Public participation site

Syracuse University professor Milton Mueller published a blog under the title "Will the GAC go away if the Board doesn't follow its advice?". Having been to a number of (very limited) ICANN meetings on behalf of law enforcement cooperation, I would like to share a few — probably thought provoking — observations. The GAC should not leave ICANN but it may be more efficient if its role changed and its efforts were aimed at a different form of output.

Governments and direct influence

I know that I should explain here what ICANN and the GAC is, but this article is only of interest if you already have some background.

Over the past few years the role of the GAC, Government Advisory Committee, within ICANN, Internet Corporation for Assigned Names and Numbers, seems to have changed. Having started as an advisory board, giving an advice to the ICANN board, which can be ignored or only taken to heed in parts, GAC operates more forceful. From advice to orders it seems.

As ICANN is multi stakeholder all the way and, as most internet related organs work, bottom up and through consensus only. Perhaps the most stifling form of democracy, but democracy it is. Show up or participate remotely and your voice is heard.

In this environment governments are seeking attention for their needs and concerns over the internet. Shouldn't they ask themselves: Is this the correct place to have direct influence?

Why are governments concerned?

The internet as we know it was created outside the view and influence of governments and by the time of the commercial boom, let's say, since 1998, most western countries had liberalised the telecommunication markets. If anything was regulated it was the old telephony and access fees, not the internet.

With the rise of commercial opportunities also other opportunities arose for criminal actors, hacktivists, activists, free speech advocates, state actors, etc. The results of these opportunities concern governments (of all sorts, for different reasons) as all sorts of national interest from public safety to economic are at stake. By the time governments seriously started to look around for enforcement matters and regulations they faced a global challenge. Hence the drive to have more say on internet related policy discussions. Hence more interest in ICANN, ITU, IGF, etc., but mostly ICANN it seems. But again is ICANN the right places to have direct influence?

GAC and ICANN

What also surprises me, is that governments put all this effort into ICANN. In the end this organisation handles only one aspect of what makes the internet work. Is this because it is the best organised one? There are so much more topics and equally important ones, where there seems less involvement. The RIRs, technical internet bodies, CERT meetings, etc., are less government attended. So again is ICANN the right place to have influence?

National laws

If a government wants real influence it has to write law that is binding within its own country. It would be advisable that (several) governments coordinate on laws and regulations, e.g. the E.U., perhaps even beyond. The three times a year GAC meeting could be great for coordination. Why go national?

The internet is only as stateless as the first cable coming on/into land somewhere. Everything behind that is within a nation state. This is where influence starts or could start should a government wish to have influence.

Let's say that a government wants a ruling on:

1) a validation of (a domain name registration by) registrars and registries and resellers. It can lobby with ICANN and hope for self-regulation or it can write it in the national law;

2) abused IP addresses revocation. It can lobby with the RIRs (Regional Internet Registries) or write a regulation into national law;

3) revocation of abused domain names? Idem;

4) National organisations implementing best practices developed at the IETF, it can lobby there or oblige national organisations, e.g. ISPs, to respond and implement within six months through national law;

5) etc., etc., etc.

A national regulation, whether directly enforced or through mandatory self-regulation, would be much more effective from a government's perspective than lobbying within multi-stakeholder groups and hope for the best. Does this mean governments have to leave these groups?

A new role

I'm not claiming that governments should leave ICANN. I'm not even propagating regulatory regimes here. To the contrary, but I do think the present effort could be bettered. Governments should use ICANN meetings, and all others around the internet, to understand which topics are important, what issues are at stake, inform themselves as good as possible from all sides by asking all the right questions and to have a true understand of it all. From this understanding they can build their policies, using all that acquired information.

Policy that on the one hand aids the development of the internet and the economy while on the other assists in making it more secure. There is a fine line to walk here, but a line governments need to walk to be most effective on both sides. And, without the aid of industry it will never come about.

Conclusion

So, governments, lay down your ears and give your advice, but then go home and act on it in the best way possible. Preferably coordinated.

Written by Wout de Natris, Consultant international cooperation cyber crime + trainer spam enforcement

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More under: ICANN, Internet Governance, Policy & Regulation, Top-Level Domains

Author's Foreword

Although this article was first published just a few days ago, on May 8th, there have been several important intervening developments.

First, on May 10th ICANN released a News Alert on "NGPC Progress on GAC Advice" that provides a timetable for how the New gTLD program Committee will deal with the GAC Communique.iii Of particular note is that, as the last action in an initial phase consisting of "actions for soliciting input from Applicants and from the Community', the NGPC will begin to "Review and consider Applicant responses to GAC Advice and Public Comments on how Board should respond to GAC Advice re: Safeguards" on June 20th. This will be followed by a second phase consisting of "actions for responding to each advice given by the GAC", including development of "a GAC scorecard similar to the one used during the GAC and the Board meetings in Brussels on 28 February and 1 March 2011".

In regard to how this may affect the timeline for introduction of new gTLDs, the Alert notes, "Part 2 of the Plan is not yet finalized and, with respect to some of the advice, cannot be finalized until after the review of the Public Comments due to be completed on 20 June." Thus it is impossible to know at this point in time how much delay ICANN's response to the GAC Communique may create for the introduction of new gTLDs, especially for those subject to the additional or further targeted safeguards for stings related to regulated industries and professions — although the outlook seems to generally adhere to the projections made in the article. I would guesstimate that some strings affected solely by the GAC's basic safeguards could launch in the third quarter of 2013, while those encompassed by the additional safeguards probably face delay until the last quarter of the year at a minimum. The next meeting of the NGPC takes place on May 18th in Amsterdam, where "Resolution(s) on GAC Advice" is on the agendaii; any such Resolutions are more likely to be procedural than substantive — with substantive reaction, much less implementation, waiting until after GAC interaction with the Board at the mid-July ICANN meeting in Durban.

Of course, regardless of how ICANN deals with the Communique, no new gTLDs can launch until the standard Registry Agreement (RA) is made final and adopted by the Board (and it may require yet further amendment to implement GAC safeguards and other advice) — and the same steps are completed for the revised Registrar Accreditation Agreement (RAA) if, as seems likely, only registrars adopting the revised RAA will be permitted to provide domain registration services for new gTLDs.

Second, on May 10th ICANN also released a video interview — "GAC Chair Heather Dryden on the Beijing Communiqué and New gTLD Advice"iii — in which Chairwoman Dryden makes some significant assertions:

• The safeguard advice was not an attempt to impose new obligations on registry operators but about pre-existing obligations and applicable law, and should therefore be viewed as implementation rather than new policy.
• The GAC is not suggesting a new global regulatory regime but measures that are consistent with ICANN's existing role. Responding to questions posed by Brad White, ICANN's Director of Global Media Relations, Ms. Dryden explained:
• It's really not intended to impose a new global regulatory regime. It is intended to be consistent with ICANN's existing role and serve as a reminder to those that have applied of what is really involved with implementing if they are successful a string globally as well as really wanting to emphasize that some of those strings raise particular sensitivities for governments
• The GAC believes there must be a good reason to permit exclusive registrations at a generic gTLD and encourages community discussion of the proper "public interest' standard.
• The GAC does not view the Communique as 11th hour advice but as a more detailed reiteration of general advice on gTLD string categorization that was not taken. The Communique is utilization of a standard ICANN mechanism consistent with the GAC's primary role of advising on public policy aspects of ICANN actions.
• On the overarching political considerations that will color ICANN's response to the Communique — If ICANN were to ignore the GAC advice many governments would question the usefulness of the GAC and their continued participation in and support of ICANN. Ms. Dryden stated:

  WHITE: Suppose the [ICANN] board in the end says "thank you very much for the advice, we've looked at it, but we're moving on" and basically ignores a lot of that advice?

  DRYDEN: I think it would be a very immediate reaction, questioning the value of participating in the Governmental Advisory Committee. If it is going to be the place for governments to come and raise their concern and influence the decision making that occurs at ICANN then we have to be able to demonstrate that the advice generated is fully taken into account or to the maximum extent appropriate taken in and in this way governments understand that the GAC is useful mechanism for them.
  ...
  WHITE: What you seem to be saying is there is concern about whether or not some governments might pull out from that multi-stakeholder model?

  DRYDEN: Right, right why would they come? How would they justify coming to the GAC meetings? Why would they support this model if in fact it's there aren't channels available to them and appropriate to their role and perspective as a government?

• The GAC's priorities for the July ICANN meeting in Durban are the fourteen strings specifically identified as requiring further consideration, as well as implementation of the proposed safeguards. Ms. Dryden explained:
  There may well also be aspects of safeguard advice that we would discuss further with the board or with the community or would need to, particularly the implementation aspects of some of the new safeguards that the GAC identified.

Chairwoman Dryden also concedes that the GAC advice may have been misunderstood because it was developed behind closed doors and therefore deprived members of the ICANN community of an opportunity to better understand the GAC's concerns and reasoning, and she appears to pledge that the GAC will operate with greater transparency in the future.

In addition to providing useful background on the GAC's thinking, the interview also reiterates that if ICANN fails to provide adequate response to the Communique it risks disengagement from the ICANN model by GAC member nations. In addition to providing an opportunity for demonstrating effective self-regulation, reasonable implementation of the safeguards can also head off more onerous top-down legislative and regulatory approaches. Imagine, for example, if in the absence of a meaningful response by ICANN to the GAC the European Community (EC) were to adopt legislation that incorporates the safeguards as a prerequisite for the sale of new gTLD domains by registrars operating in the Community as well as for the transaction of online business with EC consumers by their registrants?

Finally, initial public comments on the safeguards have started to be posted.iv Predictably, some support various elements while others urge rejection on the grounds that the Communique consists of tardy and ill-defined changes in policy that are at odds with the multi-stakeholder model.

Notwithstanding some negative comments and related press treatment, the overarching politics of the situation will almost surely result in a very serious ICANN process for considering the proposed safeguards and other components of the Communique, and seeking to implement them in a manner that is effective but does not impose undue or inappropriate burdens on contracted parties while maintaining ICANN's role as technical manager of the DNS in a manner that respects and enforces existing public policy but does not usurp roles that belong to legislators and regulators. New gTLD applicants, other members of the ICANN community, and interested third parties have an opportunity to influence ICANN's further consideration and implementation of the GAC advice over the next several months.

* * *

NEW TOP-LEVEL DOMAINS

(Synopsis) The Governmental Advisory Committee communique and responsive requests for comments provide an opportunity for everyone involved with the Internet Corporation for Assigned Names and Numbers and every interest affected by the new TLD program to submit final input on its proposed framework for the launch of new TLDs, the author writes. The added steps will likely cause delays and impose new duties, but will also provide a blueprint for ICANN and registry operators to work cooperatively with the global public sector in decades to come.

* * *

On the afternoon of April 11, 2013, the last day of ICANN's 46th Public Meeting in Beijing, China, its Governmental Advisory Committee (GAC) issued a long and detailed communique with significant implications for the approximately 1,400 unique applications submitted to ICANN's new TLDs program — and, based upon its implementation response, for ICANN itself.

The communique — the end product of a week of intense work undertaken by more than 100 participants from governments attending and engaging in the Beijing meeting — was foreshadowed by a March 31 GAC announcement1 that GAC meetings in Beijing would focus on "controversial or sensitive strings and applications," with sessions organized on "safeguard advice on the basis of categories of strings" and "GAC advice/objections on specific applications."

While the GAC has reverted to holding closed door meetings — excessively in our view, within an ICANN organization dedicated to transparency and accountability — during the days before the ICANN meeting and its initial days, the GAC did reach out. The GAC met with many parties, including the GNSO Council charged with TLD policy matters, the Commercial Stakeholder Group, the ICANN Board of Directors, and others.

The GAC was striving to deliver its input before the Beijing meeting concluded. The communique arrived in the middle of the Beijing Public Forum, where individuals directly address the ICANN Board on relevant topics.

The communique elicited immediate outcry from some that its proposals constituted major changes in the rules of the new TLD game after the game had begun, would cause undue delay, fostered internet censorship — and that it should be subject to public comment. But it received support from others who believe that the GAC is best positioned to address public interest issues implicated by ICANN activities. Further, many of the issues addressed by the GAC were not clearly evident until after the sheer volume and relevant specifics of new TLD applications had been fully digested.

ICANN's Unprecedented Move

In a somewhat unprecedented move, ICANN acquiesced to the call for public comments and is even requesting two separate types.

First, on April 19, new TLD applicants were advised that they were being provided with 21 days, until May 10, to respond to the GAC advice.2

That notice, as well as the official "GAC Advice Response Form for Applicants," takes a wide open approach. The notice provides no guidance on how feedback should be structured, such as whether applicants should critique the advice, outline how they intend to comply with it, or both. The attached form asks only for the applicant's name, ID number, and applied for string — followed by "Response:" and a blank space to fill.

Shortly thereafter, on April 23, ICANN published a general notice of request for public comment from any interested party on "New TLD Board Committee Consideration of GAC Safeguard Advice," with an initial comment deadline of May 14 and a subsequent reply period closing on June 4.3

The explanation of the general public comment invitation provides this background:
On 11 April 2013, the Governmental Advisory Committee issued its Beijing Communique´ in which it provided advice on New TLDs. The Board New gTLD Committee, acting on behalf of the full Board, will now consider how to address the GAC Advice. To help inform this process, the Committee has directed staff to solicit comment on how it should address one element of the advice: safeguards applicable to broad categories of New gTLD strings. Accordingly, ICANN seeks public input on how the Board New gTLD Committee should address section IV.1.b and Annex I of the GAC Beijing Communique´.

As can be seen, the scope of comment being solicited from the general public is circumscribed, with requested input limited to the portions of the communique proposing "safeguards" — although many commenters will likely ignore that restriction and address other portions as well.

Again, ICANN has provided no further refinement of the request for comment, giving no indication as to what feedback would be most useful to the Board's new TLD program committee. This unique and noteworthy approach may well result in feedback being received from parties not normally engaged with or active within the ICANN community.

Those most directly affected by the GAC advice, new TLD applicants, may well choose to participate in both their exclusive comment forum as well as this general one — especially as the reply period for the latter extends to nearly four weeks past their own May 10 cutoff date — if they are willing to make their responses public.

Potential Implications

Before getting into the specifics of the GAC safeguard advice, the following are some guesses about the implications and effects that will flow from it.

Timing of New TLD Introductions

From now until the end of the July 14-18 ICANN meeting in Durban, South Africa, the ICANN community will consider and react to the GAC Advice.

The time from Durban until the final meeting of 2013, November 17-21 in Buenos Aires, Argentina, will likely be the period of ultimate determination as to how much of it will be accepted by ICANN's Board, followed by implementation on the part of both ICANN and applicants.

ICANN's new TLD program committee, composed of non-conflicted Board members, has scheduled discussion of a "Plan for responding to the GAC advice issued in Beijing" as the only agenda item for its May 8 meeting.4 But substantive reaction is likely to await receipt and consideration of applicant and public feedback as well as staff analysis of both the communique and the comments.

As the GAC wants all new TLD safeguards to be subject to "contractual oversight" by ICANN it is highly probable that additional amendments to the proposed new TLD Registry Agreement (RA) will need to be drafted and put out for public comment prior to final adoption, adding some additional delay to the rollout of new TLDs.

Registry Operator Responsibilities

Acceptance of even portions of the GAC advice will likely impose duties on registry operators to update and strengthen their terms of service.

Registries will also need to submit or update Public Interest Commitments Specifications (PICS), and assume registrant monitoring and coordination duties with regulators and industry bodies that they probably did not envision or price into their business model.

Requirements that registries immediately suspend domains in certain circumstances could re-ignite "domain censorship" due process concerns that last flared during the PIPA/SOPA internet blackout.

Role of Governments at ICANN

ICANN's and key stakeholders' reactions to the GAC communique may well determine whether governments remain engaged in and embracing of the ICANN multistakeholder model — or begin to drift away.

Internet governance options exist outside of ICANN that are generally less favorable to and welcoming of contracted parties, business, and civil society. A multi-governmental shift away from ICANN would connote negative long-term implications for its existence. It could also eventually subject the DNS to a maze of disparate national laws and policies or the more worrisome specter of intergovernmental oversight far more intrusive than GAC advice.

ICANN, with the acquiescence of its multistakeholder community, will ultimately adopt a majority of the GAC recommendations in some form as doing so is in its long-term institutional interest.

Overall, the receipt of the GAC communique and ICANN's solicitation of applicant and public comments on it marks an inflection point for the organization, and the manner in which it assimilates the advice and the responsive feedback will define its working relationships with governments through the end of the decade, and perhaps beyond.

In their video interview at the conclusion of the Beijing meeting, Board Chairman Steve Crocker stated that the communique raised "interesting issues that have to be dealt with, and we'll be quite thorough about it." CEO Fadi Chehade committed that action would be taken only following consideration of public comment from the "entire community" along with staff analysis.

As it is not at all customary to subject GAC advice to direct public comment, this will be politically sensitive, complicated, and highly detailed work invoking multiple judgment calls.

New TLD Advice on Which ICANN Has Not Requested General Public Comment

The April 18 notice to new TLD applicants solicits feedback on every aspect of the GAC communique, with applicant responses to be published and provided to the full ICANN Board.

However, it is not clear whether individual applicant responses will be made public. Should any applicant respond to the GAC by seeking to file a PICS — which raises the collateral question of whether ICANN will waive the previously expired deadline for PICS submissions — those filings are made public at the updated application status page of the new TLDs website.

GAC advice affecting new TLD strings on which applicant feedback is being explicitly solicited, but general public response is not, includes:

Targeted Advice

Targeted advice against proceeding further on a specific application for .africa and one for .gcc, as well as on applications for .islam and .halal; and advice not to proceed beyond initial evaluation for two Chinese Internationalized Domain Name (IDN) strings (.shenzhen and .guangzhou) as well as the applications for .persiangulf, .amazon (and related IDNs in Japanese and Chinese), .patagonia, .date, .spa, .yun, .thai, .zulu, .wine, and .vin.

Written Briefing

The GAC's request for "a written briefing about the ability of an applicant to change the string applied for in order to address concerns raised by a GAC Member and to identify a mutually acceptable solution."

Such a briefing should also be made publicly available, as this is a critical issue for applicants and the general public because it relates to the central question of whether and the extent to which an applicant can amend its application to comply with a relevant GAC safeguard if it is adopted by ICANN.

Community Support

The GAC's view on community support for applications, in which it advises "that in those cases where a community, which is clearly impacted by a set of new TLD applications in contention, has expressed a collective and clear opinion on those applications, such opinion should be duly taken into account, together with all other relevant information."

That seems elementary, yet it fails to resolve ongoing disputes about whether or not certain strings legitimately fall into the "community" category, as well as who can legitimately claim to speak for the impacted community.

Singulars Versus Plurals

The GAC's belief that "singular and plural versions of the string as a TLD could lead to potential consumer confusion" and the consequent advice that the Board should "Reconsider its decision to allow singular and plural versions of the same strings."

This is a reaction to the February 26 decision of ICANN's string similarity panel that singulars and plurals of the same term did not create a probability of visual similarity confusion, a conclusion that many have categorized as clueless, as well as something that is likely to receive general public comment notwithstanding it falling outside the "safeguard' category.

At the Board-GAC interaction in Beijing, the Board advised the GAC that it would not second guess the Panel's conclusion and that "the ball is now in your [the GAC's] court."

The GAC has now forcefully tossed the ball back to the Board. Some ICANN constituencies have already weighed in with the view that singular and plural versions of a string should be placed in the same contention set.

IGO Protections

Reiteration of prior advice that "appropriate preventative initial protection for the IGO [Intergovernmental Organizations] names and acronyms on the provided list be in place before any new TLDs would launch."

The RAA

Advice that "the 2013 Registrar Accreditation Agreement should be finalized before any new TLD contracts are approved' with the notation that "The GAC also strongly supports the amendment to the new TLD registry agreement that would require new TLD registry operators to use only those registrars that have signed the 2013 RAA."5

IOC/Red Cross Protections

Strong advice that ICANN should "amend the provisions in the new TLD Registry Agreement pertaining to the [International Olympic Committee/Red Cross-Red Crescent] IOC/RCRC names to confirm that the protections will be made permanent prior to the delegation of any new TLDs.

PICs

A request for "more information on the Public Interest Commitments Specifications [PICS] on the basis of the questions listed in annex II."

These GAC-posed questions may become critical matters to be addressed, especially for applicants seeking strings in categories raising heightened GAC concerns as well as for third parties concerned by those applications. The questions raised in Annex II are addressed later in this article.

Annex I – The GAC's Proposed Safeguards

Annex 1 of the communique addresses "Safeguards on New TLDs" with introductory advice that "The GAC considers that Safeguards should apply to broad categories of strings. For clarity, this means any application for a relevant string in the current or future rounds, in all languages applied for."

The GAC is clearly stating that its advice should be interpreted and implemented broadly, not narrowly. This introduction further advises that all the proposed safeguards should "be implemented in a manner that is fully respectful of human rights and fundamental freedoms," "respect all substantive and procedural laws under the applicable jurisdictions," and "be operated in an open manner consistent with general principles of openness and nondiscrimination."

None of that seems particularly objectionable, but even this hortatory language raises such interpretative questions as to what are the "applicable jurisdictions" for a particular string — and how should operation in an open manner be squared with later admonitions relating to strings related to regulated industries and professions where domain registrations are to be circumscribed?

Safeguards Applicable to All New TLDs

The first detailed section of the advice proposes that six specific safeguards be applicable to all TLDs and "be subject to contractual oversight" by ICANN.

At a minimum, to the extent that ICANN accepts any of this it will then need to review the existing new TLD Registry Agreement (RA) — already the subject of some controversy, especially in regard to whether ICANN should have some unilateral right to amend it — and determine whether further amendments are needed to incorporate any parts of the GAC advice that are adopted.

As ICANN is not a governmental body and all of its powers over registries and registrars are derived via contractual enforcement, this is no small matter.

On April 29, ICANN published the Proposed Final New TLD Registry Agreement for public comment, open through June 11.6 Yet, except in the highly unlikely event that ICANN rejects all of the GAC's safeguards proposals, adoption of any of them would seem to inevitably require further amendment of the RA to spell out related, contractually enforceable registry obligations — with such further amendment triggering yet another period of public comment.

Further, as the following analysis illustrates, the question for ICANN's Board is not just whether to accept a particular safeguard but how to implement it in a manner that is effective yet reasonable. Determining the right balance will take time.

Six Basic Safeguards

The GAC's proposed six basic safeguards are:

1. WHOIS Verification and Checks

Registry operators are to conduct statistically significant checks at least twice a year on false, inaccurate, and incomplete WHOIS registrant identification data, and notify registrars of inaccurate or incomplete data.

This appears to impose proactive oversight and enforcement duties that registry operators were probably not contemplating. It also implicates matters addressed by the just-released-for-comment final Registrar Accreditation Agreement, as well as ongoing discussions focused on increasing WHOIS registrant data accuracy. All of these approaches must ultimately be reconciled and coordinated.

2. Mitigating Abusive Activity

Registrant terms of use must "include prohibitions against the distribution of malware, operation of botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law."

No one can be in favor of such activities, but that begs the questions of whether this imposes some affirmative oversight duty on registry operators, and what steps they should take to monitor compliance with and enforce such prohibitions. Also, in some instances the issue of whether a violation has occurred may not be discernible absent other adjudicative processes.

Trademark infringement, for example, is already the subject of the UDRP and national laws. It will also be addressed by the two new rights protection mechanisms — the trademark clearinghouse and uniform rapid suspension system in new TLDs — but all these mechanisms require some judicial or expert determination of where infringement has actually occurred.

Digital copyright infringement is an evolving and muddled area of the law in which courts in the same nation have reached sharply divergent opinions on similar fact patterns. While some "piracy' may be evident from a cursory review of a website, other alleged instances invoke unsettled legal issues. Ultimately, the question is whether registry operators should wait on law enforcement authorities or adjudicative processes to verify legally actionable harm, or take their own initiatives to identify and halt it.

3. Security Checks

In a bow to law enforcement concerns, registry operators are to periodically conduct technical analyses of whether domains are being used to perpetrate security threats "such as pharming, phishing, malware, and botnets," all the while "respecting privacy and confidentiality." Such information is already available from various industry groups, with existing registry operators typically engaged in these initiatives. In addition, the new TLD registry application process already includes security checks.

Nonetheless, this could require registries to take on proactive, quasi-police cybersecurity inquiries. More disturbingly, where security risks posing "an actual risk of harm" are identified, registry operators must notify the relevant registrar. If the registrar fails to "take immediate action" then the registry operator must "suspend the domain name until the matter is resolved."

This recommendation is almost sure to be controversial, as domain suspensions are widely viewed as equivalent to internet censorship. The notion that private parties will do this on their own accord, absent any due process requirements, and with no additional definition as to how or by whom the matter will ultimately be resolved, raises significant questions concerning registrant rights.

4. Documentation

Registry operators are to maintain statistical reports on inaccurate WHOIS records or security threats and provide them to ICANN on request. This advice does not seem particularly burdensome or controversial.

5. Making and Handling Complaints

Registry operators must have a mechanism for other parties to submit complaints about domains with inaccurate WHOIS information or domains being used to facilitate bad acts. This safeguard, motivated by growing concerns in regard to cybercrime, fraud, and abuse, is not particularly burdensome, either.

But questions remain unanswered: What is the registry operator's duty to further investigate such complaints, and what action should be taken if it finds them well-founded? Will ICANN's compliance staff have an intermediary role in this area?

6. Consequences

Registry operators must, "consistent with applicable law" — to the extent it exists or is clear — "ensure that there are real and immediate consequences for "domains with false WHOIS violations or being used in breach of "applicable law," and "these consequences should include suspension of the domain name."

Domain suspension, as was seen during the PIPA/SOPA debate, is viewed by many as synonymous with internet censorship, and the requirement that registry operators assume policing oversight powers may well generate substantial controversy. The requirement may also trigger discussion of the existence and adequacy of due process protections and a defined appeals process for affected registrants.

In sum, the six basic safeguards call for various oversight and investigative responsibilities that many registry operators may not have contemplated when they constructed their business plans.
Their implementation also may imbue registry operators with certain additional domain enforcement powers that in turn raise related due process questions.

To some extent, these recommendations may be an attempt by fiscally-strapped governments to place the costs of policing and subduing negative externalities resulting from new TLDs back onto registry operators, minimizing the need for potential allocation of substantial new public sector resources focused on law enforcement and cybersecurity.

Additional Safeguards for Particular Categories of New TLDs

Beyond those six basic safeguards recommended for all new TLDs, the GAC prescribes additional safeguards for strings related to regulated or professional sectors for which end users generally anticipate targeted protections.

The communique states:

Strings that are linked to regulated or professional sectors should operate in a way that is consistent with applicable laws. These strings are likely to invoke a level of implied trust from consumers, and carry higher levels of risk associated with consumer harm.

The dozen sectors identified by the GAC for application of these additional safeguards, accompanied in the communique by a non-exhaustive list of TLD applications asserted to fall within them, are:

children,
environmental,
health and fitness,
financial,
gambling,
charity,
education,
intellectual property,
professional services,
corporate identifiers,
generic geographic terms, and
inherently governmental functions.

One may certainly question why certain TLD applications made the GAC's nonexclusive list or have been placed in particular categories.

For example, .free, .gratis, .discount and .sale are all placed in the intellectual property category even though they might attract domains with no relationship to goods and services of a primarily IP nature. And .law is given its own separate listing rather than being placed in the professional services category along with .abogado, .attorney, .lawyer and .legal.

But, for the present purpose of this analysis, all the specifically listed applications are potentially subject to the additional safeguards depending on follow-up ICANN action. Other applicants with any possible relationship to the identified sectors should presume that they may be similarly affected before this process concludes. Those applicants, along with parties with concerns about or opposed to specific strings, should thoroughly review this advice.

Proposed Additional Safeguards for Regulated, Professional Sectors

The additional safeguards proposed for regulated and professional sectors — accompanied by some observations — are:

1. Applicable Use Policies.

Registry operators will include in their acceptable use policies a requirement that registrants comply with all applicable laws, including those that relate to privacy, data collection, consumer protection, fair lending, debt collection, organic farming, disclosure of data, and financial disclosures.

It seems axiomatic that registry operators must be in compliance with applicable laws of all types.

However, the questions raised again by such general use policies is to what extent a registry operator will be expected to proactively police and directly enforce them, and what are the applicable laws for a particular domain registrant?

What is a registry operator expected to do, for example, if a registrant is accused of operating in violation of a particular nation's laws and the registrant responds that under applicable principles for determining jurisdiction it is not subject to those laws? These are roles and decisions that have traditionally been delegated to law enforcers, regulators, and judicial forums, not to private parties lacking adjudicative expertise under contract to a nonprofit corporation.

2. Notifications.

Registry operators will require registrars at the time of registration to notify registrants of this requirement.

This is a relatively straightforward requirement to implement, although it will require registrars to identify and separate out affected TLDs and provide additional disclosures at or in close proximity to the time of domain registration.

It also highlights the fact that it is registrars, not the registry operators of new TLDs, who have direct contact and contractual relations with registrants. To the extent that registrars of particular TLDs are tasked with going beyond offering a simple domain purchase interface to registrants, and must provide and obtain acceptance of particular disclosures — much less ascertain that registrants satisfy relevant registration eligibility criteria — this will both complicate the domain registration process and generate costs that must be reflected in compensation arrangements with the registry operator as well as in the prices charged to registrants.

The only exception to the registrar standing as a separate intermediary between the registry operator and the registrant will be those instances in which the registry operator has directly affiliated with a registrar, now that ICANN has relaxed the former prohibition against such relationships — although, even then, for all but ".brand" or whatever other "closed generic" TLDs are permitted, there will likely be many unaffiliated registrars offering identical domain registration and renewal services for the TLD.

3. Security for Sensitive Data.

Registry operators will require that registrants who collect and maintain sensitive health and financial data implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law and recognized industry standards.

While clearly having direct bearing on registrants at strings falling within the health and fitness and financial categories, this safeguard may also implicate others — as an example, at such professional services strings as .accountant(s), .doctor, and .realtor, where registrants will likely collect and maintain confidential health and financial data.

Again, the more difficult issues are what are the "reasonable and appropriate security measures" that registrants should implement to safeguard such data, what monitoring and enforcement duties are expected of registry operators to assure compliance, and what constitutes the "applicable law and recognized industry standards' that should be looked to in establishing relevant security measures?

The proper standards for protection and disclosure of sensitive digital data remain one of the most hotly debated matters of 21st century cyberlaw and policy, with sharp disagreements between governments and with and within affected industries — yet registry operators are being asked to require the implementation of responsive security measures by their registrants.

4. Working Relationships.

Establish a working relationship with the relevant regulatory, or industry self-regulatory, bodies, including developing a strategy to mitigate as much as possible the risks of fraudulent, and other illegal, activities.

For registry operators of TLDs falling within the listed sectors this would require an ongoing, perpetual establishment of a "working relationship" — but with whom? As one example, with what financial regulatory authorities and industry self-regulatory bodies located in which nations must the operator of .retirement establish a working relationship?

Is it to be based upon the nations to which .retirement registrants direct their activities, or must it involve global outreach so that any potential future registrant and its customers will be accommodated by an already existent working relationship? And what would comprise an effective strategy to mitigate potential fraud or other illegal activities by registrants — would this require proactive engagement, monitoring, and enforcement by registry operators, who may well be asked by regulators to establish such frontline risk mitigation activities?

Overall, this safeguard must be read in conjunction with the others, with the expectation that regulators will likely seek proactive registry operator involvement in the development and implementation of risk mitigation strategies.

Further, registry operators must take into account that a TLD is a global DNS resource. A registrant eligibility policy or regulatory engagement approach too narrowly focused on a specific nation(s) or region may well and rightly be criticized by potential registrants, consumer groups, and other public and private sector entities.

5. Single Point of Contact.

Registrants must be required by the registry operators to notify them of a single up-to-date point of contact for the notification of complaints or reports of registration abuse, as well as the contact details of the relevant regulatory, or industry self-regulatory, bodies in their main place of business.

Single points of contact are already standard practice for ISPs and web hosting companies. This safeguard again places a duty upon registry operators to obtain information from registrants with whom they otherwise likely have no direct dealings or contractual relationship. While the actual information that must be obtained — the unitary contact point for urgent notifications of reported abuse at a website — is relatively simple, the question again arises regarding whether the registry operator has a duty to validate this data on an initial or continuing basis.

Further, since this safeguard relies on the registrant to designate the contact details for what it claims to be its relevant regulatory and industry self-regulatory bodies in its main place of business, is there any duty for the registry operator to investigate whether the registrant has accurately done so? And does "main place of business" just cover the jurisdiction in which the registrant is domiciled — or all the additional jurisdictions in which it conducts or may seek to conduct substantial volumes of business with customers (e.g., a Bahamas-based .insurance registrant soliciting and conducting business in the U.S., E.U., and certain Latin American nations)?

Miscellaneous 'Gripe Site Registry Advice

In related GAC advice, applicants for the .fail, .gripe, .sucks, and .wtf TLDs are singled out to "develop clear policies and processes to minimize the risk of cyber bullying/harassment."

Such "criticism" TLDs could be particularly susceptible to such abuses — though they already exist today, often centered in "closed garden" social media platforms.

Further Targeted Safeguards

In addition to the six basic safeguards and the five additional ones for regulated and professional sectors, the GAC has also proscribed three additional safeguards for at least seven of the twelve sectors listed above — financial, gambling, professional services, environmental, health and fitness, corporate identifiers, and charity.

These additional safeguards are aimed at "market sectors which have clear and/or regulated entry requirements in multiple jurisdictions," and are applicable to some of the strings in the listed sectors — although the GAC provides no guidance as to which strings might be exempt and on the basis of what criteria exemptions might be granted or denied.

These further targeted safeguards consist of:

1. Added Checks

At the time of registration, the registry operator must verify and validate the registrants' authorizations, charters, licenses, and/or other related credentials for participation in that sector.

This verification and validation duty is placed on the registry operator, rather than the registrar who interfaces with the registrant at the time of registration. While the registry operator night prefer to delegate such responsibilities to registrars with which it has established business relationships, doing so as a thousand-plus diverse TLDs launch could prove infeasible.

Thus, there are questions of how such a process would be coordinated and the status of a registrant's registration until such time as the verification/validation duty is completed. It clearly places significant new responsibilities on registry operators — although one that is already managed by many ccTLD operators — that will entail the use of in-house or outside compliance counsel and staff.

2. Consultations With Regulators

In case of doubt with regard to the authenticity of licenses or credentials, registry operators should consult with relevant national supervisory authorities, or their equivalents.

This would require each registry operator to develop policies relating to how authenticity of credentials will be evaluated, as well as establish relationships with relevant supervisory authorities in all nations in which registrants may be domiciled or otherwise have significant jurisdictional contacts.

Again, this creates additional significant new compliance responsibilities likely to require increased staffing by both registries and ICANN.

3. Post-Registration Checks

The registry operator must conduct periodic post-registration checks to ensure registrants' validity and compliance with the above requirements in order to ensure they continue to conform to appropriate regulations and licensing requirements and generally conduct their activities in the interests of the consumers they serve.

This would place a continuing, post-registration duty on registry operators to not just confirm the regulatory compliance and licensing validity of registrants but to make a subjective judgment on whether they are conducting their activities in consumers' interests.

This raises the issue of whether it is reasonable and appropriate to place such subjective judgment responsibilities on what are primarily providers of technical DNS services. On the other hand, TLDs aiming to serve specialized communities associated with regulatory and licensing requirements may wish to accept this GAC advice and address it via responsive PICs as well as cooperative engagement with ICANN compliance staff to develop reasonable yet effective enforcement mechanisms.

Restricted Registration Policies — Limited or Exclusive Strings

In addition to the above proposed safeguards, the GAC provided advice regarding restricted or exclusive access to strings.

First, as "an exception to the general rule that the TLD domain name space is operated in an open manner registration may be restricted," with such restrictions being particularly applicable for strings subject to the extra safeguards for regulated and professional sectors — especially including those with entry requirements.

However, the GAC advice proposes that such registration restrictions be administered by registry operators "in a transparent way that does not give an undue preference to any registrars or registrants, including itself, and shall not subject registrars or registrants to an undue disadvantage."

In other words, registrant entry can be restricted, but the restrictions must be geared to the relevant risks associated with the TLD. The restrictions must also be transparent and neutral under the subjective standard of not providing an "undue preference [or] disadvantage."

What this means in practice will likely be a subject of some debate, and certainly provides an opening for any party who believes that a TLD's proposed registration restrictions seek to advance goals other than legal/regulatory compliance and consumer protection — such as granting an undue competitive advantage to a subset of potential registrants, or seeking to advance policy goals within the TLD program that more properly should fall to legislators or regulators.

The second and final bit of GAC advice in annex I addresses the controversial subject of "closed generic" TLDs, for which ICANN recently conducted a public comment period which attracted one of the largest numbers of comments in recent years.7

That extensive public feedback has so far resulted in no formally announced ICANN policy or position. Amazon, Google, and other business applicants from both the United States and abroad have applied for generic word domains in which they hold no trademark rights yet for which they have proposed to be the sole registrant.

Critics of "closed generic' TLDs have charged that they are fundamentally incompatible with the new TLD program's stated goal of fostering innovation and competition. Google, for one, has responded to such criticism by proposing significant alterations for four of its most controversial applications.

On this hot button subject, the GAC simply states, "For strings representing generic terms, exclusive registry access should serve a public interest goal." That statement is followed by a non-exhaustive list of strings identified by the GAC as constituting generic terms.

Registry Operator Code of Conduct

It appears that this is one bit of GAC advice that ICANN may have already taken into account.

The revised RA released by ICANN on April 29 proposes to strike the phrase "that are reasonably necessary for the management, operations and purpose of the TLD" from Section 1b of Specification 9, otherwise known as the "REGISTRY OPERATOR CODE OF CONDUCT" (COC). The proposed changes would replace the provision with authorization for the registry operator to allocate up to 100 domain names for its own exclusive use.

That deleted phrase constituted the prior parameters of the exception to the general rule that a registry operator will not register domain names in its own right — and some closed generics applicants had argued that the word "purpose" permitted avoidance of seeking a sole registrant exemption under Section 6 of the COC.

Presuming that deletion carries through the public comment and Board approval process for the revised RA, it would seem that closed generic applicants may now have no way to avoid seeking a formal exemption from ICANN.

ICANN staff provided no comprehensive explanation of the intended purpose of these proposed amendments to the evolving contractual documents, so there may well be parties who interpret this alteration differently.

The exemption language of Section 6 remains unchanged in the revised RA, and allows ICANN to grant an exemption in its "reasonable discretion" if a registry operator demonstrates to ICANN's reasonable satisfaction that:

• all domain name registrations in the TLD are registered to, and maintained by, registry operator for its own exclusive use,
• registry operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an affiliate of registry operator, and
• application of the code of conduct to the TLD is not necessary to protect the public interest.

Thus, the GAC's admonition that closed generics must "serve a public interest goal" dovetails well with the Section 6 requirement that ICANN must determine that permitting closed generic operation is not adverse to the public interest — if all TLDs that propose to have the registry operator as sole registrant are indeed required to affirmatively seek an exemption.

The matter is not fully settled, as ICANN must still determine general principles to decide when application of the code of conduct is not necessary to protect the public interest. ICANN must then apply those principles on a case-by-case basis for those proposed closed registries that can still muster a convincing rationale for exemption.

It is quite possible that ICANN might find a public purpose in protecting trademarks at the top level of the DNS for non-generic, trademarked term ".brand" TLD applications.

The revised RA contains multiple, extensive additional revisions beyond the code of conduct changes that may also be highly controversial.

For example, on May 1 VeriSign Inc. filed an aggressive comment letter on the registry agreement,8 complaining that:

ICANN has broadened its unilateral amendment rights even further under a new and never before disclosed Section 7.7 which permits ICANN to make changes to the registry agreement on subjects that even the consensus policies are explicitly prohibited from considering — and beyond ... Under its bylaws, ICANN is to serve the Internet community based on bottom-up, transparent decision making. Sections 7.6 and 7.7 are the antithesis of lCANN's core values. They should not become part of registry agreements.

The Governmental Advisory Committee and Commerce Dept. should rein in any such unprecedented expansion of ICANN's powers. In the Affirmation of Commitments, the DOC affirms its commitment to a private sector led, bottom-up policy development process. Sections 7.6-7.7 seek the opposite.

As one example of what VeriSign purports ICANN could do unilaterally, "without governmental oversight and over the objections of registry operators," the letter states that:

ICANN unilaterally determines that no new TLDs should be operated in a closed manner and amends the agreement to require all TLDs to be open, endangering established registry business model.

However, as discussed, governments represented on the GAC have already given consensus advice that closed registries must further public interest goals — and many parties who filed public comments on "closed generics" wanted ICANN to ban them outright.

Regardless of the final provisions of the RA relevant to closed generics, the GAC's position is now clear — a string in which the registry operator is the only permissible registrant must serve a public interest goal. As for the overall RA, the new TLD program cannot go forward until all remaining disputes are resolved and it is made final, as there must be a standard contract document for registry operators to sign before their new TLDs can go forward.

Annex II – The GAC's PICs Questions

As noted earlier in this article, in the main body of the communique the GAC requests additional information on eight PICs-related questions contained in Annex II.

These questions relate to such matters as:

• Third-party and governmental intervention and objections;
• Availability of a PICs amendment process;
• Registry and public awareness of their commitments;
• Remedies for failure of a registry operator to submit PICs;
• Enforceability of PICs, whether by contract compliance or additional means; and
• ICANN criteria for acting on the recommendations of the PICs Dispute Resolution Provider (DRP).
• Remediation methods for registration policies resulting in harm.

While PICs were originally put on the table as an optional means for applicants to demonstrate their commitment to and recognition of responsibility to operate a particular TLD in a beneficial and non-abusive manner, many applicants did not file them because the self-imposed obligations result in no offsetting application award benefit.

The new TLD program rules encourage applicants for the same string in contention sets to resolve matters among themselves. Failing that, contention sets will be settled by auction where the highest bid settles matters irrespective of PICs or other qualitative applicant commitments.

Now the GAC communique may well be pushing PICs toward the status of mandatory and enforceable guarantees. Indeed, a few months ago the United States suggested that all TLD applicants should submit PICs — especially for categories of strings for which the GAC has requested additional safeguards.

If that is the case, then ICANN will eventually need to reopen the PICs submission window. Once filed, PICs are made available for public inspection — although not direct public comment — at the new TLD current application status page.9

Enforcement of Accepted GAC Advice

ICANN's Board consideration of the GAC communique is now clearly underway. The process raises threshold questions of whether and how various categories of GAC recommendations will be accepted, as well as multiple subsidiary issues of consideration of public comments, modification and implementation.

While we don't yet know which of the GAC advice will be accepted by ICANN, or with what modifications or implementation details, the realpolitik's of the current situation appear to dictate that a substantial number will find themselves into the final requirements for the first round of new TLDs.

That raises the question of how the safeguards and other accepted elements of GAC advice can be implemented in a manner that is "subject to contractual oversight by ICANN."

The standard approach would be to amend the RA so that the requirements for all similarly situated registry operators are uniform. But that could well require substantial additional delay in the new TLD program — first to draft concrete expressions of broad and subjective requirements and devise appropriate enforcement criteria, and then to republish the amended RA for further public comment.

The apparent controversy being generated by the April 29 RA revision drives home the possibility of extended delay.

The alternative approach would be to reopen the PICs window and require all applicants to submit initial or revised PICs that address the GAC's safeguards and other accepted advice.

But that would place an enormous review and feedback/revision burden on ICANN staff, as well as result in significantly disparate approaches and commitments from applicants seeking to operate in the same sector categories.

If a standard approach to consumer protection and harm mitigation are the main goals then a uniform approach through RA modification would seem the best route to assuring consistent implementation of safeguards.

Realpolitik 101: Substantial Portions of the GAC Communique Will Be Accepted and Implemented

Critics of the Beijing GAC communique may well assert that it comes two years too late, imposes inappropriate and vague burdens on registry operators that negatively impact their business models, gives governments an inappropriately enhanced role in ICANN's multistakeholder process, offloads governmental responsibilities onto the private sector, and will cause further delay in the new TLD program, among other complaints.

While there is some justification for those assertions, they are also beside the point.

ICANN is a unique and inherently fragile entity — a standalone nonprofit corporation imbued with authority to manage the addressing system of the most powerful global telecommunications network ever devised, dealing with issues that routinely intrude on legal and policy decisions normally the province of national governments or multinational organizations.

While freed of formal U.S. oversight in 2009, ICANN lacks the mass and velocity to escape governmental oversight of some type. Further, with ICANN no longer under the clear protective wing of a superpower, it must forge a rapprochement with the multi-governmental GAC to assure long-term viability.
Despite its CEO's articulation of "the multi-equal stakeholder model," in ICANN world, as in Orwell's Animal Farm, some stakeholders are more equal than others.

The Beijing communique can be regarded as the completion of a four-year governmental journey within ICANN since the termination of formal U.S. oversight and its replacement by the Affirmation of Commitments (AOC). There should be no surprise that it took so long — governments are by nature reactive and risk-averse entities, and the scale of the TLD program and the unexpected issues that developed added to the response time.

GAC members arrived early in Beijing and labored long hours over the course of an entire week to produce the communique. In a way, that commitment of time and effort, and the delivery and content of the document, signaled a broad multi-governmental embrace of the ICANN model and of the new TLD program. Imagine if, instead of proposing safeguards, the GAC had announced that the perceived threats to consumer protection, intellectual property, online competition and innovation, DNS stability and security, and other potential negatives generated by the program simply outweighed the potential benefits — and that therefore it should be halted. ICANN and applicants would now be in a crisis state if that had occurred.

If ICANN were now to reject the bulk of the GAC safeguards and other recommendations there might be no immediate dire consequences. What there likely would be is a collective decision by many governments that ICANN involvement is not worth the time and expense, and a drifting away of government involvement.

If, on the other hand, ICANN now adopts, with reasonable modifications, the bulk of the GAC advice it will provide the feedback that participating governments need to justify continued engagement — as well as to defend ICANN's model within other forums.

Continued Threats From ITU

The threat to ICANN's role and existence is far from dissipated — the International Telecommunication Union (ITU) will hold its World Telecommunication Policy Forum (WTPF) in Geneva this month, and the UN Internet Governance Forum is preparing for its next meeting in Bali, Indonesia. ICANN must continue to befriend governments, not alienate them.

A general embrace of the GAC communique can help ensure ICANN's long-term support from governments and thereby its survival — and, as for most organizations, self-preservation is a high priority. The survival of ICANN, whatever its flaws, is also better for business, civil society, and other constituencies than ICANN's replacement by a DNS manager in which governments have control rather than just substantial influence.

The GAC communique and responsive requests for comments provide an opportunity for everyone involved in ICANN and every interest affected by the new TLD program to submit final input on its proposed framework for the launch of new TLDs. Yes, it will likely cause some delay; and yes, it will impose unanticipated duties and responsibilities on all registry operators, particularly those seeking to operate strings related to sensitive sectors. But it also provides a blueprint for the means by which ICANN and registry operators can work cooperatively with the global public sector in decades to come.

i http://www.icann.org/en/news/announcements/announcement-2-10may13-en.htm

ii http://www.icann.org/en/groups/board/documents/agenda-new-gtld-18may13-en.htm

iii http://www.icann.org/en/news/press/kits/video-gac-advice-10may13-en.htm

iv http://forum.icann.org/lists/comments-gac-safeguard-advice-23apr13/

1 https://gacweb.icann.org/display/gacweb/Governmental+Advisory+Committee

2 http://newgtlds.icann.org/en/announcements-and-media/announcement-18apr13-en

3 http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm

4 http://www.icann.org/en/groups/board/documents/agenda-new-gtld-08may13-en.htm

5 The Proposed Final 2013 RAA was issued for public comment on April 22, with the initial and reply comment periods ending on June 4 — see http://www.icann.org/en/news/public-comment/proposed-raa-22apr13-en.htm

6 http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm

7 http://forum.icann.org/lists/comments-closed-generic-05feb13/

8 http://forum.icann.org/lists/comments-base-agreement-29apr13/msg00000.html

9 https://gtldresult.icann.org/application-result/applicationstatus

Copyright © 2013 by The Bureau of National Affairs, Inc.

Reproduced [or Adapted] with permission from Electronic Commerce & Law Report, Vol. 18, No. 20 (May 7, 2013). Copyright 2013 The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com.

Written by Philip S Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm

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More under: DNS, Domain Names, ICANN, Internet Governance, Law, Policy & Regulation, Top-Level Domains

It's safe to say that with just a week to go before ICANN intended to sign the first contract for a new gTLD, the last thing anyone wanted was a 12-page document from the world's governments with 16 new "safeguards", six of which it wants to see applied to every new extension.

But what the industry shouldn't overlook, especially in the face of the expected critical responses this week and next, is that the Governmental Advisory Committee's (GAC's) formal advice from the ICANN Beijing meeting represents an opportunity for the domain name industry to lock-in self-regulation at a critical point in its evolution.

IFFOR has been focused for some time on the question of what registries will need to do in a world where domain names can end in any word. As such, we see the GAC advice as a simple reflection of genuine, and understandable, concerns from a body whose main job is to identify public policy issues.

It is also nothing new: IFFOR went through this exact process to find policy solutions to questions raised by GAC over the dot-xxx top-level domain. Many of the same issues are present in this most recent advice — something we highlighted at the beginning of the year.

So here is the good news: it is perfectly possible to find a simple, effective and lightweight solution that will meet the concerns of governments — including that it be contractually binding — while keeping ICANN firmly out of content regulation.

It is also possible to do it right now without compromising business plans, redrawing financial projections, or seeking hundreds of thousands of dollars in new investment.

So what is this solution?

As part of the process for reaching agreement with both ICANN and the GAC over the dot-xxx top-level domain, a set of "baseline policies" was created (by IFFOR) to demonstrate a clear commitment to resolving concerns.

Those baseline policies covered issues such as:

• Scanning domains for malware, spam and phishing
• Audit and compliance systems
• Enhanced trademark protections
• Handling complaints
• Registrant verification
• Tackling child abuse images
• Disqualifying applicants that consistently break the policies

The implementation of those policies was then left up to the registry operator — ICM Registry — and IFFOR was also given the role of auditing the subsequent systems.

In response to the GAC advice in Beijing, IFFOR is close to completing a new set of "Safeguard Policies" designed specifically to encompass the six most broad safeguards that the GAC wishes to see apply to all new gTLDs.

In so doing, we have drawn on our original "baseline policies" to develop policies for the gTLD market as a whole, and have used our experience as a registry policy body to ensure all six GAC safeguards are fully addressed.

In an effort to make this work as widely accessible as possible, we plan to simply license these policies for a low annual fee. As well as the right to use, publish and reference the Safeguard Policies, each license will come complete with documentation to help registries implement each policy in the way most suited to their circumstances. We will also extend IFFOR's internal information service that provides ongoing information on related policy and regulatory topics to all licensees. Again, for one, low annual fee.

We believe this approach solves a number of issues:

• It provides applicants with a simple, swift and low-cost answer to government concerns
• It answers government calls for new safeguards
• It builds on a contractual solution that has already been shown to work within the ICANN system
• It removes the need and cost for applicants to develop their own policies
• It keeps the new gTLD program on track

Perhaps most importantly, adopting such an approach will give the industry a chance to demonstrate that it is committed to be a good actor while retaining the flexibility to develop the right systems for the right markets in the right way.

The mark of a self-regulated market is how well it responds to issues identified by a third party. With the right mix of creative pragmatism, the GAC safeguard advice can act as a catalyst for this industry.

If you are interested in learning more about IFFOR's Safeguard Policies, please visit our website at http://iffor.org/safeguard.

Written by Kieren McCarthy, Executive Director at IFFOR; CEO at .Nxt

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More under: DNS, Domain Names, Registry Services, ICANN, Internet Governance, Regional Registries, Top-Level Domains, Whois

Netflix is arguable one of the world's biggest users of cloud computing, renting all its computing power from Amazon Web Services, the cloud division of Amazon.com, which runs its own video-streaming service that competes with Netflix. Ashlee Vance from Bloomberg reports:

"Netflix has more than 36 million subscribers. They watch about 4 billion hours of programs every quarter on more than 1,000 different devices. To meet this demand, the company uses specialized video servers scattered around the world. When a subscriber clicks on a movie to stream, Netflix determines within a split second which server containing that movie is closest to the user, then picks from dozens of versions of the video file, depending on the device the viewer is using. At company headquarters in Los Gatos, Calif., teams of mathematicians and designers study what people watch and build algorithms and interfaces to present them with the collection of videos that will keep them watching."

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More under: Cloud Computing, Data Center

Netflix is arguable one of the world's biggest users of cloud computing, renting all its computing power from Amazon Web Services, the cloud division of Amazon.com, which runs its own video-streaming service that competes with Netflix. Ashlee Vance from Bloomberg reports:

"Netflix has more than 36 million subscribers. They watch about 4 billion hours of programs every quarter on more than 1,000 different devices. To meet this demand, the company uses specialized video servers scattered around the world. When a subscriber clicks on a movie to stream, Netflix determines within a split second which server containing that movie is closest to the user, then picks from dozens of versions of the video file, depending on the device the viewer is using. At company headquarters in Los Gatos, Calif., teams of mathematicians and designers study what people watch and build algorithms and interfaces to present them with the collection of videos that will keep them watching."

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More under: Cloud Computing, Data Center

"In apparent observation of international trade sanctions against Syria, a U.S. firm that ranks as the world's fourth-largest domain name registrar has seized hundreds of domains belonging to various Syrian entities, including a prominent Syrian hacker group and sites associated with the regime of Syrian President Bashar al-Assad," reports Brian Krebs. "The apparently coordinated action ended with each of the site's registration records being changed to include Web.com's Florida address, as well as the notation 'OFAC Holding'."

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More under: Domain Names

"In apparent observation of international trade sanctions against Syria, a U.S. firm that ranks as the world's fourth-largest domain name registrar has seized hundreds of domains belonging to various Syrian entities, including a prominent Syrian hacker group and sites associated with the regime of Syrian President Bashar al-Assad," reports Brian Krebs. "The apparently coordinated action ended with each of the site's registration records being changed to include Web.com's Florida address, as well as the notation 'OFAC Holding'."

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More under: Domain Names

We have reported in the past on the rapid decline of the copper telecoms network in the USA. A decade ago BuddeComm predicted that it would be impossible to move two customer access networks in parallel towards the new fibre future, the one operated by the telcos and the other operated by the cable companies. At that stage we indicated that a possible outcome could be that the telcos would upgrade their networks to FttH and that the cable companies would become the key tenants on that network.

This however, turned out not to be the case. The telcos were late moving into broadband, while the cablecos embraced these new opportunities and rapidly obtained a 50%+ share in the broadband market. For a long time the market anticipated that the telcos would fight back and regain their share: this never happened and the cablecos were able to extend their lead further. With 90% cable penetration in the country they had a captive market.

Cablecos have also made considerable investments in network upgrades since 1996, including the rebuilding of around 1.6 million kilometres of cable plant. The vast majority of this infrastructure uses DOCSIS3.0 technology, which is far superior to the DSL products which telcos offer. The latest cable upgrade to DOCSIS3.1 promises a significant enhancement, which should be a great concern to telcos which, having failed to invest in FttH networks, are unable to compete with the technical ability of cable networks. Last year the telcos declared defeat and indicated that they would start closing down parts of the PSTN.

Interestingly, these developments align with the discussions I had over the last few years with the newly nominated FCC chairman Tom Wheeler. He is also on the public record on this issue, believing that the PSTN would end its life around 2018 and that the cable companies would become the key broadband providers. Of course, with his extensive background in the mobile industry he also sees a golden future for mobile communications, since these players would start taking over large parts of the PSTN, especially for telephony services.

One of the most serious problems that the telcos are facing is the escalating cost of maintaining copper plant — this is estimated to increase from $2.72 per line in 2007 to $17.50 by 2018. This rapid rise is a combination of real cost increases, because of the aging nature of the network, as also because telcos are actively reducing the number of users and so the cost has to be shared among fewer customers. Another reason for the rapid increase is that for decades past maintenance as been deferred.

Clearly the telcos are not closing down all of the PSTN willy-nilly. They do have good quality infrastructure that can deliver quality DSL services, and they will milk that infrastructure for as long as possible. This will specifically be targeted in areas where it is relatively cheaper to maintain the copper network. The main casualty here will be areas of rural America, where maintenance costs are higher and where there are relatively few competing cablecos operating. As a result, many of these telcos' customers will only have mobile networks to access both voice and data services.

Another, perhaps even more serious issue — and one that the new FCC chair will have to face — is the rapid monopolization of the fixed broadband sector, with one cableco being the sole provider. These companies operate within franchises, so there is no competition between them. Currently there are no policies in place that regulate this situation, and with the American plutocracy in full force it will be interesting to see if any action will (or can) be taken by the FCC to rein in this emerging monopoly.

In the meantime the telcos are also under attack from companies such as Google: Google alone has refigured the landscape, having invested in FttH networks with great success. These companies' high take-up rate is worrying both the telcos and the cable companies, who all charge exorbitantly high prices for services similar to the ones that Google now offers at close to half the price. They are increasingly working with municipalities around the country, many of whom either operate FttH networks or would like to do so but are blocked by court rulings forced upon them through the lobbying of vested telco and cable interests. Based on the strong American conviction that government (including local government) should not be involved in telecoms infrastructure, they get away with it. Increasingly however, citizens are asking why local councils can be involved in electricity infrastructure but not in telecoms infrastructure. There is a growing political groundswell that is providing municipalities with greater freedom to be involved in such infrastructure developments.

This could become a turning point in the American telecoms industry. Potentially it could also see the telcos returning to the market rather than retreating from it, this time starting from scratch by building new fibre infrastructure.

Written by Paul Budde, Managing Director of Paul Budde Communication

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More under: Access Providers, Broadband, Telecom

There are fascinating ideas about how, when and more than everything: who is going to earn money from gTLDs?

I think back-end registry providers will earn money, some applicants will earn money too but my experience launching Eurid, the registry for .EU, reminded me one thing: these days, just before launching, until the (first) Sunrise period is launched. These days are special because the entire team is prepared, has been trained, and knows what to do.

So why were these days special and what does it have to do with earning money?
Well… it is very simple but I will let you guess a little more…

I remember these days when I was working on support to Registrants. Eurid was special because we could not launch until we had, at least, one accredited Registrar from every country in the European Union and we had to be able to provide support in most languages. Though.

Support to Registrants

I talk to a lot of applicants and I like to ask this question about support and my question is very basic: "what do you do before the Sunrise period when the phone starts to ring?"

I am not sure all applicants are considering this question. I think they should and here is why.

Domain names are such a boring thing that many brand owners don't want to consider they are important until the last minute and guess what are the 2 questions your support is going to have to answer most of the time when the phone can't stop ringing before the launching:

1 - "how do I register my domain name?";
2 - "how do I protect my brand as a domain name?".

When it becomes important for a brand owner, he calls the Registry, not necessarily his Registrar.

This is where the support to Registrants (at the Registry and at the Registrar) is going to work for the Trademark Clearinghouse. In the ICANN new gTLD program, new Registries and all existing Registrars are becoming the support of the Trademark Clearinghouse who's going to take their client's money. Good deal isn't it? There should be more than a thousand of Accredited Registrars, Hundreds of Registries, and many IP providers to become the sales force of the Trademark Clearinghouse.

In the past, a Registrant did not have to go through this process. With new gTLDs, he is forced to if he wants to "protect" his brand and register in the Trademark Clearinghouse.

So Yes, the Trademark Clearinghouse is also a monopoly in the new gTLD program and I think it will be one of these organizations to earn A LOT of money.

Written by Jean Guillon, New generic Top-Level Domain specialist

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More under: Top-Level Domains

The internet in Syria appears to have returned after a nationwide blackout knocked the country offline for more than 19 hours. Monitoring company Renesys noted signs of activity at around 14:30 GMT (17:30 local time) on Wednesday. Local state-run media had reported earlier that a "fault in optical fibre cables" was to blame for the blackout. However, experts dismissed this explanation as "unlikely".

Read full story: BBC

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The internet in Syria appears to have returned after a nationwide blackout knocked the country offline for more than 19 hours. Monitoring company Renesys noted signs of activity at around 14:30 GMT (17:30 local time) on Wednesday. Local state-run media had reported earlier that a "fault in optical fibre cables" was to blame for the blackout. However, experts dismissed this explanation as "unlikely".

Read full story: BBC

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More under: Access Providers

In 2012 I wrote a blog on CircleID called State hacking: Do's and don'ts, pros and cons. In this post I give some thoughts to the concept of a government "hacking back" at criminals. The reason for this was an announcement by the Dutch government that it contemplated law along these lines. The proposed law is now here: the Act Computer Criminality III.

Although the idea originally was to hack into untraceable servers that could (most like would) be based abroad, now it appears that the Dutch government has used its imagination some more. Hacking devices, the obligation to cooperate in an investigation against oneself by providing passwords, tapping devices and e.g. Skype, it's all in the concept. Not surprisingly there is a lot of commotion from privacy advocates and organisations.

Anyway, I've had my say in the mentioned blog post and reiterate that this is a very, very sensitive topic, that could cross boundaries that we as society may not want to cross. Let me provide you with some links, so you can study it yourself. Unfortunately everything is in Dutch. Below you find links to the law texts, including explanations/intentions and a link to a blog post by PHD student Jan Jaap Oerlemans of the University of Leiden who provides some excellent observations.

Here's the official government publication on the law with links to the actual texts.

Here's the link to Jan Jaap Oerleman's blog.

Written by Wout de Natris, Consultant international cooperation cyber crime + trainer spam enforcement

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More under: Cybercrime, Internet Governance, Law, Policy & Regulation, Privacy, Security

In the wake of increasingly lenient bring your own device (BYOD) policies within large corporations, there's been a growing emphasis upon restricting access to business applications (and data) to specific geographic locations. Over the last 18 months more than a dozen start-ups in North America alone have sprung up seeking to offer novel security solutions in this space — essentially looking to provide mechanisms for locking application usage to a specific location or distance from an office, and ensuring that key data or functionality becomes inaccessible outside these prescribed zones.

These "Geo-locking" technologies are in hot demand as organizations try desperately to regain control of their networks, applications and data.

Over the past 9 months I've been asked by clients and potential investors alike for advice on the various technologies and the companies behind them. There's quite a spectrum of available options in the geo-locking space; each start-up has a different take on the situation and has proposed (or developed) a unique way in tackling the problem. Unfortunately, in the race to secure a position in this evolving security market, much of the literature being thrust at potential customers is heavy in FUD and light in technical detail.

It may be because marketing departments are riding roughshod over the technical folks in order to establish these new companies, but in several of the solutions being proposed I've had concerns over the scope of the security element being offered. It's not because the approaches being marketed aren't useful or won't work, it's more because they've defined the problem they're aiming to solve so narrowly that they've developed what I could only describe as tunnel-vision to the spectrum of threat organizations are likely to face in the BYOD realm.

In the meantime I wanted to offer this quick primer on the evolving security space that has become BYOD geo-locking.

Geo-locking BYOD

The general premise behind the current generation of geo-locking technologies is that each BYOD gadget will connect wirelessly to the corporate network and interface with critical applications. When the device is moved away from the location, those applications and data should no longer be accessible.

There are a number of approaches, but the most popular strategies can be categorized as follows:

1. Thick-client – A full-featured application is downloaded to the BYOD gadget and typically monitors physical location elements using telemetry from GPS or the wireless carrier directly. If the location isn't "approved" the application prevents access to any data stored locally on the device.
2. Thin-client – a small application or driver is installed on the BYOD gadget to interface with the operating system and retrieve location information (e.g. GPS position, wireless carrier information, IP address, etc.). This application then incorporates this location information in to requests to access applications or data stored on remote systems — either through another on-device application or over a Web interface.
3. Share-my-location – Many mobile operating systems include opt-in functionality to "share my location" via their built-in web browser. Embedded within the page request is a short geo-location description.
4. Signal proximity – The downloaded application or driver will only interface with remote systems and data if the wireless channel being connected to by the device is approved. This is typically tied to WiFi and nanocell routers with unique identifiers and has a maximum range limited to the power of the transmitter (e.g. 50-100 meters).

The critical problem with the first three geo-locking techniques can be summed up simply as "any device can be made to lie about its location".

The majority of start-ups have simply assumed that the geo-location information coming from the device is correct — and have not included any means of securing the integrity of that device's location information. A few have even tried to tell customers (and investors) that it's impossible for a device to lie about its GPS location or a location calculated off cell-tower triangulation. I suppose it should not be a surprise though — we've spent two decades trying to educate Web application developers to not trust client-side input validation and yet they still fall for web browser manipulations.

A quick search for "fake location" on the Apple and Android stores will reveal the prevalence and accessibility of GPS fakery. Any other data being reported from the gadget — IP address, network MAC address, cell-tower connectivity, etc. — can similarly be manipulated. In addition to manipulation of the BYOD gadget directly, alternative vectors that make use of private VPNs and local network jump points may be sufficient to bypass thin-client and "share-my-location" geo-locking application approaches.

That doesn't mean that these geo-locking technologies should be considered unicorn pelts, but it does mean that organization's seeking to deploy these technologies need to invest some time in determining the category of threat (and opponent) they're prepared to combat.

If the worst case scenario is of a nurse losing a hospital iPad and that an inept thief may try to access patient records from another part of the city, then many of the geo-locking approaches will work quite well. However, if the scenario is that of a tech-savvy reporter paying the nurse to access the hospital iPad and is prepared in install a few small applications that manipulate the geo-location information in order to remotely access celebrity patient records… well, then you'll need a different class of defense.

Given the rapid evolution of BYOD geo-locking applications and the number of new businesses offering security solutions in this space, my advice is two-fold — determine the worst case scenarios you're trying to protect against, and thoroughly assess the technology prior to investment. Don't be surprised if the marketing claims being made by many of these start-ups are a generation or two ahead of what the product is capable of performing today.

Having already assessed or reviewed the approaches of several start-ups in this particular BYOD security realm, I believe some degree of skepticism and caution is warranted.

Written by Gunter Ollmann, Chief Technology Officer at IOActive

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Following up on my recent post about how solving the Bufferbloat problem could dramatically increase the speed of Internet usage, I recently learned via a Google+ post by Michael Richardson of this video of a presentation by Jesper Dangaard Brouer of Red Hat at the recent DevConf.cz Brno 2013 titled: "Beyond the existences of Bufferbloat – Have we found the cure?” The slides are available for download as is the video that is embedded below.

The presentation is an interesting dive down into the technical weeds of what exactly is causing this bufferbloat problem and how it could be fixed with a combination of factors, most noticeably the CoDel (Controlled Delay) active queue management technique. I found it a useful explanation of many facets of the problem and solution and would encourage folks interested in this topic to give it a look. I'll also note as I did in my earlier post that more info about the bufferbloat problem in general can be found at www.bufferbloat.net.

Written by Dan York, Author and Speaker on Internet technologies

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More under: Access Providers, Internet Protocol

Google has changed the tagline on the homepage of its Palestinian edition from "Palestinian Territories" to "Palestine". The change, introduced on 1 May, means google.ps now displays "Palestine" in Arabic and English under Google's logo.

Google spokesman Nathan Tyler, in a statement given to the BBC on Friday, said: "We're changing the name 'Palestinian Territories' to 'Palestine' across our products. We consult a number of sources and authorities when naming countries." ... "In this case, we are following the lead of the UN, ICANN, ISO and other international organisations."

Read full story: BBC

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More under: Internet Governance, Top-Level Domains, Web

Google has changed the tagline on the homepage of its Palestinian edition from "Palestinian Territories" to "Palestine". The change, introduced on 1 May, means google.ps now displays "Palestine" in Arabic and English under Google's logo.

Google spokesman Nathan Tyler, in a statement given to the BBC on Friday, said: "We're changing the name 'Palestinian Territories' to 'Palestine' across our products. We consult a number of sources and authorities when naming countries." ... "In this case, we are following the lead of the UN, ICANN, ISO and other international organisations."

Read full story: BBC

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More under: Internet Governance, Top-Level Domains, Web

Type www.z10.com into your browser and you'll arrive at an Amazon page on which "Global Mobiles" sells unlocked BlackBerry Z10 phones. What? Did you expect to be directed to a BlackBerry (formerly Research In Motion) site just because the Z10 has been touted as the phone that will help make or break the struggling company? What happened?

A savvy domain speculator realized that his or her domain name had become a hot commodity well after the domain was registered, and it could be monetized in Amazon's affiliate program where commissions could be earned on Z10 sales driven to the popular ecommerce site via Z10.com. According to the Whois, the domain was created over 12 years ago, and was transferred to a registrant in Hong Kong in 2007. The Z10 phone, however, was only introduced to the U.S. market this year.

It's possible that the original owner decided to grab Z10.com because it sounded like a model of something before BlackBerry even conceived of the Z10 phone. Plus, it's well known that ALL two and three character .COMs and probably a good many four character .COMs have been gobbled up by speculators just waiting for some new whatchamacallit to debut on the market. Z10 sounds an awful lot like a car model — and if you type "Z10 car" into a search engine, you'll get hits for BMW's Z10 and Toyota's Z10 Soarer (a model sold in Japan in the '80s).

"This is fairly typical cyber-speculation activity," said Steve Levy, FairWinds' Intellectual Property Attorney. "Creative domain speculators will come up with creative names absent of a known product name. If one of those names is later adopted by a company as a brand, it can create a tough situation since there were no trademark rights at the time the domain was created and Uniform Domain-Name Dispute-Resolution Policy (UDRP) arbitration panels must reject claims when a domain name was not originally registered in bad faith. At that point it's time to explore other options such as an anonymous offer to buy the desired domain — preferably before the new product launches and price goes sky high."

There are some lessons here for companies managing the acquisition of domain names associated with the launch of a new product. Before a new brand is publicly announced, many companies will register the most obvious defensive domains. But if the product name is neither totally distinctive, nor incorporates a protected pre-existing trademark, and a domain name was registered well in advance of any trademark rights, it may be that acquisition is the only path forward apart from selecting another trademark with an available domain.

Written by Josh Bourne, Managing Partner at FairWinds Partners

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More under: Cybersquatting, Domain Names

Could you sign off of the Internet today — right now, in fact — and not come back online for 12 months? If you are a reader of CircleID, odds are pretty good that the answer is probably an emphatic "No!” This is, after all, a site for "Internet Infrastructure" and for most of us visiting the site (or writing here) the "Internet" is completely woven into the fabric of our lives… and we have a hard time thinking of a life without it.

Paul Miller did, though. Paul, a writer at The Verge, signed off on April 30, 2012, and just rejoined the rest of us this week… and being a writer naturally wrote a long piece about it: "I'm still here: back online after a year without the internet”

As he says in the article and the accompanying video, he was thinking of an escape:

I thought the internet might be an unnatural state for us humans, or at least for me. Maybe I was too ADD to handle it, or too impulsive to restrain my usage. I'd used the internet constantly since I was twelve, and as my livelihood since I was fourteen. I'd gone from paperboy, to web designer, to technology writer in under a decade. I didn't know myself apart from a sense of ubiquitous connection and endless information. I wondered what else there was to life. "Real life," perhaps, was waiting for me on the other side of the web browser.

I won't quote much more of the article because I think it's worth a read in its entirety. I did, though, find this an interesting quote:

My plan was to leave the internet and therefore find the "real" Paul and get in touch with the "real" world, but the real Paul and the real world are already inextricably linked to the internet. Not to say that my life wasn't different without the internet, just that it wasn't real life.

and this:

But the internet isn't an individual pursuit, it's something we do with each other. The internet is where people are.

I think of my own life, and the connections that I have, and the connectedness I have with so many people and with so many different facets of my life. Sure, I could go without the Internet for a year… but would I want to?

Written by Dan York, Author and Speaker on Internet technologies

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More under: Web

Tom Wheeler nominated by President Obama as the new chairman of the FCC.After a political and administrative process of more than a month Tom Wheeler has finally been nominated by President Obama as the new chairman of the FCC with the full support of Congress. Unlike other regulators around the world the FCC is directly accountable to the American Congress, making it a far more political body than most other regulators.

I have known Tom since 1983. He is an enormously energetic person and has been involved in the ICT industry for most of his working life, holding very senior positions within the American industry.

Currently he is the managing director at the Washington DC venture capital firm, Core Capital Partners, and before that, from 1979 to 1984, he served as president of the National Cable Television Association (NCTA) and as CEO of mobile carrier trade group CTIA from 1992 to 2004.

During all those years we have remained in touch and this connection was further strengthened when Barack Obama became President in 2008. As long as I have known Tom he has played a very active role in the Democratic Party and on one occasion I was invited to attend one of their events, which was quite an experience.

After the Obama win Tom became part of the Transition Team, overseeing the broad scale of technology, science and media. Before the election I had already discussed with Tom the idea that, if Obama were to win, I would be interested in sharing my views on telecoms with him. He took me up on that and put me in contact with Professor Susan Crawford who became the President's advisor on telecommunications. Together with an elite group of telecoms experts from America and Europe we produced several reports on telecoms infrastructure, structural separation, digital innovation and productivity.

There was also great interest in America in the developments around the Australian NBN and in 2009 I was invited to do a presentation on my views on this at a meeting in the White House. And our reports were used by the people within the FCC who wrote the American National Broadband Plan in 2010. It is interesting to see that many of the suggestions we made appeared in their plan.

The fact that Tom was part of the Transition Team, and the fact that he has shown great interest in different approaches to telecommunications, gives me a positive feeling about his appointment. Obviously an appointment like this is eliciting very strong comment in the USA — there are some who don't like the fact that Tom has such close links with the industry, while others see that as an advantage.

It is obvious that America is America, and that the political situation and the attitude to private and government investments is rather different from those in Europe and Australia. There will not be an NBN along the lines that developed in Australia, not even the tuned down-version of the Coalition.

As an American Tom is also a very strong proponent of reduced government involvement and strong support for commercial investments. While I do not always agree with his views on telecoms issues I have always been able to have very open discussions with him. My views are sometimes slightly more radical than his, but I have learned that the American way of thinking is indeed different and I can understand and respect that.

Tom's involvement in the mobile industry also gave him insight into spectrum issues, currently a hot topic in America. In the past he has challenged the broadcasters to become more active in the digital media and more innovative in using their spectrum for, among other things, mobile TV. So we can expect some fireworks there.

Of course, the really big issue in telecoms in the USA, as elsewhere, is the dominance of the vested interests and, particularly in America, their enormous influence in government policies (plutocracy). It will be interesting to see how Tom will handle these tricky issues. He will need all his diplomatic and negotiation skills to navigate a straightforward course through them.

I would like to take this opportunity to wish Tom wisdom and success in his new role.

Written by Paul Budde, Managing Director of Paul Budde Communication

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More under: Broadband, Policy & Regulation, Telecom

In the run-up to the launch of new gTLDs, ICANN has been negotiating both of its main supplier contracts. The registrar contract (Registrar Accreditation Agreement or RAA) negotiations are now all but complete. A new contract draft has been posted for public comment and it now seems likely that in little over a month, this will become the official new 2013 RAA.

The registry contract (Registry Agreement or RA) negotiations have been going on for much less time and really only picked up in earnest after several registries made outspoken, sometimes angry, comments at the way they felt ICANN was handling the negotiations.

Subsequently, a registry negotiating team was set up to work with ICANN in a similar fashion to the registrars (who have been locked in negotiations with ICANN for getting on to almost 2 years now). For ICANN and new gTLD applicants, time is of the essence as the program obviously cannot launch without proper contracts in place to cover the whole domain name registration, management and distribution chain.

This impacts registries as well of course, as many of them are either applicants themselves, or working for applicants.

On April 29, ICANN's VP for DNS Industry Engagement Cyrus Namazi posted an upbeat report on the negotiations on the ICANN blog. "I am delighted to report that we have now posted a proposed final draft of the New gTLD Registry Agreement," Namazi wrote. "Similar to the proposed 2013 Registrar Accreditation Agreement (RAA) that was posted for public comment on 22 April 2013, the ICANN community is now able to review and comment on this final draft before it is approved and adopted."

Namazi's comments are clearly drafted to get the message across that all is well and that the registries and ICANN left the negotiating room as BFFs. "A new and highly spirited sense of mutual trust has catapulted us into a fresh atmosphere of collaboration," he added. "The spirit of teamwork, productive dialogue and partnership that has underpinned this negotiation process is tremendously heartwarming, as it has allowed us to bring to fruition a robust contractual framework for the New gTLD Program."

Really? In a letter sent to ICANN, senior managers at Verisign, the most powerful registry by market share, are extremely critical of the way ICANN has handled the negotiations and of the end result.

Issues appear to center around a clause which would give the ICANN Board a unilateral right to amend the contract. This has been strongly criticized by both registries and registrars, and Verisign is not happy with what it sees as a tool to allow ICANN to change the rules of engagement for its contracted parties at will.

The letter is a strongly worded as Namazi's post is lovey-dovey. So who is right? The proposed new RA was posted for public comment on April 29 for 42 days. Comments will then be collated and summarised for the ICANN Board, so that it can decide whether to approve the contract or not.

This is a major test for today's ICANN. On the one hand, it needs to show that it can control its supplier chain and provide Internet users with a safe and stable environment. But it also needs to show that it can provide the businesses in the domain industry with such an environment, especially with an expected 1,200 new TLDs coming online in the next few years. And lastly, ICANN needs to show that the bottom-up policy development process that gives it its unique position in the world of Internet governance is sacrosanct. Right now, the registries seem to think that ICANN is ready to throw the model under the bus whenever it suits its own devises.

Written by Stéphane Van Gelder, Chairman, STEPHANE VAN GELDER CONSULTING

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More under: Registry Services, ICANN, Policy & Regulation, Top-Level Domains