Consideration of Amazon Corporation's Proposal on ACTO Member States Continuing Concerns re: .AMAZON New gTLD Application

Why is the Board addressing the issue?

The Board is taking this action today in accordance with Board resolutions 2019.03.10.01-.07 and in recognition of all input received relating to the .AMAZON applications. The Board recognizes the need to balance concerns of all those involved, and to act fairly and transparently at all times. Indeed, the Board has considered the concerns raised regarding the .AMAZON applications at every stage of their processing through the New gTLD Program.

However, the Board is also cognizant of the time that has lapsed since the .AMAZON applications were submitted in 2012, and since the Amazon corporation prevailed in its Independent Review Process (IRP) against ICANN in July 2017. Since that time, the ICANN Board and org have engaged with the Governmental Advisory Committee (GAC), ACTO, and the Amazon corporation in pursuit of a mutually acceptable solution, as evidenced by the numerous meetings, proposals, and letters received on the topic of the .AMAZON applications over the past few years. The Board believed that its March 2019 resolution allowing a further, short period of time—following over a year of facilitation by the ICANN org President and CEO—before the Board made a final decision about whether to move toward delegation of the .AMAZON applications was appropriate and in line with requests by ACTO member states for additional time. The Board considered that this additional time could lead to a mutually acceptable solution regarding those applications.

As of today, two months from the Board's March 2019 resolution, ACTO and the Amazon corporation have been unable to come to a mutually acceptable solution or agree on an extension of time for continued discussions. In light of this, the Board is now moving forward with the next steps laid out in Board resolution 2019.03.10.05 and is directing ICANN org to continue processing the .AMAZON applications toward delegation.

What is the proposal being considered?

The proposal under consideration is to allow ICANN to continue processing the .AMAZON applications according to the policies and procedures of the New gTLD Program, which includes the publication of the Amazon corporation's proposed Public Interest Commitments (PICs) for public comment. In order to reach this decision, the Board also had to consider if the Amazon corporation's update to those proposed PICs was acceptable to the Board and not inconsistent with any outstanding formal advice received regarding the .AMAZON applications. In April 2019, in response to Board resolution 2019.03.10.01-.07, the Amazon corporation submitted its modified proposal for PICs.1 This proposal follows other proposals submitted by the Amazon corporation in the past several years, including proposals from October 2015, October 2017, February 2018, and November 2018.2

The April 2019 proposal included, in addition to the creation of a joint Steering Committee, the following commitments:

"Not use as domain names in each .AMAZON TLD those terms that have a primary and well-recognized significance to the culture and heritage of the Amazonia region;
Provide nine domain names in each .AMAZON TLD to be used for non-commercial purposes by ACTO and its member states to enhance the visibility of the region; and
Block from all use up to 1500 domain names in each .AMAZON TLD that have a primary and well recognized significance to the culture and heritage of the Amazonia region"
The Amazon corporation also notes in its proposal that its TLDs would be "highly-restricted .BRANDs" and that "Amazon would only register domain names that align with its global brand strategy so that the .AMAZON TLDs are strongly affiliated with the reputation of the Amazon brand, which should eliminate concerns of ACTO and its member states that third parties will abusively use the TLDs."

Finally, the Amazon corporation stated that it would host the nine domain names noted above and would make use of "proactive security controls paired with reactive and detective controls [to offer] the most comprehensive approach to security" related to the "provisioning and configuration of .AMAZON domains."

What concerns or issues were raised?

The ACTO member states' concerns regarding the use of the .AMAZON applications center on the ability for countries and individuals in the Amazon region to use the domain names for public interest purposes. In October 2017, following the IRP Panel Final Declaration regarding the .AMAZON applications, the ACTO member states issued a statement, reaffirming:

"…that the name Amazon, in any language, is part of the cultural heritage and identity of the Amazon countries, and that its use as a first level domain name, unless otherwise agreed by the Amazon countries, shall be reserved for the promotion of the interests and rights of the Amazon peoples and their inclusion in the information society."
On 5 September 2018, after the Amazon corporation submitted an updated proposal in February 2018 and after the ACTO member states had submitted clarification questions to the Amazon corporation on the proposal, the ACTO member states sent a letter to the Board stating that, with regard to the delegation of .AMAZON, that such delegation "requires consent of the Amazon countries" and that the ACTO member states "have the right to participate in the governance of the '.amazon' TLD".3 Additionally, the ACTO member states declared that "the [February 2018] proposal does not constitute an adequate basis to safeguard their immanent rights relating to the delegation of the '.amazon' TLD." The member states did mention, however, that they were willing "to engage with the ICANN Board…with a view to safeguarding their rights as sovereign states."

On 12 October 2018, the Ministry of Foreign Affairs of Colombia sent a letter to ICANN noting concerns with the Amazon corporation proposal and reiterated the position of the ACTO member states, as noted above.

On 25 October 2018, the Board took a resolution in which it directed the ICANN org President and CEO, or his designee(s), to remove the "Will Not Proceed" status and move forward with processing of the .AMAZON applications. Following this resolution, ACTO sent a letter to the Board on 5 November 2018, explaining that "the positions held by the Amazon countries appear to have been erroneously interpreted" and submitted Reconsideration Request 18-10, calling for "annulment of the 25 October 2018 resolution."4 In the letter, ACTO also called for "a process mediated by the ICANN President and CEO…to discuss a mutually acceptable solution." ACTO also invited ICANN's President and CEO to attend a meeting in Bolivia on 29 November 2018, which was subsequently postponed.

On 21 December 2018, after the Board Accountability Mechanisms Committee (BAMC) carefully considered the merits of Request 18-10 and all relevant materials and recommended that Request 18-10 be denied because the Board adopted the Resolution based on accurate and complete information and because the Board's adoption of the Resolution was consistent with ICANN's commitments and core values.

On 16 January 2019, the Board considered the BAMC's recommendation to deny Reconsideration Request 18-10 and accepted the recommendation. The Board also stated in its resolution 2019.01.16.03 that resolution 2018.10.25.18 "was taken with the clear intention to grant the President and CEO the authority to progress the facilitation process between the ACTO member states and the Amazon corporation with the goal of helping the involved parties reach a mutually agreed solution, but in the event they are unable to do so, the Board will make a decision at ICANN 64 on the next steps regarding the potential delegation of .AMAZON and related top-level domains."5 The Board's decision to continue processing the .AMAZON applications remained in force.

Subsequent to resolution 2019.01.16.03, ACTO and the ICANN org President and CEO continued a dialogue in an effort to facilitate further discussions on the .AMAZON applications. On 28 February 2019, ACTO requested that the Board not take a final decision on the .AMAZON applications at ICANN 64 in Kobe, Japan and welcomed the President and CEO's willingness to engage in discussions, preferably before 9 March 2019, but ACTO did not suggest a time for such discussions.

Additionally, in a letter from 5 March 2019, the Government of Ecuador reiterated ACTO's concerns and what the "sharing of governance of the .Amazon TLDs" means for ACTO, including:

"(1) provision is to be made to allow the control by the company Amazon Inc. of second-level domains that are relevant to its commercial interests (for instance, books.amazon, kindle.amazon, etc); (2) each Amazon country reserves for their use those domains that are relevant to its sovereignty and cultural heritage (for instance, those with geographical names, historical resonance, political implications etc); (3) a governance committee would be established where the eight Amazon countries would be given an opportunity to object to names encroaching on their sovereignty and culture while the company Amazon Inc would be able to expand its list of second-level domains in its fields of activity."6
Then, on 23 April 2019, following the Board's resolution of 10 March 2019 and in response to the Amazon corporation's modified proposal of 17 April 2019 (as detailed above), ACTO sent its own proposal for PIC language and noted several concerns with the Amazon corporation proposal. Specifically, ACTO stated that "the [Amazon] company's proposal of April 17 cannot be said to accommodate the principles of shared responsibility and shared governance called for by ACTO members."7 ACTO states that the Steering Committee would only be able to make suggestions and would not be subject to the obligations of the PIC. Further, ACTO held concerns with an "overly restrictive definition of the concept of 'Culture and heritage specific to the Amazon region', which would not even include the names of cities, towns, villages, rivers, culinary dishes, typical ingredients, animals and plants, touristic attractions, and travel-related services, among others."

Also in its 23 April 2019 letter, ACTO provided responses to questions raised by the Amazon corporation regarding international trade law and perceived technical difficulties related to the ACTO member states' proposal.8 Finally, ACTO also noted that the AGB provided the ability for the GAC to oppose the .AMAZON applications and that "[t]o ignore [the AGB rules] would disregard the multi-stakeholder model of governance on which ICANN is based and, additionally, its own Bylaws, which expressly recognize 'that governments and public authorities are responsible for public policy.'"9

Finally, on 7 May 2019, the Brazilian Government wrote to the Board to reiterate ACTO's stance on the .AMAZON applications and also stated that "some misunderstandings about the Amazon countries' proposed solutions may have been conveyed to the ICANN Board" and that these need to be corrected.10 Specifically, the Brazilian Government provided clarification on the role of the Steering Committee, which "should only have responsibilities over a limited number of issues" and "should allow equal representation of both sides"; the goal of "shared-used", which is "to safeguard the natural and cultural heritage of the Amazon region and its peoples"; and, the "protected terms", which "should only be broadened as to include names that can mislead or cause confusion in the public."

Which stakeholders were consulted?

Following the IRP Panel's Final Declaration in July 201711, in which the IRP panel recommended that the Board "promptly re-evaluate Amazon's applications" and "make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's applications," the Board asked the GAC in October 2017 for additional information as it relates to the merits-based public policy reason regarding the GAC's advice that the Amazon Applications should not proceed.12

In its November 2017 Abu Dhabi Communiqué, the GAC advised the Board to "[c]ontinue facilitating negotiations between the Amazon Cooperation Treaty Organization's (ACTO) member states and the Amazon corporation with a view to reaching a mutually acceptable solution to allow for the use of .amazon as a top level domain name."

Subsequently, acting on the GAC advice in the Abu Dhabi Communiqué, the ICANN Board stated in its Abu Dhabi GAC Advice Scorecard that it "asked the ICANN org President and CEO to facilitate negotiations between the Amazon Cooperation Treaty Organization's (ACTO) member states and the Amazon corporation."13

Shortly thereafter, on 15 March 2018, with its Puerto Rico Communiqué, and in response to the Board's inquiry following the IRP, the GAC noted that it "does not have any additional information to provide to the Board on this matter, beyond referring to the GAC Abu Dhabi Communiqué" wherein it advised the Board to continue facilitating additional negotiations.

What factors did the Board find to be significant?

In reviewing the proposal from the Amazon corporation, the Board considered whether it had done its due diligence and had the relevant material to make a decision regarding the proposal, whether the Board's actions followed established processes and were in accordance with ICANN Bylaws, and whether the actions taken by the Board are within ICANN's mission. The Board also considered issues of fairness and whether the parties had been given sufficient time to reach a reasonable solution.

Ultimately, the Board determined that it has done its due diligence based on its review of the .AMAZON applications and the concerns raised throughout every stage of the life of the applications.14 Specifically, the Board took into account how the .AMAZON applications fit into the broader New gTLD Program. The Amazon corporation applied for the .AMAZON applications in 2012, pursuant to the Applicant Guidebook (AGB). The Applicant Guidebook, which either in part or in whole was subject to over 50 comment periods within ICANN, was also developed over three years of intensive community discussion. The GAC raised over 80 discrete issues which were addressed in an intensive face-to-face consultation, and issues such as protections for geographic names, as well as the abilities for individual governments to flag concerns and for the GAC to provide advice to the Board on applications, were added to the AGB. ICANN committed to funding objections raised by governments, if needed.

The .AMAZON applications were first evaluated pursuant to the AGB and determined not to be geographic names set aside for protections or requiring governmental approval. As discussed above, there were "Early Warnings" submitted by individual governments against the .AMAZON applications, and there was an additional challenge raised, a Community Objection brought by the Independent Objector, Alain Pellet. The Independent Objector raised issues it saw as of concern to the inhabitants of the Amazonian region, including human rights related concern. Following the AGB process, an independent expert panelist considered the Independent Objector's arguments, and ultimately dismissed the objection based on a detailed decision issued in January 2014 wherein the human rights and other arguments were considered. Both the Independent Objector and the expert panelist are noted for their scholarship in this area.

The GAC, in its July 2013 Durban Communiqué, advised the Board on a consensus basis that the .AMAZON applications should not proceed. The Board followed that advice and, ultimately, the IRP discussed at length above was filed. Based on the IRP Final Declaration, the Board, as detailed above, re-engaged with the GAC and sought additional advice and clarification. The resulting GAC advice from Abu Dhabi is now the operable GAC advice on this issue, wherein the GAC advised the Board to "[c]ontinue facilitating negotiations between the Amazon Cooperation Treaty Organization's (ACTO) member states and the Amazon corporation with a view to reaching a mutually acceptable solution to allow for the use of .amazon as a top level domain name." The Board accepted that advice and has been acting in accordance with the advice in every subsequent decision on the .AMAZON applications—from the October 2018 decision to allow the .AMAZON applications to proceed through the AGB process, through the January 2019 decision on ACTO's Reconsideration Request, and in the March 2019 decision to allow another four weeks of discussions between the parties in addition to the year of facilitation that has passed since the Board's acceptance of the Abu Dhabi advice.

The Board has therefore met the GAC advice from Abu Dhabi, in that the ICANN org President and CEO facilitated discussions between the two parties for over a year. Likewise, the Board has received sufficient input and had the necessary materials to make this decision, as listed below.15 Even when the Board received a letter from Drs. van Ho and Doyle of the Schools of Law at the Universities of Essex and Middlesex, respectively, setting out potential additional human rights concerns in moving forward with the .AMAZON applications, the Board considered this new input in light of the required AGB process and the substantial human rights-related briefings raised earlier in the application evaluation process, and identified that there were no new issues raised that hadn't already been considered across the long and intensive path that the .AMAZON applications have followed.

Additionally, in terms of fairness and ICANN's obligations to treat applicants equally, the Board believes that the activity spanning the past seven years, during which the .AMAZON applications have followed the course of the AGB and have been the subject of other ICANN processes, supports the decision to allow the applications to continue to proceed. Further, seven years is sufficient time for the parties to reach a reasonable resolution, and in the interest of continued fairness of all parties, it is now time to move forward. If the .AMAZON applications are able to complete the AGB processes and move forward into delegation, the Board expects that ICANN Contractual Compliance will – as with any other registry agreement – diligently monitor the Amazon corporation's compliance with the terms of their registry agreements, including the PICs that are essential to today's decision.

Finally, the Board determined that this action is in support of ICANN's mission, in that it furthers the New gTLD Program and anticipated expansion of the DNS. The action is also in the public interest in its balancing of core values of introducing and promoting competition while recognizing governments' provision of public policy advice.

What materials did the Board review?

In taking this action, the Board considered:

The Applicant Guidebook for the New gTLD Program;
Background information on the applications and processing provided by ICANN org (Reference Materials Attachments A and B);
The GAC Early Warning regarding the .AMAZON applications of 20 November 2012;
The GAC Advice from the GAC Durban and Abu Dhabi Communiqués regarding the .AMAZON applications;
The IRP Panel Declaration in .AMAZON Independent Review Process;
The NGPC's 14 May 2014 action on the .AMAZON applications and the Board's 29 October 2017 and 4 February 2018 actions on the .AMAZON applications;
The Amazon corporation's previous proposals of October 2015, October 2017, February 2018, and November 2018;
The Amazon corporation modified proposed Public Interest Commitments (PICs) of 17 April 2019;
ACTO proposed Public Interest Commitments (PICs) of 18 April 2019;
ACTO letters of 11 April, 18 April, 23 April, and 7 May 2019;
Amazon corporation letters of 9 April, 17 April, 19 April and 23 April 2019;
Drs. van Ho and Doyle, Schools of Law at the Universities of Essex and Middlesex, respectively, letter of 22 April 2019;
ACTO press release of 29 April 2019; and
CGI.br press release of 30 April 2019.
Are there any fiscal or community impacts?

This action is anticipated to have a small resource impact on ICANN org based upon the resources needed to meet the Board's direction.

Are there any security, stability or resiliency issues relating to the DNS?

This action will not impact the security, stability and resiliency of the domain name system.

Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?

This is an Organizational Administrative Function that does not require public comment except as otherwise stated above.