Friday, August 3, 2012

Very Early Warning

by Thomas O'Toole

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 Kevin Murphy at DomainIncite picked up on a warning letter sent by the European Banking Authority regarding plans by two U.S.-based groups to apply for the .bank top-level domain

According to the European bank regulator, the prospect of a .bank top-level domain creates several possibly insurmountable problems. Among them:

• There is no readily identifiable benefit from the creating of a .bank top-level domain.
• Consumers may perceive “regulatory endorsement” of the domain, thus creating an unwarranted level of trust in entities operating within the domain.
• Unregulated entities outside of the EBA’s jurisdiction will use .bank to do business with European consumers.
• There is a strong likelihood that .bank and .fin top-level domains will become the launching pad for phishing and other online scams.

The EBA letter’s author, EBA chair Andrea Enria, stated his belief that it is not feasible for ICANN to satisfactorily resolve the EBA’s concerns. He asked ICANN “to reconsider its plans for allowing [the .bank and .fin] gTLDs and to ban the establishment of such gTLDs altogether.”

So far, two groups have publicized their intent to apply for the .bank top-level domain. The first is fTLD Registry Services LLC, a Washington, D.C.-based group formed by the Financial Services Roundtable and the American Bankers Association. Domain Security LLC, a group based in Wisconsin, is also applying for .bank.

Letters like the EBA’s are a problem for prospective top-level domain operators, clearly, in that they suggest that lobbying government officials for some domains must be done on a global basis, not just with local officials. When we talked with the fTLD Registry folks for a story last month, they wouldn’t talk specifics – but they hinted pretty strongly that they had been sharing their plans with federal financial regulators.

A larger problem has now been laid on ICANN’s doorstep. The EBA’s letter is tangible evidence that some government officials are not going to be content with ICANN’s official processes for lodging objections to proposed domains. Governments, being governments, can do whatever they please. They don’t have wait for “early warning” or the magical day when ICANN formally releases the list of applicants, they don’t have to send a letter to the GAC or lobby the GAC into filing an official consensus objection; they don’t have to poney up the fees that ICANN is demanding for lodging an official objection. They don’t have to trust that the bottom-up, consensus-driven, multi-stakeholder, private-sector-led approach to domain name administration is going to yield an outcome that is consistent with their regulatory objectives. They don’t have to respect ICANN’s processes. The EBA can simply prohibit banks within its jurisdiction from offering financial services through the .bank domain. I have a feeling that other governments, when faced with similar concerns, are going to take matters into their own hands as well.

It will be interesting to see ICANN’s response to the EBA. The entire process that it has created for dealing with objections is at stake.

This is not the first time ICANN has heard concerns about inherently problematic domains. The topic came up several times during ICANN’s final round of wrangling with its Government Advisory Committee in 2011. During the San Francisco meeting in March, ICANN’s response was that it was not feasible to decide in advance which top-level domains would be particularly troublesome from a public policy perspective; so, on that basis, ICANN resisted calls for special rules for applicants for those domains.

By Thomas O’Toole

Follow me on Twitter at @tjotoole.

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