Group faults US proposal on gTLDs

The Non-Commercial Stakeholder Group (NCSG) has described the United States Government proposal (USG-proposal) regarding the scorecard on the new Generic Top Level Domains (GTLDs) as alarming.

NCSG is one of the four Stakeholder Groups established within the Internet Corporation for Assigned Names and Numbers (ICANN’s) Generic Names Supporting Organization (GNSO) framework.

The group in a position paper made available to ITRealms Online at the weekend, said that USG proposal if adopted would threaten the fundamental human right of freedom of expression.

NCSG believes the USG proposal would be setting a dangerous precedent for governmental dominance in the multi-stakeholder arena of Internet governance.

The group alleged that the USG proposal was presented in the form of a proposal to be adopted by the full Government Advisory Committee (GAC); hence NCSG response outlines the flaws inherent in the proposal and presents reasons why it should not be adopted.

NCSG listed three key areas of interest in its response including the objection procedures, vertical integration, and Intellectual Property Protection as contained in the USG proposal.

The public comment quoted NCSG as saying that specifically, the USG Proposal ignored and completely overturned both the process and result of carefully-negotiated community consensus that led to the latest version of ICANN’s Draft Applicant Guidebook (AGB) for new generic top-level domains (gTLDs).

They alleged that it’s a clear attempt to wrest control over the assignment of new gTLDs away from ICANN and vest it in the hands of individual governments.

“We wish to emphasize that an appeal to the ‘universal resolvability of DNS cannot possibly justify giving any individual government the power to prevent the creation of a TLD ‘for any reason,’” part of the comment read.

The group also noted that one does not advance the cause of a globally interconnected internet by encouraging any individual government to exercise a global authority to prevent the creation of top level domain applications.

“The only effect of such a policy would be to multiply one country’s controls and regulations to all countries. There are in fact no technical harms to the Internet as a whole caused by the blocking
of a single TLD by one or a few countries,” it further stated.

Although the NCSG has raised issues with ICANN’s accountability and transparency practices in the past, it stated that ICANN’s model is based on multi-stakeholder participation involving not just governments, but also industry participants and individual Internet users.

“In this model, and as enacted in ICANN’s Bylaws, individual national governments – through the GAC – may be influential participants and are entitled to offer advice to the ICANN Board on Internet domain name policy, but do not override the voices of businesses large and small, non-profit organizations and individual consumers,” the group stated, insisting that the community-based model of bottom-up consensus decision-making in use currently is the most appropriate framework for Internet domain name management and governance.

In light of the fact that the Internet is a global network whose evolution, maintenance and growth has depended, and continues to depend, on the participation of each of the stakeholders who are represented in the ICANN model,” NCSG maintained.

Underlining the reasons of NCSG for rejecting the USG Proposal, the group said faulted the recommendation by USG for eliminating the current Limited Public Interest objection procedure entirely, and adding to the Initial Evaluation phase for a proposed new gTLD the ability for “any GAC member” to object “for any reason” (which objection must result in a denial of that gTLD application by ICANN if no other GAC member opposes the GAC’s support of that objection).

In addition to the general reasons aforementioned, NCSG said, this particular proposal is troubling because “It ignores the recommendations made recently by a cross-community working group (“CWG”) that carefully considered and proposed refinements to the Limited Public Interest Objection procedure.

“The CWG, which included several participants from GAC member countries in their individual capacities, made recommendations to modify the AGB-prescribed procedure that were responsive to GAC’s concerns. The CWG recommendations are still under consideration by the ICANN Board and have been publicly available for some time. It would have been far more helpful – and a welcome acknowledgment of the role of each stakeholder (including governments) in ICANN decision-making – if the USG Proposal had addressed the CWG’s concerns and recommendations so as to arrive at an improved objections process rather than simply reject it when it has been subject to community comment and suggestions.

Equally, it recommended that Initial Evaluation process be amended to allow the GAC to decide whether or not a particular gTLD passes muster subverts the basis upon which ICANN functions, renders an applicant vulnerable to internal GAC politics and lobbying, and arrogates only to the GAC the right to decide what is in the “global public interest”.

NCSG noted that a better, more balanced and less high-handed way to address the apparent concern that strings here is ultimately to be rejected through the Limited Public Interest objection process which deals with much earlier in the process would have been a recommendation to amend, improve and/or speed up either the objection process or the related “Quick Look” procedure.

Though NCSG seem to agree that the blocking of numerous strings by individual governments is not a desirable outcome, they noted that the USG Proposal does not provide ICANN any leeway or discretion at all, as the outcome depends entirely on whether the GAC fails to oppose – a different concept from whether the GAC actually supports - an objection raised by a single GAC member.

NCSG stated that its reasons for rejecting USG proposal number 3 on liberalized cross-ownership rules completely ignores two of the three expert reports commissioned as well as the extensive analysis and discussion carried out in the Vertical Integration Working Group.

In particular, the group said, the ICANN policy roughly corresponds to that recommended by the Salop and Wright report and by several sizable groups within the Vertical Integration Working Group.

Lamenting that when the USG asserts that ICANN had no reason for changing its position between March and November 2010, it ignored the fact that an entire working group process had been conducted, with extensive development of alternative proposals by experts in the industry and among ICANN stakeholder groups.

“The USG analysis is flawed in a more fundamental manner: it seems to not understand that a new TLD which is the only group, to which the new regulations would apply, cannot possibly have “market power” because it has no market share and no individual or organization is required to register within a new TLD.

"The USG also ignores the extensive evidence demonstrating that current separation requirements act as a barrier to entry and obstacle to the success of many small prospective TLDs,” part of the NCSG comment read.

Finally, the group noted that the USG Proposal in relation to intellectual property protection would resuscitate proposals previously rejected by the community-wide consensus through the Special Trademark Interests review team formed by the GNSO at the ICANN Board’s request, and introduce mechanisms rejected even earlier, by the Implementation Recommendations Team that was formed by the Intellectual Property Constituency at the ICANN Board’s request.

“We note, further, that the ICANN Board has done considered the various mechanisms put forward for addressing trademark issues in new gTLDs; Put forward the possibility that additional or emerging issues in this regard be further addressed through policy development by the GNSO; and indicated that in its view trademark issues have been sufficiently addressed by a sufficiently consultative and inclusive community-wide consensus process,” the group insisted.

Remmy Nweke
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