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GAC, Inside Out: When GAC Members Abuse ICANN Procedures…

This post has been Published by CircleID on behalf of the author who has requested to remain anonymous.

There is no doubt that the new gTLD program has been the most encouraging revolutionary program in the history of internet.

As everybody expected, there have been lots of positive and negative insights about this program in recent years and during the process of development of the program, pushing ICANN to be very conservative in its program in order to satisfy all internet stakeholders.

A very tangible result of this conservation can be seen in the gTLD Applicant Guidebook (AGB), in which 2 out of 5 modules of the guidebook describe the objection and string confusion procedures (module 3 and 4). As mentioned by ICANN, The objection process is intended to afford businesses, individuals, governmental entities and communities an opportunity to advance arguments against introducing certain new gTLDs into the domain name system.

In module 3, ICANN has considered two types of mechanisms that may affect an application:

  1. The procedure by which ICANN's Governmental Advisory Committee may provide GAC Advice on New gTLDs to the ICANN Board of Directors concerning a specific application.
  2. The dispute resolution procedure triggered by a formal objection to an application by a third party.

In addition there have been several public comment and feedback systems designed as a mechanism to listen to the public voice.

On the same concept, the Governmental Advisory Committee (GAC) had a similar but formal feedback opportunity, the GAC Early Warnings, in which governments had the opportunity to formally send the negative comments on applications triggering the applicants to withdraw their applications.

ICANN did also provide the Independent Objector (IO) function, as one fundamental components of the objection process. Acting solely in the best interests of global Internet users, the Independent Objector could lodge objections in cases where no other objection has been filed.

But it is not the end of the story. ICANN has also done more favors to specific stakeholders by funding for objection filling fees for the At-Large Advisory Committee (ALAC) and governmental entities, remaining no question about its commitment to the public sensitivity regarding its new gTLD Program.

All of the above mentioned activities have been a response to the fact that the new gTLD program has a special sensitivity, and of course all have been wise actions done by ICANN in this regards. But the question is that "How much control has ICANN on the misuse of its objection mechanisms?"

The fact is that some GAC members are using (let's say misusing) all different objection processes which is designed for the usage of different stakeholders, as a mean in the hand of their government to stop specific applications. There are several cases where a specific government has used the Public Comment System, GAC Early Warning, Formal Objection, the Independent Objector (indirect motivation through public comments) and finally the GAC Advice, to stop specific applications. Governments like Brazil (against .AMAZON), Argentina (against .PATAGONIA), UAE (against .ISLAM and .HALAL) and some African states (against one of the .AFRICA applications!) are samples of this type of activity.

The result of such activities can be another loss of freedom of internet and another godfather-type control of governments on internet. Is ICANN acting the way to let another WCIT-12 occurs? Doesn't it create an inequality of stakeholders of the internet multi-stakeholder system?

Now, it is ICANN's turn to show how dominancy does it have on its self-created procedures whether to let or not to let internet enslavement happen by abusing its procedures.

By CircleID Reporter

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

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Comments

Aha John Levine  –  Jul 09, 2013 8:47 AM PDT

Thanks for this useful insight into the mindset of domainers who turn out to be so paranoid they're afraid to sign their whinges.

Sadly, anonymity is needed in a repressive environment Milton Mueller  –  Jul 09, 2013 12:54 PM PDT

It's typically churlish of Levine to dismiss this criticism by noting that it's anonymous. The fact of the matter is that nearly ALL businesses involved in this game are afraid to publicly criticize either ICANN or the GAC because they hold arbitrary, life and death power over TLD applications in which they have invested hundreds of thousands, possibly millions of dollars. ICANN's system of reviewing is so discretionary and politicized that any applicant who incurs disfavor among the Board or the GAC is likely to be the target of reprisals. Thus, the need for an (admittedly rather inarticulate) applicant to make these points anonymously should not be blamed on the applicant, but on the toxic environment that the GAC and the arbitrary and unprincipled actions of ICANN's Board and staff have created.

arbitrary and so forth John Levine  –  Jul 09, 2013 2:24 PM PDT

I am intrigued at your belief that it is arbitrary and unreasonable for Argentina to object to a US clothing maker globally appropriating the name of one of its provinces.

Patagonia is not a province of Argentina. Kevin Murphy  –  Jul 11, 2013 12:53 AM PDT

Patagonia is not a province of Argentina. If it had been, it would have been included on the list of reserved geographic terms in the Applicant Guidebook.

Be intrigued Milton Mueller  –  Jul 09, 2013 8:34 PM PDT

John, I hope you are intrigued enough to do some homework and some deeper thinking about this problem. If you do, you will discover that there is no treaty or globally applicable law or even a consensus that grants a regional or national government a right to "globally appropriate" the names of its provinces, rivers, forests, or plants or animals.

You will also find that for almost any geographic name you can come up with, there are multiple entities around the world that either use the same name, or use a name that sounds like it or looks like it in some script or another. My local city, Syracuse, took its name from a Sicilian city of some historical repute. Shall we be forced to change it? My local newspaper, The Syracuse Post-Standard, used the name of the city in its newspaper name (the horror!). That same newspaper registered syracuse.com (OMG!) without the permission of the City. And gee, the city has not collapsed; in fact, it's one of the better things about the city. There is a Rome, New York and probably one in a dozen other U.S. states and dozens of other countries. Washington is a city, a state, a historical figure's name, a common surname. Tell me how you manufacture exclusive rights from such situations - especially in the absence of any agreed international law?  Words are there to be used.

I am intrigued as to why you think the name of a local province is more important than the name of a global clothing producer. No offense to my friends in Argentina, but I don't see why one claim is superior to another. I'd put them both on the same status, first come, first served.

I am intrigued as to why you don't also advocate taking away the Amazon or Patagonia trademarks from the companies. That's where the real global appropriation comes from. Wanna go there? If not, why not - your logic takes you there. I want to know why you are not consistent, and advocating that their second-level domains be taken away, too. After all, a globally exclusive registration of the province name is right there in the second level. Remember when the government of South Africa claimed that it had exclusive rights to southafrica.com? They lost that case because there was no law to support their claim. The top level is no different.

You're a reasonable guy, John, or at least you occasionally play one on CircleID. Come to your senses and see through the political cant surrounding this issue. It's a great way for politicians with nothing constructive to contribute to the Internet's development to make claims that make them feel powerful and important, that's all. Their claims are based on nothing more than resentment and "us" vs. "them" politics.

I've never quite understood the idea that Kevin Murphy  –  Jul 11, 2013 1:24 AM PDT

I've never quite understood the idea that TLDs are equivalent to second-level .com domains.

Second-level domains can coexist. Top-level domains cannot.

The clothing maker can own patagonia.us, Argentina could own patagonia.ar and Chile could own patagonia.cl.

I often chalk this misunderstanding down to the ignorance of those people who believe .com is the only TLD. But I know you're not one of those people, Milton, so I scratch my head whenever you roll out the "a .com domain is the same as a TLD".

There's only one .patagonia, and it seems perfectly reasonable to me that ICANN should have some mechanisms in place to make sure, to the greatest extent feasible, that it goes to the "best" candidate or does not infringe upon the rights of others.

Had somebody else applied for .patagonia, the clothing company would have been well within its rights to file a Legal Rights Objection and, if it won, block the TLD from being delegated.

As it happens, GAC objections are only reviewed by the ICANN board rather than one of WIPO's legion of retired judges. Reasonable people can disagree about whether that's too political a mechanism, but to argue that getting a TLD should be as easy as paying your $10 for a .com domain strikes me as silly.

There is no "best" candidate Milton Mueller  –  Jul 11, 2013 8:18 AM PDT

You make some good points but I don't think you fully understand my perspective, which is both more carefully thought out, more sensible and more radical than you may be accustomed to in the ICANN environment.

First, you make the valid point that Patagonia or Amazon at the 2nd level allows many uses in different levels. What his perfectly sensible point ignores, however, is that all the people claiming exclusive rights in geographic terms (or trademarks) DON'T CARE which level it is in. Governments wanted - and in some cases got - reservations at the second level, didn't they? If the GAC were given veto power or "early warning" power or objection power over 2nd, 3rd, or 4th level names they would do exactly what they are doing now. What this tells me is that they are claiming exclusive rights to the string, wherever it occurs.

So the reason I throw ".com" examples at these people is simply to show them that good, socially productive uses of strings have come about in the absence of their vetos and regulations; and also that the parade of horribles that they project (e.g., taking over the market for books by registering .book) have NOT come about. And in fact, while .com is not the only TLD it does have a privileged status in most browsers and searches, a kind of default assumption that you will find what you want there for any genericword.com. Indeed, in the mid-late 1990s 80% of the world's domains were in fact registered under .com. So when I show that Amazon.com didn't hurt or violate any rights of Brazil or Brazilians, I think it provides a pretty good prima facie case that a .Amazon wouldn't either.

Now sadly, you've shown that you've bought into the madness that afflicts so much of domain name policy by putting forward the literally crazy idea that for any exclusive string XYZ, there is a "best" person who should get it. This is perhaps a divinely ordained legitimate user, who miraculously holds some globally applicable pre-emptive right to certain character stirngs in the domain name system. Disabuse yourself of that notion, which I insist is a path of madness, and you will finally "get" what I am saying about these issues. Just try on for a moment the idea that generic words and most other strings are not owned by anyone, are subject to dozens if not thousands of legitimate concurrent uses, and thus should be available for registration by anyone and everyone. No, this does not mean we don't respect Trademark rights - trademark violations occur through USAGE not through registration (in particular, uses that confuse or deceive) but there is nothing in the registration of a string itself that violates any rights. Contention can be resolved through auctions, trades, etc.

One of the interesting things that people steeped in the irrationality of ICANN and the DNS never seem to notice is that there are dozens of name spaces where none of the rules and restrictions we assume are needed in the domain name space exist. Let's take Twitter, for example. I could create a @patagonia twitter handle in a few seconds, assuming no one else has it, and tweet about whatever I wanted. No advance permissions needed, no 700-page applicant guidebook, no $185,000 application fee, no lawyers. Of course if I defraud people with that handle, e.g., pretend to be the company, use it sell sports equipment, etc. it would be legally actionable, and shut down quickly. But if I use the handle because my friends refer to me as "patagonia" or because I just bloody like the word, and my uses are based on that, no problem. Ex post application of law works perfectly fine. We don't need ex ante divinations as to who "deserves" the name more than someone else.

In short, there is no "best" person to make use of an open name in a unique-string environment, there are only thousands of possible uses. Maybe there is a role for pre-emptive reservation of a few fanciful trademarks and terms that might have technical implications. so yes, I'd go with some protections for rights and technical stability. But ICANN has no business trying to decide for society which use of a string is better than any other as long as no rights are violated. And it's attempt to do so is rather obviously backfiring and creating an over-regulated, restrictive environment that makes the whole domain name industry 5 times as costly and complicated as it needs to be.

There's a porn star called India. No Kevin Murphy  –  Jul 11, 2013 9:14 AM PDT

There's a porn star called India. No last name. Just India.

According to Wikipedia she's been in over 200 porn videos, has won half a dozen AVN awards and in 2011 was inducted into the Urban X Hall of Fame. She's been performing in porn since 1998 and has her own branded line of sex toys.

She also performs as a rap artist.

I can't pretend to have heard of her before, but it sounds like she's had quite a successful career.

She's definitely got a legitimate right to the gTLD .india, right?

If she applies for it first, the Indian government, which would no doubt be horrified, shouldn't have a say in the matter, right?

I'm churlishly using a porn star as an example to be provocative, but that is a potential outcome of the state of affairs you're proposing, isn't it?

If I'm continuing to misunderstand, please correct me. It's not deliberate.

India is a hypothetical example of course, because the names of countries are specifically banned by the Applicant Guidebook. The ban also extends, to a lesser extent, to provinces, cities and other types of administrative division within nations. Any string that is on certain ISO lists.

There's no way Ms India could get .india as a gTLD, in other words.

The reason Patagonia the clothing company had a shot at .patagonia is that it is a geographic descriptor than did not make it to the ISO lists. It's arguably a loophole/oversight/edge case, because like The Rockies it's cross-border and does not match an administrative division.

But if we can agree that the geographic ban in the Guidebook is appropriate, because it stops uses such as Ms India getting .india, then I see little reason why it cannot be extended by GAC decree/recommendation, on a case-by-case basis, to cover bloody big areas of the world. If a tiny village in Morocco can have ICANN protection, Patagonia certainly can.

Let's not forget, Patagonia is not a word plucked from the dictionary by the clothing company. It chose to name itself after a geographic area, using one of that geographic area's mountain ranges in its logo, in order to associate itself with that geographic area.

Porn stars, governments, what's the diff? Milton Mueller  –  Jul 11, 2013 9:37 AM PDT

;-)

don't have time to respond in full, but your argument does not scare me in the least. Yes, as a logical implication of my ideas, the porn star has the same right to a .india TLD as the government. And if you think that's crazy, then tell me why and how she got and uses the name India for her, um, trade now? Why is the DNS some kind of holy place?

To elaborate a bit more Milton Mueller  –  Jul 11, 2013 9:49 AM PDT

EITHER you have to argue that the porn star has no right to use the word "India" as her name, and indeed that all of us must seek permission before we adopt any labels in any context including the DNS, OR you must give her the same right to appropriate the term India in the DNS as anywhere else. There is no logical way to defend the DNS as an exceptional space. There arbitrary historical and political reasons for this distinction, I know, but no logical, public interest or public benefit arguments.

Uh huh John Levine  –  Jul 09, 2013 9:17 PM PDT

Thanks, but I'll skip the faux legal analysis, the amusing misunderstandings about trademarks, and the geography lesson, that last particularly since you know perfectly well that I live about 100 km from you near Ithaca, but I complement you on the excellent job you're doing promoting the interests of domain speculators.

The Patagonia clothing company employs about 1500 people and has an annual revenue of about $0.5 billion.  Patagonia the place has a population of about 2 million, and an economy in the $35 billion range.  While we might have an interesting colloquy about whether Syracuse NY or Syracuse in Sicily is more famous (ignoring the fact that the latter is spelled Siracusa or maybe Sarausa) there is only one Patagonia, and the fact that ICANN is prepared to sell its name to a US clothing company for a vanity domain shows how totally captured they are by their contracted parties.

So if the domain crowd are upset that ICANN is finally getting some adult supervision, I can't feel terribly sorry for them.

late breaking update John Levine  –  Jul 10, 2013 12:13 PM PDT

The applicant for .PATAGONIA withdrew the application yesterday.

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