Overview: ICANN’s Governmental Advisory Committee (GAC) has reacted to the ICANN Board’s November 2016 decision to authorize the release of two-character domains at new gTLDs with advice to the Board that does not have true consensus backing from GAC members and that relates to procedure, not policy. The Board’s proper response should be to just say no, stick to its decision and advise the GAC that it will not consider such advice.

Instead, the Board has, against the preliminary advice of the policy-making Generic Names Supporting Organization (GNSO) Council, initiated discussions with aggrieved GAC members that may reopen its decision. Continuing down this dangerous path may provide governments with far more leverage over ICANN policy decisions than was ever envisioned or intended by the long debated and carefully crafted new Bylaws language addressing the Board’s responsibility to give attention to GAC advice.

Here’s the full story —

On March 15, 2017 ICANN’s Governmental Advisory Committee (GAC) issued its Communique at the ICANN 58 meeting in Copenhagen, Denmark. Section VI of that document contains what purports to be GAC Consensus Advice to the Board, and the fourth item on which such advice is rendered is 2-Character Country/Territory Codes at the Second Level. Such policy advice would arguably be in order as a valid response to the ICANN Board’s decision of November 8, 2016 relating to “Two-Character Domain Names in the New gTLD Namespace”, in which it authorized the delegation of 2-chacter domains at new gTLDs, subject to certain conditions and safeguards. The adopted Resolution makes clear that the GAC’s prior advice on this matter had been duly taken into account, and thereby the Board had fulfilled its duty under the relevant Bylaws provision.

That Board Resolution contains this important passage relating to the GAC’s input on this matter:

Whereas, the GAC has issued advice to the Board in various communiqués on two-character domains. The Los Angeles Communiqué (15 October 2014) stated, “The GAC recognized that two-character second level domain names are in wide use across existing TLDs, and have not been the cause of any security, stability, technical or competition concerns. The GAC is not in a position to offer consensus advice on the use of two-character second level domains names in new gTLD registry operations, including those combinations of letters that are also on the ISO3166-1 alpha 2 list.” (Emphasis added)

The GAC’s Copenhagen Communique shows that it is still not in a position to offer consensus policy advice on the use of two-character second level domains. The Copenhagen advice regarding 2-character country codes (CCs) is clearly procedural in nature as it merely requests that the Board negotiate with certain disaffected GAC members; noting the “serious concerns expressed by some GAC Members” and advising the Board to “engage with concerned governments by the next ICANN meeting to resolve those concerns” and “immediately explore measures to find a satisfactory solution of the matter to meet the concerns of these countries before being further aggravated”.

This does not constitute substantive policy advice. By its own terms, it makes clear that only some governments have serious concerns regarding the Board’s decision and that the engagement sought is not with the full GAC but with that relative handful of disaffected governments.

ICANN’s Board should properly provide the simple 2-character response of ‘No’ to this GAC advice. That’s No as a firm word of rejection; not .NO, the ccTLD of Norway. And that is precisely the substantive policy point—that CCs used by a nation state at the top level of the DNS as the two character designator of its ccTLD have no claim on or control over meaningful two character dictionary terms, or legitimate acronyms, in multiple ASCII-based languages when they are used as part or all of a domain name at the second level.

The full text of the relevant GAC advice is reproduced ( Appendix #1) at the conclusion of this article. Nobody likes for governments to be aggravated, but it’s clear from the text of this declaration that the GAC has not opined with a consensus stand on ICANN’s policy on 2-character domains but rather has asked ICANN’s Board to engage in discussions with a handful of aggravated GAC representatives who prevented the GAC from reaching a consensus position.

When I delivered impromptu remarks (Appendix #2) regarding this GAC procedural advice at the March 16th Copenhagen Public Forum I stated, “I would hope that the Board would not act on that advice, would not take that process advice”. The Chairman of the GAC, Thomas Schneider, responded, “Just to make this very clear, this advice is consensus advice that the whole GAC has agreed upon…And I don’t think it’s any—there’s anything intransparent (sic) or bypassing or bad about the Board engaging with the GAC or parts of the GAC in a responsive way, a responsible way, an accountable way, to try and find a mutually acceptable solution for everybody”.

To be clear, GAC Consensus Advice that the ICANN Board is required to consider and formally reject by at least a sixty percent Board vote is GAC advice “on public policy matters” and is applicable to “both in the formulation and adoption of policies”. There is no policy advocated in the relevant portion of the Copenhagen GAC advice; what is advocated is a desired procedural approach toward an undefined and uncertain policy result. Further, GAC Consensus Advice is explicitly defined in the revised Bylaws to be “understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection”, but this GAC advice on two-character domains reflects only the concerns of a small minority of GAC members who have been unable to persuade the full GAC to adopt their views by general agreement absent formal objection. (See Appendix #3 for the Bylaws language)

The precedent set by the Board in its handling of this non-consensus GAC procedural advice has a far broader importance for ICANN than the rather narrow issue of two-character domain names. First, if the GAC succeeds in getting substantial engagement from the ICANN Board in this instance it will have learned that, whenever the GAC cannot reach consensus on a policy issue because of a small number of GAC member holdouts, it can simply offload its internal dispute to the ICANN Board and ask it to engage in the heavy lifting of dealing with and trying to satisfy the aggravated governments. Second, and more ominously, it will demonstrate that in the post-transition era, absent implicit backing from the US government, that ICANN is susceptible to public threats from GAC members and will move toward reconsideration of settled decisions even in the absence of GAC Consensus Advice on policy when such threats are made.

As one domain blog reported the confrontation that transpired when the Board met with the GAC in Copenhagen:

Governments from Brazil, Iran, China and the European Union are among at least 10 angered that the names are either not adequately protected or only available for exorbitant prices.

The debate got very heated at ICANN 58 here in Copenhagen on Wednesday morning, during a public session between the GAC and the board, with Iran’s outspoken GAC rep, Kavous Arasteh, almost yelling at Chris Disspain, the board’s point man on the topic.

Arasteh even threatened to take his concerns, if not addressed, to the International Telecommunications Union when it convenes for a plenipotentiary next year.

“Your position is not acceptable. Rejected categorically,” he said.

“The multistakeholder process was not easily accepted by many countries. Still people have difficulty with that,” he said. “We have a plenipotentiary coming in 2018, and we will raise the issue if the matter is not resolved… It is not always commercial, government also has some powers, and we exercise our powers.”

Invoking the ITU is a way to turn a relatively trivial disagreement into an existential threat to ICANN, a typical negotiating tactic of governments that don’t get what they want from ICANN…

While no government spoke in favor of the ICANN policy on Wednesday, the complaining governments do appear to be in a minority of the GAC.

Despite this, they seem to have been effective in swaying fellow committee members to issue some stern new advice.

It would be nice to report that the Board saw the trap the GAC had set for it and avoided stepping into it. Unfortunately that is not the case. Notes of an April 27th call between ICANN’s Board and senior staff with some GAC representatives (full text below at Appendix #4) indicate that the Board “would consult with interested GAC members on this issue” and that “the Board sees this as the beginning of a dialogue to identify issues and possible solutions”. Even worse, ICANN staff was directed to “identify “interested” GAC members and whether to have bilateral or group discussions”.

It is confounding that, rather than telling the GAC that the Board’s November 2016 decision was consistent with relevant GAC advice and would not be revisited in response to the public agitation of a minority of GAC members, the Board has instead committed to a re-visitation of the process that can have no good outcome. If the discussions result in no meaningful changes in last November’s Resolution then the disaffected GAC members will likely be even more aggravated and more inclined to raise this matter at the ITU. If this action it further delays and complicates the release of two-character domains, or results in a substantial revision of the rules for their release, it will demonstrate that members of the ICANN community can have no firm confidence in well-considered and Bylaws-compliant Board decisions that raise protests from even a handful of governments.

It is also unfortunate that the Board has set down the path of engaging in consultations and discussions with the disaffected GAC members after receiving input from the GNSO Council—which is the primary locus within ICANN for establishing gTLD policy—in regard to this aspect of the Copenhagen Communique. While it will not be officially voted upon until the Council’s meeting scheduled for Thursday, May 18th, the relevant section of the GNSO Council Draft Response of the Copenhagen GAC Communiqué, which was transmitted to the ICANN Board on April 25th (two days prior to the above referenced call between the Board and GAC), declares that the GAC advice on two-character domains should not “cause the Board to re-open their decision on two letter codes at the second level”, and goes on to observe that this particular GAC advice is “inconsistent with the Consensus Advice mechanism found in the ICANN bylaws and as such should not be considered ‘Consensus Advice’... and is also inconsistent with ICANN’s commitment… that the GAC or individual governments would not end up with more power in a post-transition ICANN.” (Full text below at Appendix #5)

The substantive analysis of the underlying issue is simple: Those 2-character terms that are the subject of this debate only have some species of official meaning relating to a specific nation-state when they are at the right of the dot. Left of the dot, they can have multiple meanings, including being dictionary words in many languages or the acronym for the name of a person, business, or private sector/civil society organization. Government claims on these 2-character terms extend only to the top level of the DNS, and should be raised in the context of the second level only if a registrant engages in bad faith misuse of a domain to falsely claim status or affiliation with a particular government.

To be clear, the Aland Islands have no standing to control the use of ‘Ax’ at the second level, or Belgium ‘Be’, or Italy ‘It’, or American Samoa ‘As’, or Belarus “By”, or the Dominican Republic ‘Do’, or India ‘In’, or Iceland ‘Is”, or Malaysia “My”, or Somalia ‘So”, or Tonga ‘To’, or Tuvalu ‘TV’, or the United States ‘Us’—and that is the just the list of two-character country codes that correspond to short meaningful words in English, The very notion that nations possess pre-approval or other censorship rights for corresponding domain names borders on the absurd.

The Board’s decision of last November on this matter was well-considered and correct on the merits. The distressing fact is that the Board has already somewhat backed away from that decision and raised the specter that it will be revisited and perhaps revised. The lesson learned by the GAC and the ICANN community is that governments have found a means to influence ICANN that is neither contemplated nor sanctioned by the revised Bylaws provision that was meant to assure that governments’ role within ICANN would remain strictly advisory, and that the Board’s deference to governments would stop short of having to reopen final policy decisions that were substantively and procedurally sound. That is a very worrisome lesson.

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Appendix – Background Material

1)The Copenhagen GAC Communique‘s Advice on 2-Character Country/Territory Codes at the Second Level

In light of the discussions with the ICANN Board in Copenhagen on the Board Resolution of 8 November 2016 and its implementation of 13 December 2016 regarding two-letter country codes as second level domains,

a. The GAC advises the ICANN Board to:

I. Take into account the serious concerns expressed by some GAC Members as contained in previous GAC Advice
II. Engage with concerned governments by the next ICANN meeting to resolve those concerns.

III. Immediately explore measures to find a satisfactory solution of the matter to meet the concerns of these countries before being further aggravated.

IV. Provide clarification of the decision-making process and of the rationale for the November 2016 resolution, particularly in regard to consideration of the GAC advice, timing and level of support for this resolution.

RATIONALE

The GAC noted serious concerns expressed by some governments about the consequences introduced by the changes created by the 8 November 2016 Resolution. In particular, according to the new procedure it is no longer mandatory for the registries to notify governments of the plans for their use of 2-letter codes, nor are registries required to seek agreement of governments when releasing two-letter country codes at the second level, which, for example, allows registries to charge governments substantial fees. (Emphasis added)

2) Selected Portion of the Transcript of “COPENHAGEN—Public Forum 2 Thursday, March 16, 2017—13:45 to 16:45 CET ICANN58 | Copenhagen, Denmark”

PHILIP CORWIN: Okay. Thanks. Philip Corwin. I wear many hats in this organization. Speaking in an individual capacity right now.

I note that the subject I’m about to address was the—quite a bit of evidence or concern in two separate GNSO meetings I was in this morning. A clearly defined relationship between the Board and the GAC and the post-transition ICANN was a critical factor defining that for business sector support for the transition. Now, I was not at the Board/GAC discussion the other day, because I was locked in a different room. But I have read one press report. And I have read the GAC communique this morning.

On the subject that was just addressed, two-character domains, their release, the GAC advice was for the board to engage in separate discussions, either on a bilateral basis or collectively with a small group of governments from within the GAC, on this subject.

And I would hope that the Board would not act on that advice, would not take that process advice.

This is the reason: The Board should certainly engage with the GAC as a whole when the GAC has strong collective feelings or even full consensus on the underlying subject matter. But for the GAC to advise the Board to engage in separate discussions with individual governments makes no more sense than the Board advising the GAC that it should engage with separate discussions with individual board members. These are two collective bodies. There’s one GAC, not 190 GACs. And that’s what the relationship should be, in my opinion. And I hope the Board will consider the precedential effect of taking that GAC advice and how that might play out in the future if you act in the manner they requested. Thank you very much.

RINALIA ABDUL RAHIM: Thank you, Phil. I believe we’re clear on what is consensus advice and what is not. Mr. Thomas Schneider.

THOMAS SCHNEIDER: Thank you. Hello, Phil.

PHIL CORWIN: Hi Thomas.

THOMAS SCHNEIDER: Just to make this very clear, this advice is consensus advice that the whole GAC has agreed upon. And maybe it’s useful to hear that the Board said that it had accepted previous advice. There’s a feeling with very many—with a large majority of those who responded of countries that they feel that the Board has said it had accepted, but actually in substance, it has not. If the Board had publicly said it had not accepted the advice, what would happen in such a case, that the Board would need to talk to the GAC—and that does not just include the GAC chair, but it includes other members of the GAC as well—to try to find the so called mutually acceptable solution. And I don’t think it’s any—there’s anything intransparent or bypassing or bad about the Board engaging with the GAC or parts of the GAC in a responsive way, a responsible way, an accountable way, to try and find a mutually acceptable solution for everybody. So this is just my remark on this one. Thank you. (Emphasis added)

3) Relevant provisions of the ICANN Bylaws Pertaining to GAC Advice

Section 12.2. SPECIFIC ADVISORY COMMITTEES

(a) Governmental Advisory Committee

(x) The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the Board determines to take an action that is not consistent with Governmental Advisory Committee advice, it shall so inform the Governmental Advisory Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection (“GAC Consensus Advice”), may only be rejected by a vote of no less than 60% of the Board, and the Governmental Advisory Committee and the Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. The Governmental Advisory Committee will state whether any advice it gives to the Board is GAC Consensus Advice.

(xi) If GAC Consensus Advice is rejected by the Board pursuant to Section 12.2(a)(x) and if no such mutually acceptable solution can be found, the Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities. (Emphasis added)

4) Relevant Provision of NOTES OF BOARD-GAC CALL 27 APRIL 2017

2-character country/territory codes at second level The Board indicated that the ICANN organisation (“ICANN org”) would consult with interested GAC members on this issue. The staff lead is David Olive. The Board sees this as the beginning of a dialogue to identify issues and possible solutions. David Olive, supported by Olof Nordling, will work with GAC leadership to determine how to identify “interested” GAC members and whether to have bilateral or group discussions. Several GAC members suggested a group discussion with interested members would be more efficient and productive. Interest in participating was expressed by Argentina, Mexico, Singapore, Colombia, Egypt and the European Commission.¹ David Olive committed to having as many discussions as possible before ICANN 59, subject to availability of relevant people. A suggestion from the GAC Chair to first contact those who had approached the Board/ICANN directly was taken on board. The option of a group meeting at ICANN 59 was noted and left open.

1

Since the call the following GAC Members and Observers have expressed interest in participating in any discussion: Argentina, Brazil, Burundi, Chinese Taipei, Commonwealth Telecommunications Organisation, Dominican Republic, Egypt, Georgia, Guyana, India, Iran, Kenya, Korea, Malaysia, Mexico, Nigeria, Peru, Rwanda, Sudan, Swaziland, Venezuela, WIPO.

5) Relevant Portion of the GNSO Council Draft Response of the Copenhagen GAC Communiqué

4. 2-Character Country/Territory Codes at the Second Level

There should be no opportunity for this Advice to cause the Board to re-open their decision on two letter codes at the second level, as contained in the Board’s resolution of 8 November 2016 and subsequent implementation, which came at the end of a long process that included community consultation and input.

The Council is also concerned that the Consensus Advice contained in Section VI. 4. of the Communique that essentially requires the ICANN Board to negotiate directly, and reach resolution, with individual governments on two letter domain names at the second level is, in our view, inconsistent with the Consensus Advice mechanism found in the ICANN bylaws and as such should not be considered “Consensus Advice”. The GNSO Council regards this as an unhelpful attempt to sidestep requirements contained in the Bylaws to delegate GAC-equivalent consensus advice to individual GAC members, rather than the GAC as a whole. We note that this was discussed extensively during the CCWG-ACCT Workstream 1 process and was ultimately rejected. Bilateralism between the Board and individual GAC members also has the potential to undermine the utility of the GAC itself and is also inconsistent with ICANN’s commitment to the United States Government and other parts of the ICANN Community that the GAC or individual governments would not end up with more power in a post-transition ICANN.