Last month ICANN began soliciting comments on Stuart Lynn’s A Plan for Action Regarding New gTLDs, which will be one of the Internet governance organization’s primary discussion topics at its December meeting in Amsterdam.
In the past, ICANN has made some fundamental errors implementing new gTLDs (generic top-level domains), most of which stemmed from a failure to enforce rules to ensure fairness and public accountability. Although it is highly unlikely that ICANN will improve the fairness of future gTLD rollouts, given ICANN’s increasing isolation from external input, it is nonetheless important to question the three parts of Stuart Lynn’s plan for action.

Examining Part I:

“A Proposal for the Board to Extend the Proof of Concept in Parallel with Evaluation of the new gTLDs: This proposal provides the Board with the option, should it so wish to do so, of extending the original “Proof of Concept” to solicit up to three more sponsored TLDs, subject to certain conditions, following a suitable, but short, bidding process. Applicants for sponsored TLDs from the previous round would be invited to update their proposals and resubmit them, but new proposals would also be invited.”

This section focuses primarily on sponsored gTLDs, which, according to Mr. Lynn, have “fewer worries about trademark infringement and cybersquatting.” While the problems Mr. Lynn alludes to are not in dispute, the difference in problem levels between sponsored and unsponsored gTLDs can be attributed as easily to ICANN’s failure to enforce registration rules for the unsponsored gTLDs as to any other cause. This is particularly true regarding the ill-advised and highly abused preregistration, or “sunrise,” rules for accommodating trademark holders, where persons were allowed to register domain names with no clear trademark, sometimes for generic names or terms that would never pass muster for trademark consideration! It was also true for the so-called “landrush” rules governing open registration, which were supposed to dictate first-come, first-served, but often somehow allowed for whole ranges of domain names to be already reserved when the gates opened. In both cases, the public is left with the perception that insiders received preferential treatment over members of the public.

Despite these past failings, there is certainly a place for sponsored gTLDs, targeted at various professions and trades. They would also be well received by interest groups, hobbyists, etc. However, there are two questions that need to be asked, and resolved, if sponsored gTLDs are to be opened in a fair and nondiscriminatory manner:

• Which sponsored gTLDs do we open? To date, the sponsored gTLDs being considered for implementation are targeted primarily at so-called “white collar” professions and interests. However, the Internet is an increasingly important communications and customer outreach resource for all manner of businesses in the “blue collar” manufacturing and services sectors. Perhaps gTLDs such as .union should now be given serious considerations by ICANN. Furthermore, most of the names in the pool of 40 gTLDs, [is this the correct URL? way more than 40 names here] from which ICANN chose the first seven new names, were finalized over two years ago. Since then, Internet use has extended far deeper into small-business and non-computer-related sectors. With that in mind, an open call specifically for gTLDs in the small-business and non-computer-related sectors is quite timely.

• Who will have a voice in the selection of sponsored gTLDs, and in the rules and restrictions that govern them? When the first 40 domains were chosen for consideration, the discussions regarding the selection rarely emerged outside of deep Internet industry circles. However, whether the Internet industry wishes to believe it or not, the Internet is an international public resource, and should be managed accordingly. In that light, ICANN should be holding an open comment period, similar to those that US regulatory agencies hold, to allow interested individuals a chance to steer the decision. Leaving the decision up to a registry or potential registry adds an artificial “filter” that perpetuates the while-collar, high-tech bias that colored the first 40 candidate names. We can do better by opening the conversation. Perhaps a good start would be “low buzzword count” advertisements in some of the internationally respected news services.

Examining Part II:

“A Plan for Implementing the Key Recommendations of the NTEPPTF Report regarding the Evaluation of New gTLDs: This plan for the Board’s consideration proposed how to implement the principal recommendations of the NTEPPTF Report for a Monitoring Program and an Evaluation, while recognizing the limitations of time and funding.”

This section of Mr. Lynn’s plan discusses implementation strategies for recommendations made by its New TLD Evaluation Process Planning Task Force (NTEPPTF). There are three specific areas being addressed in the NTEPPTF report, all of which are important and appropriate, but all of which are subject to possible manipulation or misinterpretation to justify the status quo (i.e., too few gTLDs!).

• Initial Evaluation Project - This calls for research on how well the new gTLD rollouts handled things like preregistration for trademark holders, cybersquatting prevention, enforcing registration rules, Whois accessibility and accuracy, protection against accidental or malicious acts, and legal or regulatory problems and disputes. I think most readers of CircleID are well aware of failures in all of these areas. However, while these questions should be asked and answered, decisions need to be made about the following:

Who will conduct the evaluation?
To avoid the appearance of bias, this evaluation needs to be performed by an outside organization without direct ties to ICANN or the Internet industry. ICANN has a history of manipulating its internal “studies” in order to get the results its board is looking for. If this evaluation is to have any credibility, it needs to be free of any insider influences.

Who will have input?
If the evaluation is to be meaningful, it must range far outside the halls of ICANN’s staff offices and the Internet registries. The At-Large and several non-government organizations (NGOs) have documented numerous instances of misconduct, and unfair or preferential treatment on the part of the registries charged with managing the new-gTLD rollouts. This information is critical to gaining a true picture of the successes and failures of the first seven new gTLDs. But it is not likely to see its way into any final report if responsibility for the review stays within the ICANN staff.

• Monitoring Program - The second major recommendation of the NTEPPTF was to set up a monitoring program to examine the effect of the seven new gTLDs on root server performance, DNS stability, Whois accuracy and completeness, registry rule compliance, and the effectiveness and compliance of “sunrise” and “landrush” start-up rules. This program is necessary, but will be effective only if conducted properly. Which begs the following questions:

Who will conduct the monitoring program?
Once again, any program conducted or influenced by ICANN or the registries will lack credibility within the Internet community. Any monitoring program developed should be conducted by an outside activity with minimal direct ICANN or registry involvement.

How will public complaints be accepted and investigated?
NGOs and the At-Large have documented numerous instances of rule violations, preferential treatment and bad judgment on the part of registries managing new gTLD rollouts. Any monitoring process that is developed needs to include procedures to accept and investigate complaints lodged by NGOs, the At-Large, private individuals, and Internet industry “whistleblowers,” with mandated feedback to the submitter.

Does ICANN intend to act to resolve problems detected through the monitoring program?
This program will serve no useful purpose if ICANN continues to ignore misconduct, rule-breaking, and shady practices on the part of the registries. Violations should have clear, pre-identified punishments tied to them, and ICANN should be expected to promptly apply them, up to and including cancellation of registry contracts when violations remain unresolved, or are repeated.

Examining Part III:

“A Recommendation that the Board seek DNSO (or its successor) advice on how to evolve the top level generic namespace: This recommends that the Board ask the DNSO (or its successor depending on what evolves in Shanghai) to develop a recommendation on how to evolve the generic namespace, with specific focus on the question as to whether and how to rationalize the space (that is, to develop a taxonomy for top level domains); whether to expand the space strictly according to market demand; or whether to pursue some third alternative; and to develop other principles that should govern the evolution of the namespace.”

This section presents two different proposals for designating future gTLDs: the “laissez-faire approach,” conducted similarly to the previous round, where potential registrars recommend names; and the “taxonomic approach,” where “a broad community of ICANN stakeholders” designs the new TLD structure.

Mr. Lynn’s recommendation is that “the Board seek DNSO (or its successor) advice on how to evolve the top level generic namespace.” I disagree. We need the involvement of the entire Internet community on this one, not an in-house ICANN study led by the Internet industry-dominated DNSO. The future shape of the gTLD namespace is more a political issue than a technical one, and we need far greater discourse on this subject - by groups and entities representing diverse interests - than the subject would ever receive in a closed DNSO forum!

In Stuart Lynn’s plan for action regarding new gTLDs, there are several questions of importance left unanswered that need to be addressed. In the next CircleID issue, I will put these questions forward.