The Internet Corporation for Assigned Names and Numbers (ICANN) is a Petri dish for acronyms. The latest one to be introduced into the ICANN lexicon is MOPO which is short for Morality and Public Order. MOPO is one of the four grounds by which a third party can challenge an application for a new generic top-level domain (gTLD). The profile of MOPO recently increased when ICANN's Government Advisory Committee (GAC) provided formal advice to the ICANN Board regarding the current MOPO procedures set forth in ICANN's Draft Applicant Guidebook (DAG) for new gTLD applicants. The resolution of this issue will largely determine whether new gTLD applications will be accepted by ICANN in 2011 as planned or sometime in the far distant future.
In its 4 August 2010 communication to ICANN, the GAC strongly advised the ICANN Board "to replace the proposed approach to addressing objections to new gTLD applications based on 'Morality and Public Order' concerns with an alternative mechanism for addressing concerns related to objectionable strings." Unfortunately, the GAC provided no specific guidance on a proposed mechanism that would both recognize the "relevance of national laws and effectively addresses strings that raise national, cultural, geographic, religious and/or linguistic sensitivities or objections that could result in intractable disputes." Instead the GAC merely recommended that "community-wide discussions be facilitated by ICANN in order to ensure that an effective objection procedure be developed."
Given the complexity of this issue and the GAC's internal operating protocols, it was not unexpected that the GAC advice would lack a specific recommendation. Unfortunately, this problem all too often confronts ICANN: an abundance of problem-identification without proposed solutions that are workable either in whole or in part.
The fundamental problem confronting ICANN is succinctly stated in the following excerpt from the ICANN Staff "Quick Look" Procedure for Morality and Public Order Objections explanatory memo:
It is a fundamental principle of the New gTLD Program that objections to applied-for gTLDs will be heard by independent experts. It would be inconsistent with this principle for ICANN to intervene at an early stage of the dispute resolution procedure and screen out objections that it considers to be manifestly unfounded and/or an abuse of the right to object.
During the new gTLD Policy Development Process (2006-2008), there was clear consensus for objective criteria that would remove uncertainty for prospective applicants. This support likely reflected the lessons learned from the amended and protracted 2004 new gTLD round. There was almost universal agreement between the community and ICANN staff on the need to create a "black box" by which ICANN could accept applications, turn a crank, and out pop new gTLD to be added to the root. Integral to this black box solution was the ability to outsource potential disputes to qualified third parties for resolution.
While this approach works well for trademark disputes, where there is a great depth of international jurisprudence, it breaks down when dealing with complex issues under the proposed penumbra of the Morality and Public Order challenge proceedings. Much like the laws of Newtonian physics break down within a black hole, ICANN's approach for a neat black box solution fails. Much as the ICANN Board may want a third party to take on the burden of MOPO dispute resolution, it must accept the ultimate responsibility that the Internet community has placed in it as a trustee of a global resource.
A Potential Solution
The solution to this problem is neither complex nor will it take years to implement. It is grounded in ICANN's existing bylaws (Article II, Section 1):
Except as otherwise provided in the Articles of Incorporation or these Bylaws, the powers of ICANN shall be exercised by, and its property controlled and its business and affairs conducted by or under the direction of, the Board. With respect to any matters that would fall within the provisions of Article III, Section 6, the Board may act only by a majority vote of all members of the Board. In all other matters, except as otherwise provided in these Bylaws or by law, the Board may act by majority vote of those present at any annual, regular, or special meeting of the Board.
Therefore, the ICANN Board requires eight (of fifteen) affirmative ICANN Director votes to pass a resolution on "any policies ... that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges" (Article III, Section 6)." But this is not the only exception to the majority rule stated in Article II, Section 1. In fact, as part of the 2003 Evolution and Reform Process, ICANN raised the bar even higher.
A policy development recommendation passed by the GNSO Council by a supermajority vote must be approved by the ICANN Board "unless more than sixty-six (66%) percent of the Board determines that such policy is not in the interests of the ICANN community or ICANN." A plain reading of this provision of the bylaws requires ten (10) affirmative votes from ICANN Board directors to reject a supermajority PDP recommendation from the GNSO Council.
Proposed Bylaws Amendments
It is proposed that the ICANN bylaws be amended so that the addition of any new top level domain to the root requires a two-thirds super-majority vote of the ICANN Board. The basis for this approach is simple. One of the most important actions that ICANN takes in its capacity as a trustee of a global resources is when it proposes to add a new gTLD to the Internet root zone. It is goes to the very core of its mission in preserving the security and stability of the Internet. Therefore it is not unreasonable that such an important action require a higher threshold than just a mere majority of directors at any one meeting.
I had the honor and privilege to serve on the ICANN Board. While I did not always agree with my fellow directors on some specific resolutions, I generally had faith in the Board as a whole to do the right thing. A review of over eleven years of ICANN Board resolutions will show that nearly all were approved by a supermajority. This tradition of consensus-based decision-making should do much to assure GAC and the greater Internet community that the ICANN Board will do the right thing on gTLDs.
Standing Morality and Public Order Panel
Even with such bylaw amendments, there would still need to be a "morality and public order" component to the new gTLD process. But instead of requiring parties to pay for an expert panel to make a determination, it is proposed that a standing panel review all applications for potential morality and public order sensitivities. This panel would issue a report after the close of the first public comment period. While the new gTLD public forum would serve as an early warning system to identify "strings that raise national, cultural, geographic, religious and/or linguistic sensitivities or objections that could result in intractable disputes," the standing panel would engage in their own due diligence to identify potential problems.
Following the issuance of this report, any applicant whose proposed gTLD string has been flagged as raising a morality and public order concern would have the right to withdraw their application and receive a refund of 80% of the original application fee. The report would have no binding effect, and the applicant would be free to pursue the application. However, if the applicant decides to pursue the application and withdraw at a later date, they will only be eligible for the standard rebate amount currently set forth in the Applicant Guidebook.
If the ICANN community should have learned any one lesson from the six year saga of ICM Registry's pursuit of an adult themed top-level domain, it is that there is no simple one-size-fits-all black-box solution to approving new TLDs. While the community back in 2006-2008 may have desired such a solution, experience has proven it impossible. Just as ICANN has deviated from the community's recommendations regarding the protection of geographic identifiers, ICANN needs to acknowledge and make such a change in connection with morality and public order considerations.
By applying a supermajority standard for all new gTLDs to be added to the root, ICANN would provide the Internet community the greatest insurance against the prospect of some yet unknown problematic gTLD slipping through the cracks merely because the applicant paid a fee and clicked all the right boxes. While some may push back against the ICANN Board making a subjective determination on the fate of potential new gTLD applicants, the most important thing is that these potential applicants are aware of this risk at the outset so they can plan accordingly. As the trustee of a global resource, the ICANN Board must be guided by fulfilling its primary mission (ensuring access to a secure stable Internet) over narrow interests of gTLD applicants.
By Michael D. Palage, Intellectual Property Attorney and IT Consultant
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