.C. attachment law, but the plaintiffs -- victims of state-sponsored terrorism -- have filed a notice of appeal. The ongoing litigation may stoke the fires of calls to extricate ICANN from the jurisdiction of U.S. courts.
Jandyr Santos, of Brazil's Department of Scientific and Technological Issues, said that ICANN's international status should be rethought as part of the IANA transition and ICANN accountability processes. Such discussions in 2015 may include revived discussion of the possibility that ICANN could move its headquarters in the future from Southern California to Switzerland or another jurisdiction away from the reach of U.S. courts.
9. IGO/INGO Curative Rights
Work is underway on another policy development process, as GNSO has chartered a working group to develop a process to provide international governmental organizations (IGOs) and international non-governmental organizations (INGOs) access to curative rights mechanisms. While trademark holders can defend against cybersquatters using the Uniform Dispute Resolution Policy and Uniform Rapid Suspension processes, IGOs and INGOs currently do not have access to those mechanisms if their names are not also trademarked.
The working group will be exploring issues such as the extent to which IGO and INGO names lack trademark protection, the feasibility of opening up the UDRP and/or URS processes to IGOs and INGOs, and the feasibility of creating a distinct mechanism for IGO/INGO protection.
The GAC is expected to continue to press the issue of IGO/INGO name protection. It has previously advised the board that the Red Cross, Red Crescent and International Olympic Committee names should be explicitly protected and should not be subjected to a policy development process. The board has invoked a consultation procedure that will play out in 2015, signaling that it plans to move forward in contradiction to the GAC's advice.
The curative rights working group is expected to produce a final report in late 2015 or early 2016.
10. Geographic Name Protection
The GAC is expected to continue to seek to strengthen the protection of geographic names in the gTLD program. It recently concluded a comment period on a draft document from a subgroup regarding geographic names. That document said suggested consultations with affected governments did not occur during the first round of gTLD applications for strings that are not explicitly protected.
The GAC is looking to expand beyond the list of automatically protected names -- countries, national subdivisions and regions, capital cities and cities to the extent the name is sought for use in connection with that city. In a section provocatively entitled “Avoiding misuse of geographic names in future gTLD rounds,” the document recommends early engagement between applicants and affected governments and says that when agreements cannot be reach, the public interest must be prioritized over other interests, particularly trademark interest.
Much of the GAC's ire is focused on Amazon Inc.'s bid for the .amazon gTLD, which was denied in May in light of GAC advice that it should not proceed. Several South American governments strongly objected to Amazon's application, and the company did not receive support from local governments in the Amazon River biome region.
11. Meeting Structure Changes
2015 will be the last year for the current schedule and structure of ICANN meetings, as the board Nov. 17 adopted the recommendations of the Meeting Strategy Working Group. The new structure maintains the three meeting per year schedule and rotation of meetings among five geographic regions, but it provides for a shorter policy-focused summer meeting and a slightly longer fall meeting to include the ICANN annual general meeting and to showcase ICANN's work to a broader audience. The summer meeting would not include a public forum or board meeting, and with a smaller expected attendance would focus on locations not large enough to host larger meetings.
The 2015 meeting locations will be Singapore, Buenos Aires and Dublin. The first meeting was originally scheduled for Marrakech, Morocco but was moved due to concerns over the Ebola crisis in West Africa. Marrakech will instead host the first meeting in 2016. The Buenos Aires meeting location was announced at the late date of Dec. 3.
Buenos Aires also hosted the most recent Latin America and the Caribbean region meeting in November 2013, and Singapore hosted the March 2014 meeting. The quick return to two recent hosts may signal a smaller rotation of host locations in the future, at least for larger meetings.
12. Underserved Regions
ICANN released a staff report in May 2014 seeking comments on overcoming barriers to registrar accreditation and operation in underserved regions, particularly Africa and the Middle East, where collectively only 21 of 1,010 accredited registrars worldwide are located. Comments, however, questioned the need for additional registrars in those regions, saying domain name resellers also serve the region, that low demand for domain names is the root issue and that decreased standards would not be fair to the worldwide registrar community.
In 2012 ICANN developed an Africa Strategy for 2012-15 with three prongs: (1) developing a general framework, (2) supporting a stronger presence in Africa for ICANN and (3) increasing African participation in ICANN. In a Nov. 10 blog post, Pierre Dandjinou, ICANN's VP for Stakeholder Engagement for Africa, announced a consultative session focused on a similar set of issues: increasing African participation, monetizing the domain name industry in Africa and appointing a steering committee to oversee Africa strategy going forward.
The move of the ICANN 52 meeting from Marrakech, Morocco, however, is a setback for ICANN as it seeks to increase African engagement in the multistakeholder process. A potentially groundbreaking .africa TLD has also been delayed for over a year by an independent review panel proceeding instituted by the DotConnectAfrica Trust (19 ECLR 1051, 8/20/14). A merits hearing of the panel originally scheduled for Dec. 19 has been continued due to the resignation of a panelist for unrelated personal reasons.
Six to eight African nations are also awaiting redelegation of their country-code top-level domains (ccTLDs) to instrumentalities of their governments. Most other ccTLDs worldwide have been reclaimed by individual governments following their original delegation to individual caretakers.
13. Wind-Down of First gTLD Round
The first round of the gTLD program should culminate in 2015 with most if not all names still in contention likely to be resolved.
Cole told Bloomberg BNA that consumer awareness of gTLDs is likely to soar in 2015 as registries and registrars ramp up marketing and consumer awareness efforts and with the release of certain TLDs with broad consumer appeal such as .app, .music and .movie. “Those will really take off and will drive further awareness to the entire set of new TLDs,” Cole said.
Michele Neylon, CEO of registrar Blacknight Solutions, agreed that some attractive TLDs will go live in 2015 but also noted that 2015 will be a big year for TLDs that have already launched.
“It’ll be interesting to see how the renewals hold up as domains get their first 'birthday,' ” Neylon told Bloomberg BNA. “A lot of the new TLD registries have spent a lot of money on this, so they obviously want to succeed, but they may be overly optimistic.”
Neylon also said that certain poor-performing TLDs may already be in trouble, and 2015 could be the first year that new gTLD registries fold or are acquired.
David Weslow, attorney at Wiley Rein LLP in Washington, said the diversity of new gTLD registry practices and the ongoing launch schedule will likely mean increased litigation involving gTLD registries in 2015.
“Given the significant differences in registry business models, I anticipate a range of claims including IP infringement, antitrust, unfair competition, and unfair and deceptive trade practices,” Weslow said.
As the first round winds down, questions will inevitably arise as to when and how a second round of gTLD applications will proceed. Akram Atallah, head of ICANN's Global Names Division, said Oct. 13 that two positions are already forming within the GNSO as to whether the next round should proceed apace or whether more review and reflection is required.
“I was with the Generic Numbers Support Organization yesterday,” Atallah said, “and heard one side say ’You need to be accelerating the next round, because the board committed to it,’ and the other side saying, 'We must do every review, and check everything we can check, before moving forward.’ That's the beauty of the multi-stakeholder model and I'm glad I'm not the one who has to decide it.”
14. Contractual Compliance
With the proliferation of TLDs, ICANN will continue to beef up its contractual compliance efforts as it has many times more contracts to enforce than ever before.
“Is ICANN capable of enforcing its contracts is a question we'll start to answer in 2015,” Matsukata said. He added that this issue may seem more pragmatic and banal than others, but it “gets at the heart of ICANN functioning with any teeth.”
Kleiman agreed that ICANN's compliance functions will be put to the test in 2015 -- as will its customers, the registries.
“This is the year that the new gTLDs, their registries and ICANN will be tested to see if they follow the rules - and their restrictions - as set out in the New gTLD Applicant Guidebook and the other proceedings surrounding new gTLDs,” Kleiman told Bloomberg BNA.
ICANN appointed a chief officer of contractual compliance in October. ICANN CEO Fadi Chahade said in welcoming remarks at the Los Angeles meeting that 98 percent of registries and registrars are in full compliance with their contractual obligations.
15. Auction Proceeds
Through the end of 2014, 10 gTLD strings have gone to ICANN last-resort auctions, garnering $32,787,142 in net proceeds for ICANN, with a number of highly contentious strings still scheduled for auction in 2015. board chair Dr. Steve Crocker said Oct. 13 that the auction proceeds are being segregated pending community consultations regarding what to do with the funds.
A total of 51 auctions are currently scheduled for January, February and March 2015 with 28 additional contention sets not yet eligible for auction.
In 2012 Noss co-authored a Slate article suggesting that the last-resort auctions could net $100 million for ICANN and that those proceeds should be used to develop sustainable Internet infrastructure in Africa. Noss told Bloomberg BNA the article was primarily a way to get people thinking about the issue, but that he continues to support the idea.
“Anything that goes in the direction of creating core Internet access in underdeveloped parts of the world, particularly Africa, creates the greatest benefit,” Noss said.
One failed gTLD applicant has different ideas. In a Dec. 4 letter to the ICANN board, Aesthetics Practitioners Advisory Network CEO Tina Viney said that at least in certain circumstances, auction proceeds should be redistributed to nonprevailing bidders. Viney said three of the four bidders for the .salon string agreed to a private auction in which the proceeds would be redistributed to the nonprevailing bidders, but the fourth applicant would not agree, forcing a last-resort ICANN auction. Viney asked that the losing parties be considered in the distribution of the proceeds, giving the application fee and other costs incurred in the process.
Noss also said that while more attention will be paid to the auction proceeds issue in 2015 in relative terms, the issue is unlikely to be resolved quickly as many of the most potentially lucrative gTLDs have yet to be scheduled for auction. Those gTLDs remain tied up over GAC safeguards advice or ongoing string contention processes and appeals.
New gTLDs Kerfuffle
The gloves are officially off in the marketing battle between the "new" top-level domains and the "old" top-level domains.
Last month, VeriSign weighed in with The Real Facts About New gTLDs.
The article drew a response from Donuts several days later: The Empire Strikes Back: "New" Verisign Hums a Familiar Tune.
To the extent that people are using cybersquatting as an argument against the new gTLDs, I think the evidence is not on their side. Not yet anyhow.
In 2014, trademark owners filed UDRP claims against 4,191 domains in the .com top-level domain. The "new" gTLDs drew 185 UDRP complaints by trademark owners in 2014, plus an additional 251 URS claims. This does not appear to be particularly damning for the new gTLDs. If I were trademark owner, I'd be focusing my attention on cleaning up .com.
I'll be publishing more data tomorrow on what actually happened in the URS and UDRP in 2014.
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