ICANN 46: EuroDNS legal eagle publishes Beijing précis
From April 6 to 11, 2013 the ICANN community held its quarterly meeting in Beijing, China. Our legal eagle, Luc, was amongst the 2500 participants who attended this meeting; on his return he summarised the highlights of the event...
New gTLDs’ launch may not be postponed (but...)
As reported in previous articles, following the request from law enforcement agencies from various countries to strengthen the terms under which entities are allowed to act as registrars, ICANN and the Registrar Stakeholder Group (RrSG) have been negotiating a thorough revision of the Registrar Accreditation Agreement (RAA) terms.
While most of the police requests are reasonable and could be integrated into the RAA, two of them remain deeply problematic as they contravene numerous national laws on data privacy.
Data Privacy rights acknowledged in China
After 18 arduous months of discussion, ICANN has finally recognised the importance of data privacy rights. It's currently working on a mechanism which should allow registrars, such as EuroDNS which is established in a country where privacy is protected by law, to be exempt from the strengthened/illicit personal data retention and divulgation obligations the new version of the RAA would incorporate.
Additionally and presumably stemming from an overzealous quest for efficiency, ICANN also attempted to include a unilateral ‘right of amendment’ of the RAA for its sole benefit. Thus allowing it to override its bottom-up model and to modify the agreement without seeking the consensus of the stakeholders. This is clearly adverse to ICANN’s expected standards of behaviour where its website clearly states that it will, “listen to the views of all stakeholders when considering policy issues,” with a, “consensus driven approach to policy development.”
However, facing the outcry of the community and realising that such a prerogative would be incompatible with its own standards, ICANN has drastically reworked this provision to ensure that all stakeholders be consulted beforehand and that this amendment right may only be used for, “Substantial and Compelling Reasons Related to the Public Interest”.
Thanks to this acknowledgement, an ‘agreement in principle’ was reached between ICANN and the registrars during the Beijing meeting.
Although only in principle at this time, we still await the new wording for the RAA from ICANN. Provision of the amended agreement has now become vital for the whole new gTLD programme to proceed; ICANN discretionarily decided last February that only registrars that have executed this, yet to be released agreement, would be allowed to offer domain name registrations under the new extensions.
This decision to limit registries distribution channel to registrars bound by the new RAA agreement, was quietly announced in ICANN’s recent publication of an amended version of the Registry Agreement. This latest version contains substantial modifications amongst which, the granting to ICANN of a unilateral amendment right of the Registry Agreement.
As for the RAA, ICANN is expected to rework this provision into a procedure that abides by the principles on which ICANN was built and functions.
ICANN’s CEO announced that a new version of both the RAA and RA would be published before the end of this week.
As per ICANN’s multi-stakeholder model that develops policy through a "bottom-up, consensus-driven process", these documents will be put up for public comment for a 42 day period. Thus delaying their approval by the ICANN Board and therefore their coming into force; originally planned for the 20th of April.
Although this latest delay is unwelcomed by a great part of the community, it is of the utmost importance that these agreements, which are the cornerstone of the domain name industry, are not hastily finalised to the detriment of the registrants’ rights.
Expected consequences of the new RAA language
According to the latest version of the RAA published by ICANN and the presentation made in Beijing of the modifications to be included in the agreement, soon to be released; we trust that EuroDNS’ processes may, for the most part, already be in compliance with the new contractual obligations and that this shouldn’t put too strong a burden on EuroDNS’ customers.
EuroDNS will, as always, seek to implement these contractual obligations in its operational processes in a manner most convenient for its customers.
Nevertheless, it's already certain that due to the law enforcement agencies’ requests for enhanced verification of registrant’s details, the number of email validations sent by EuroDNS will greatly increase. Once these operational changes have been implemented, EuroDNS will publish an article detailing each of them and will update its help centre accordingly.
ICANN contractual compliance update
During this session lead by ICANN head of contractual compliance services Maguy Serad, the audience was informed that the complaint system which allows Internet users to file formal grievance against registrars and registries that assertedly violate their agreement with ICANN and/or report WHOIS inaccuracies, is currently being merged into a unified and more efficient system accessible at http://www.icann.org/en/resources/compliance/complaints.
Regrettably, this critical unbalance is an open invitation for abuse by ill-intentioned parties.
In light of the above, the announcement that ICANN would reopen the bulk WHOIS inaccuracy report system - which allows Internet users to submit an unlimited number of complaints at once – within the next two months, adds to the urgency for an immediate implementation of safeguards by the ICANN compliance department.
During this meeting, ICANN’s Governmental Advisory Committee issued a communiqué in which it announced that it had reached full consensus to reject two applications based on their lack of community involvement and support (.africa and .gcc).
No support, no gTLD
On top of those two rejections the GAC is also requesting a delay so as to thoroughly analyse 14 other strings which may call for further consideration.
While the aforementioned advice was expected and in line with the GAC role in the framework of the new gTLD programme, the government representatives also established a list of broad safeguards that they would like to see implemented into all new gTLDs terms of registration.
Advice is cheap
Although these safeguards were divided into six bullet points, they may be summarised into two categories.
The first one is the GAC advice for an improvement of the accuracy of WHOIS details, which as explained above, should already be accomplished by the provisions contained in the new RAA.
The second category pertains to the monitoring of domain names used by the registries. Presumably influenced by the example set by ccTLD registries such as Switzerland’s, who drastically reduced illicit activities under their TLDs by actively monitoring registrations for abuse; the GAC is requesting that registries for new gTLDs be contractually compelled to do the same.
The honourable judge gTLD registry
Albeit this second category of advice seems reasonable and even desirable, the wording in the communiqué appears rather too broad as it also includes the monitoring of activities that clearly falls under the jurisdiction of law courts and not under private players.
Should the ICANN Board follow this advice, it would impose impossible regulations on registries such as determining between two or more parties which one has a prior right to a given domain name, judging the deceptive nature of a domain name use, etc.
And contrary to law courts that are not accountable for their decisions, registries would be, thus putting them at great risk.
Fortunately, the Chair of the ICANN Board, Steve Crocker intimated in the usual post ICANN interview, that the Board while preferring to always follow the GAC’s advice could also overrule them.
In addition to this advice, applicable to all new gTLDs, the GAC communiqué also provides a list of advice for a non-exhaustive list of strings the GAC considers linked to regulated and professional sectors. Although the national and international regulatory bodies to reach out to and the standards to abide by for some of the strings will be easily identifiable (such as .BANK, .PHARMACY, or .CASINO, etc.) others may prove more difficult (.EARTH, .ECO, .WTF. etc.).
Closed in the public interest
Lastly, the GAC issued advice on the ‘closed generics’, applications for generic strings - terms on which no one may claim an exclusive right – to be operated in a closed manner and for the sole benefit of one entity (.BLOG, .CLOUD, .DOCS, etc.).
The government’s representatives advise that such (ab)use of the new gTLD program may only be allowed if the relevant applicants establish that the closed operation of a generic term serves the public interest.
As per the letter from September 2012 signed by EuroDNS and alerting the ICANN Board of the threat this practice would constitute to consumer choice, EuroDNS strongly supports this GAC advice.
During this session lead by Karen Lentz, ICANN Operations and Policy research Director, Deloitte and IBM, the companies contracted by ICANN to provide the Trademark Clearinghouse (TMCH) services, explained that while the recording of trademarks was already open to trademark holders, several functions required for the launch of the new extensions were not yet implemented as they need to be more specifically defined by ICANN.
Although these functions are not required at this stage, Deloitte and IBM assured the audience that they would be ready before the launch of the new gTLDs.
As announced, eBrand Services, EuroDNS’ corporate arm has become one of the first TMCH agents to be accredited to record trademarks and is already providing this service to several IP professionals and its corporate customers via its TMCH-Genius innovative platform.
However, and despite eBrand Services efforts to simplify the use of this service, the inner complexity of the trademark registration system makes it difficult to use for the 'occasional' trademark holder. Fully aware of this problem, EuroDNS is currently working on the implementation of a highly simplified version of the TMCH service on its platform; this version will allow customers who hold a trademark to record it for Sunrise registration with just a few clicks.