Arabic TLD First To Go Live; Who Does What In Multi-Stakeholder Internet Self-Governance

شبكة , the Arabic word for “web” or “network”, the Russian words for “online” and “network” and and the Chinese word for “game” is one of the first new top-level domains ready to go live after the Internet Corporation for Assigned Names and Numbers (ICANN) signed four contracts during its opening session in Durban, South Africa (14-18 July). Despite what might be seen as emblematic of a “greater” ICANN, discussions in Durban this week continue on discrepancies between local law and ICANN contracts. They also continue on the very functioning of the private multi-stakeholder model for self-regulating the name space itself.

In an effort to internationalise, ICANN announced yet another engagement center at Geneva, to support cooperation with international organisations like the UN International Telecommunication Union. ICANN just before the start of the meeting announced that 1,092 new TLDs have passed the initial evaluation process – a check on technical, financial and operational capability of the applicants for new domain name zones, from 天主教 (the Vatican’s application for Catholic in Chinese) to .office (from US software giant Microsoft).

ICANN Contracts, Data Protection

Applicants not in contention or objected to, according to various intervention processes, can proceed to contracting with ICANN, the organisation wrote on 3 July.

The standard contacts for the new registry operators (who run the central database for the new name zones) and the registrars (who sell the domains to users) were completed just in time for Durban as a pre-requisite to get the process moving.

Yet Registry Agreements (RA) and Registrar Accreditation Agreements (RAA), heavily debated for months or even years, both still contain issues that could cause problems for companies according to their respective local laws. Data protection was mentioned prominently at meetings of the ICANN Governmental Advisory Committee (GAC) on Saturday.

Hubert Schöttner, from the German Ministry of Economics, warned that registrars could be trapped between ICANN contractual obligations and local law. “As government we need to balance the interests of law enforcement and privacy and data protection,” he said.

Local Law Exemptions

ICANN has included an exemption clause for registrars from broad data retention obligations. But a recent letter from Europe’s Article 29 Group of Data Protection Officers, according to ICANN Vice President Cyrus Namazi might not suffice for ICANN to grant the exemption. “They are an authority, but not a legal authority at this moment,” Namazi explained.

Registrars from countries with strict data protection laws can be exempted from contractual obligations where the present legal proof is from national authorities or national law firms. Most EU registrars will not sign before they have an exemption in place, Irish Registrar Michele Neylon, chair of the Registrar Stakeholder Group, told Intellectual Property Watch.

A similar problem exists for the RA. Thomas de Haan of the Ministry of Economic Affairs in the Netherlands said .amsterdam would “not be able to sign the registry contract because it’s in violation of data protection legislation” and the problem arose for many of the new registries.

Trademark Protection Trumps Names of Local Bodies

Besides data protection, provisions to protect trademark owners also cause problems for the geographical TLDs, Dirk Krischenowski, CEO of dot.berlin and one of the initiators of a new ICANN constituency for geo-TLDs, explained Saturday.

Under ICANN’s existing proposal, protection of names through procedures overseen by a newly established Trademark Clearing House must come first.

“That would mean that metro.paris would go to a big company. And police.paris would go to the very well-known band the Police. Both names would be gone before local government phase would start.”

The representative of dot.africa, pointing to ongoing work to compile lists of African public institutions interested in registering under the new .africa, said: “We cannot go ahead and invest all our time and resources on developing these lists only to find out in the next few months that the sunrise process, the trademark clearing house process trumps them.”

Protection of IGO Names and Additional Safeguards

Another ongoing discussion about preferential treatment in the name space is still underway with regard to the protection of the names and acronyms of international organisations.

According to one proposal discussed between IGOs, governments and ICANN, IGOs could “being effectively granting permission or having the opportunity to not grant permission to another body of at least equivalent standing,” said Chris Disspain, member of the New GTLD Board Committee.

IGOs could in effect be made judge and jury over the use of acronyms like “who” (World Health Organization). A representative of the World Intellectual Property Organization said in Durban that the IGOs agree that there is a need for an independent third party review of the requests. But IGOs want to be involved in determining “whether any registration of an IGO protected acronym poses any problems,” the WIPO representative said.

In a session between the new TLD program committee and the Board, Disspain also challenged governments with regard to their “advice” to oblige registry operators to have additional safeguards, for example the inclusion of acceptable use policies, for a long list of new TLDs governments classified as “linked to regulated or professional sectors.”
TLDs listed by governments as sensitive in their official communiqué from ICANN 46 in Beijing. include not only related to finance, health or public authority, but also the terms toys (juegos), book, digital or sucks.

According to Disspain, for some of the terms it is “blindingly obvious“ that they should be “limited to a certain set of registrants,” and for some safeguards could be discussed. But there are a number of strings the committee had no idea about why they would be in the list. Some strings listed referred to industries that might be regulated in only a few jurisdictions and, Disspain said bluntly, some of the safeguards the governments pushed to have were just “unimplementable”.

Who Has What Role in Multi-Stakeholder Governance?

Given the additional burdens governments put on the self-regulators late in the process, the role of governments in the ICANN policy development process is once more a controversial topic in Durban.

“We have to accept there are two parallel tracks,” Canadian GAC Chair Heather Drydon said during the debate on the protection of international organisations. While governments have pushed for IGO protection, the regular policy developing process (PDP) is developing in the Generic Name Supporting Organisation (GNSO), which brings together all other stakeholders. The GNSO is anxious to prevent the PDP from being circumvented, not by governments and not by the ICANN Board.

“Early engagement would be the answer for governments,” said Wolfgang Kleinwächter, professor at the University of Aarhus and an ICANN expert.

For years, GAC members said participation in the working groups that develop policies in the GNSO would not fit governments’ way of operating. “We dance a little bit around who is responsible to do what,” said Erika Mann, Facebook’s director of public policy in Brussels and a member of the ICANN Board, speaking in the discussions about the controversial additional safeguards.

To be practical, a small ad hoc working group should be built to clarify the classifications so as to allow the new TLD process to further move ahead, proposed Mann.

Policy Process Scrutinised

The functioning of the PDP and the role of governments therein also is being scrutinised by the so-called Accountability and Transparency Review (ATR), a regular effort ICANN is obliged to conduct under its Affirmation of Commitments with the US government.

Lawrence Strickling, head of the US National Telecommunication and Information Administration and member of the ATR Team, presented governments gathered in Durban with complaints from the community that the GAC itself might be too closed and lacked codes of conduct for itself.

ICANN President and CEO Fadi Chehade, meanwhile, never tires of defending the ICANN model and the PDP. “The PDP is not broken, it works marvelously,” said Chehade, pointing to the cross-stakeholder, cross-border consensus-building principle.

Nevertheless, Chehade announced several new panels that he expects will further clarify ICANN’s practices with regard to: the public responsibility framework (chaired by African internet pioneer Nii Quaynor); identifier technology issues (chaired by DNS lead developer Paul Mockatris); the multi-stakeholder model (chaired by US professor Beth Simone Noveck, former US chief technology officer for open government); and ICANN’s role in the family of international organisations from ITU to the Internet Society (led by internet “father” Vinton Cerf).