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MOPO - The Latest Speed Bump on ICANN's New gTLD Superhighway

Michael D. Palage

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.

GAC Communication

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 Problem

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.

Conclusion

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

Related topics: Domain Names, ICANN, Internet Governance, Policy & Regulation, Top-Level Domains

 
   
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Comments

MOPO is a train wreck John Levine  –  Sep 11, 2010 9:15 PM PDT

The .XXX fiasco reminded us, among other things, that even when ICANN nominally has a process, they'll ignore it if they think it didn't give the right result. (Rod Beckstrom used the euphemism "business judgement.") With MOPO, there isn't even any process, and an unlimited supply of opinions about what the right result should be.

We can expect the trademark crowd to challenge every new TLD on MOPO grounds, since they believe (not altogether unreasonably) that new TLDs are all offensive since they're just shakedowns of their clients.  Many strings are offensive in one language and benign in others.  Does the applicant get to say in what language the string is to be interpreted?  If so, does ICANN have to believe them?  Does the intention of the registrant matter? Is .NAZI acceptable if it's registered by a group of holocaust museums?

Even with guidance to answer questions like these, MOPO would be a political morass. As it stands, we're likely to see a .XXX type train wreck on every new domain.

Did you read my article? Michael D. Palage  –  Sep 11, 2010 10:58 PM PDT

I do not think that you did.

You will notice that my article proposes doing away with the MOPO challenge process. All that remains is a standing committee to review those applications that may raised objections/sensitives on the grounds set forth by the GAC. The report is non-binding and its ONLY effect is to allow applicants to make a business judgment rule on whether to proceed or to take a refund.

The process is for an gTLD to be added to the root, there needs to be the affirmative vote of 10 Board directors, regardless if it is corporate/brand TLD; a geographic TLD, a generic TLD, a moral objectionable TLD , a culturally insensitive TLD, etc.

One rule for all gTLD.

As also noted in the article is the important fact that the ICANN bylaws already recognize different voting majorities for different matters. I am just proposes to add another category.

Chaos is chaos John Levine  –  Sep 12, 2010 6:57 AM PDT

Yes, really, I did.

One rule for all gTLD

With or without your proposal, it's still No rule for all gTLD, and an endless political and legal free for all.  I really don't think that lobbying the board until 10 are willing to vote for you counts as a process.  As we've seen with .XXX, in the absence of following a concrete process, everything is argued de novo over and over until the losing side runs out of money or nerve.

The only thing that brought .XXX to an end was the threat of a very embarassing and expensive lawsuit. I agree with you that ICANN's individual board members mean well and many are hard working, but as a group they are impressively ineffective.

What's the Alternative? Michael Roberts  –  Sep 12, 2010 10:35 AM PDT

Mike P. at least has a pragmatic solution to the train wreck. 

No one, certainly not ICANN, is going to find a pretty answer to real or imaginary cultural insults in cyberspace.  No invocation of the American 1st Amendment is going to sway an insulted Hindu, Muslim, Jehovah's Witness or what have you. 

It's pretty obvious by now that the only rationale for new gTLD's is to exploit commercial branding for (mostly) large multinational corporations.  The US obsession with making a buck is driving us into a complete no-win situation for ICANN.  One would think that last week's object lesson in the perils of insulting the beliefs of millions of deeply religious people might cause ICANN to step back and think again.

Governance? What's that? John Levine  –  Sep 12, 2010 11:09 AM PDT

Mike P. at least has a pragmatic solution to the train wreck

Surely you're kidding.  Lobby, logroll, and/or bribe the board until you get 10 votes is not a solution to anything other than ensuring full employment of lobbyists.

Having a modest amount of experience in actual elected government, I can report that a public process, with public rules, public decision makers, and a public schedule actually works.  People may not always be happy with the result, but the losers believe that their issues have been weighed and don't feel gratuitously screwed.  ICANN should try it sometime. In this case a pragmatic set of rules might say that strings must not be offensive in any national language, and good intentions by the applicant don't matter.

Dunno where the reference to the 1st amendment came from, since ICANN is not by any interpretation a US governmental body, so I presume you're responding to some other unrelated argument.

John,I do not believe that we are Michael D. Palage  –  Sep 12, 2010 11:54 AM PDT

John,

I do not believe that we are actually that far off from one another. The problem with MOPO was that it was a subjective black hole. The ten vote approach is designed to be more black and white. The standard is nothing more than the ICANN Directors exercising their business judgment as set forth under California Corporate law that the TLD is in the organization's best interest.

Now do entrepreneurs looking to raise capital like this pragmatic approach to governing a global resource - NO. But the needs of the many (a stable, secure, reliable Internet) outweigh the needs of the few (those looking to make a quick buck).

As a consultant working with many prospective TLD clients, they are just waiting until the process opens. I feel no sympathy to those people that get up at the public forum and whine about running out of money. They should be mad at their consultants/advisers that gave them lousy advice. Instead there is the belief that ICANN must open up ASAP since people have invested money. It is insane, not unlike the sub-prime mortgage debacle. However, I do not want ICANN flooding the root zone with TLDs that will create instability for the Internet or the organization so someone can make a quick buck.

There is one point that I can still not reconcile. You talk about the dangers of lobbying, but then speak of how ICANN needs to act in connection with public rules, etc. Last time I checked there is a whole bunch of lobbying dollars being spent at the national and state governmental level.

Lobbyist are a fact of life, and each side in an argument will hire the best and most expensive guns in the business. That is why I still place my trust in ten ICANN Board directors making the right decision.

We agree, it's a train wreck John Levine  –  Sep 12, 2010 1:36 PM PDT

The standard is nothing more than the ICANN Directors exercising their business judgment as set forth under California Corporate law

This would be the same business judgement that gave us four flip flops on .XXX and almost a lawsuit? Somehow, that does not fill me with confidence.

I happen to agree with you that the Internet doesn't need any more TLDs, but since ICANN has spent a decade insisting otherwise, it's too late to fix that. Having a real process doesn't mean that domains would be waved through. It does mean that the standard would be something clearer than who whispers most appealingly into the ears of 10 board members.

ICANN has only self-invented legitimacy Michael Roberts  –  Sep 12, 2010 2:12 PM PDT

"Having a modest amount of experience in actual elected government, I can report that a public process, with public rules, public decision makers, and a public schedule actually works."

Would that it were so.  I struggled for some years to convince DC bureaucrats that any basic statute covering ICANN was better than no statute. Even something as vague as the Congressional charter granted to the National Academies of Science, which established a public trust role independent of the Legislature.  No joy.

Continuing to operate legally under California non-profit law coupled to the euphemism of "technical coordination" will never lead to any international acceptance of ICANN's role. Your own scepticism, John, is evidence of that.  Not to mention the marvelous doubletalk of "Affirmation of Commitments."

ICANN has itself to blame John Levine  –  Sep 12, 2010 2:40 PM PDT

Hmmn, once again this appears to be a response to something other than what I wrote.

ICANN's main problem is that for all the blizzard of structures and councils and acronyms, its actions are rightly perceived as capricious and corrupt, not corrupt in the sense of direct bribes, but corrupt in the sense that the nominal process is not the real process, and what really matters is who you know.  It reminds me of the court of the Sun King, with swarms of supplicants wandering around trying to get face time with the people who really make the decisions.

They would have the same problem whether or not they had a Federal charter.  You don't get trust by having it issued from above, you earn it by acting trustworthy.  The best thing you can say about ICANN is that it's so messed up that it's unable to do anything really disastrous.

I think it would be fair to Paul Tattersfield  –  Sep 12, 2010 3:22 PM PDT

I think it would be fair to say there is community agreement that new gTLDs provide entry and incumbents should not be allowed to prevent competition.

And I think it would also be fair to say there is community agreement (in the name of transparency at least) that ICANN should not be the business of picking winners and losers.

However do you really believe there is any degree of community consensus that these two tenets should simply be combined in the way the GNSO is proposing? Isn’t the result simply an abjuration of internet governance?

MOPO and .xxx provide emotive but illustrative examples - .xxx by definition draws two arbitrary boundaries; what’s not titillating enough and what’s too extreme even for .xxx.

Problems arise because every individual has strongly held beliefs of where they personally feel those two boundaries should be drawn, and worse many feel their personal view should be the one everyone else should use.

Now if the people deciding these issues can not see such a problem even with access to counsel practicing in civil litigation and specializing in intellectual property, competition and Internet law, is it likely they will be able to consistently come to the correct decision on more subtle issues?

Serious questions need to be asked as to why the GNSO’s proposal for new gTLDs is being allowed to suggest granting private monopolies in perpetuity to contacted parties and those contracted parties then being allowed to leverage the DNS to compete against others within the same sector who only enjoy second level branding.

Surely it would be more sensible to see the framework for new gTLDs more highly evolved so that these issues do not require humanistic determination?

A recipe for censorship Milton Mueller  –  Sep 15, 2010 12:31 AM PDT

Michael, it's rare but you've managed to get this 100% wrong. A supermajority standard for approval of any TLD that generates an objection is a recipe for a hecklers veto.

It's unfair and - in the United States unconstitutional - to require TLD applicants to have to jump through a very high hoop simply in order to exist. The distribution of burdens should be precisely the opposite. The presumption is in favor of an applicant and only in those exceptional cases where it is so repugnant or contrary to internationally established laws should it be vetoed. Thus, only if a supermajority thinks that your TLD is contrary to principles of international law, can it be vetoed legitimately. To reverse that is to give enormous power to objectors and to put an inappropriate burden on applicants.

I'm truly astonished that you, Michael, have adopted such an unprincipled and poorly thought out proposal. One never knows what drives the public positions of consultants, so I can only assume you have some reason for doing this that i don't know about.

Choosing between the lesser of two evils Michael D. Palage  –  Sep 15, 2010 1:15 AM PDT

Milton,

First things first. When I write this and other articles in CircleID or for the PFF it is always my personal capacity. You should know this first hand in connection with our joint proposal regarding vertical integration in which I have taken a public position in clear opposition to at least one of my clients.  So please do not try to pigeon hole me as anyone's puppet. It would be like me attacking you for your position purely because it is tied to some grant you have received.

When I first discussed this concept with you several weeks ago, I listened very carefully to your counter super majority proposal for rejecting an application. After thinking about it for several days, it was my professional opinion that a super majority vote to approve (as oppose to block) was the appropriate step forward at this point in time for the reasons set forth in the article. 

Now while we may disagree, I do not think your position is unprincipled or poorly thought out. We just have a difference of opinion. I believe that after 11 years of knowing one another I did not become an unprincipled idiot over night.

So I accept the fact that we disagree on this point, however, I see no reason why we have to be disagreeable.

As I have stated in my article I trust that a super majority of the Board will do the right thing and will not censor gTLDs from the root. Now since you and others seem to lack confidence in the Board to do the right thing I have two requests: 1) what directors do you believe lack the integrity to do the right thing? 2) please help identify those potential Board candidates that have those qualities and get them to apply with the nom-com as well as through the GNSO which has an open Board seat up for consideration next year.

Best regards,

Michael

Boards, rules and unprincipled idiots Milton Mueller  –  Sep 15, 2010 2:03 AM PDT

Michael, I am not being disagreeable; you know me and I know you and we both call bullshit when we see it. That often makes people uncomfortable but it always saves a lot of time and gets us focused on the real issues by cutting through the hype.

We had a long discussion of this issue and you came away agreeing with me that it is _objections_ that should require a supermajority, not approval. OK, you changed your mind - fine, but why? Nothing in your article explains that. Nothing in your piece shows any awareness of the freedom of expression issue or the unfair burdens such a procedure would place on new applicants. Moreover, there is a MOPO process going on now that you have not participated in at all; we are coming to an agreement on a far better, more principled approach. Are you trying to undermine it? Are you even aware of it? If so, why not actually consult with people involved and either get your views discussed there, possibly introduced and debated?

What you've proposed is a popularity contest. I said the proposal is "unprincipled" because it empowers a minority of the board to veto a TLD for any reason whatsover. There is no requirement for a basis in international law, no fixed criteria, just the inability to get a supermajority. It would allow authoritarian governments - or even democratic ones bent on punishing an enemy or asserting their power - to veto TLD applications for any reason. This is an invitation to prolong and repeat the endless whispering and political lobbying of the .xxx drama several times over. If you can persuade, bribe, cajole, intimidate or threaten 8 or 9 Board members into not voting for a TLD you can kill it. No standards, no criteria, just pure politics. Promoting such a policy requires a really heavy burden of proof and you haven't even come close to meeting it.

Your proposal is diametrically opposed to the first principle of the new gTLD policy: that the criteria applied must be objective as possible and give applicants some reasonable certainty as to whether they are in compliance or not.

Did you "become an unprincipled idiot over night?" No, of course not. So what did happen? I don't think you are an idiot, and I know you have some principles. So you tell me.

Is the board composed of unprinciple idiots. Surely you know that the rules and norms controlling a powerful global governance institution has to assume that they all are.

But hey, if your message is just, "trust the board to do the right thing" then we don't need any rules or policies, we just give them unlimited power to do whatever they want.

Don't like that option? Uh, why not - tell me which board members do you believe lack the integrity, etc., etc.

enchante,
Milton

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