IPv4 is Dead?

Tore pointed to section 3.0.3 of RIPE-582, the "IPv4 Address Allocation and Assignment Policies for the RIPE NCC Service Region:"

Conservation: Public IPv4 address space must be fairly distributed to the End Users operating networks. To maximise the lifetime of the public IPv4 address space, addresses must be distributed according to need, and stockpiling must be prevented.

According to Mr. Anderson, this is "something that has served us well for quite a long time" but now that IANA and RIPE have essentially exhausted their supply of free/unallocated IPv4 addresses, is obsolete. From the summary of the proposal:

Following the depletion of the IANA free pool on the 3rd of February 2011, and the subsequent depletion of the RIPE NCC free pool on the 14th of September 2012, the "lifetime of the public IPv4 address space" in the RIPE NCC region has reached zero, making the stated goal unattainable and therefore obsolete.

This argument appears to be the result of what I would consider a very narrow and unjustified interpretation of the goal of conservation. Tore seems to interpret "maximise the lifetime of the public IPv4 address space" to mean "maximise the duration that public IPv4 space remains available at the RIPE NCC." Under this translation, it is possible to believe that a paradigm shift has occurred which calls for a drastic reassessment of the goal of conservation. If, however, we take the goal as written in RIPE NCC policy as a carefully crafted statement meant to convey it's meaning directly and without interpretation or translation; a different conclusion seems obvious. While Tore is correct in his observation that IANA and RIPE NCC (and APNIC and soon ARIN) have all but depleted their reserves of "free" IPv4 addresses, that does not mean that the lifetime of the public IPv4 address space has come to an end. While I would love for everyone to enable IPv6 and turn off IPv4 tomorrow (or better yet, today), that is simply not going to happen all at once. The migration to IPv6 is underway and gaining momentum but there are many legacy devices and legacy networks which will require the use of IPv4 to continue for years to come. Understanding that the useful life of IPv4 is far from over (raise your hand if you have used IPv4 for a critical communication in the past 24 hours) makes it quite easy to see that we still have a need to "maximise the lifetime of the public IPv4 address space."

In fact, the IANA and RIR free pools have essentially been a buffer protecting us from those who would seek to abuse the public IPv4 address space. As long as there was a reserve of IPv4 addresses, perturbations caused by bad actors could be absorbed to a large extent by doling out "new" addresses into the system under the care of more responsible folks. Now that almost all of the public IPv4 address space has moved from RIR pools into the "wild," there is arguably a much greater need to practice conservation. The loss of the RIR free pool buffer does not mark the end of "the lifetime of the public IPv4 address space" as Tore suggests but rather marks our entry into a new phase of that lifetime where stockpiling and hoarding have become even more dangerous.

A Paradox

Tore made two other arguments in his presentation, and I have trouble rectifying the paradox created by believing both of them at once. The two arguments are not new, I have heard them both many times before in similar debates, and they invariably go something like this:

1. Because IPv4 addresses are now a scarce resource, people will only use what they need, so we don't need to require them to demonstrate need in policy.
2. Because IPv4 addresses are now a scarce resource, people will lie and cheat to get more addresses than they can justify, so we should remove the incentives for them to lie and cheat.

I want to look at these arguments first individually, and then examine the paradox they create when combined.

Early in his presentation, Tore said something to the effect of because the LIR can not return to RIPE NCC for more addresses, they would never give a customer more addresses than they need and that the folks involved will find ways of assessing this need independently. OK, if this is true then why not make it easy for everyone involved by standardizing the information and process required to demonstrate need? Oh, right, we already have that. Removing this standardization opens the door for abuse, large and small. The most obvious example is a wealthy spammer paying an ISP for more addresses then they can technically justify, in order to carry out their illegal bulk mail operation. The reverse is true as well, with no standard for efficient utilization to point to, it is more possible for an ISP to withhold addresses from a down stream customer (perhaps a competitor in some service) who actually does have justifiable technical need for them.

The second argument is more ridiculous. I truly don't understand how anyone can be convinced by the "people are breaking the rules so removing the rules solves the problem" argument. While I am in favor of removing many of the rules, laws, and regulations that I am currently aware of; I favor removing them not because people break them but because they are unjust rules which provide the wrong incentives to society. If you have a legitimate problem with people stealing bread, for example, then making the theft of bread legal does not in any way solve your problem. While it is possible that bread thieves may be less likely to lie about stealing the bread (since they no longer fear legal repercussions) and it is certainly true that they would no longer be breaking the law, law-breaking and lying are not the problem. The theft of bread is the problem. Legalizing bread theft has only one possible outcome: Encouraging more people to steal bread. So the fact that bad actors currently have an incentive to lie and cheat to get more addresses in no way convinces me that making their bad behavior "legal" would solve the problem. If anything it is likely to exacerbate the issue by essentially condoning the bad behavior, causing others to obtain more addresses then they can technically justify.

Of course it get's even worse when you try to hold up both of these arguments as true at once. If people can be counted on to take only what they need, why are they lying and cheating to get more? If people are willing to lie and cheat to get around the needs based rules, why would they abide by needs when the rules are removed? I just can't make these two statements add up in a way that makes any sense.

Conclusions

Since we still need IPv4 to continue working for some time, maximizing the lifetime of the public IPv4 address space through conservation is still a noble and necessary goal of the RIRs, perhaps more important than ever. Filling out some paperwork (with information you already have at hand) is a very low burden for maintaining this goal. At this time, there is no convincing rationale for removing this core tenant of the Internet model which has served us so well.

Written by Chris Grundemann, Network Architect, Author, and Speaker

"In relation to the problem of matching Internet Protocol addresses, my government will bring forward proposals to enable the protection of the public and the investigation of crime in Cyberspace." [on Youtube, 5:45]

As the Guardian pointed out:

The text of the Queen's speech gives the go-ahead to legislation, if needed, to deal with the limited technical problem of there being many more devices including phones and tablets in use than the number of internet protocol (IP) addresses that allow the police to identify who sent an email or made a Skype call at a given time.

What's the problem here?

The perspective of various law enforcement agencies is that the Internet is seen as a space that has been systematically abused, and too many folk are felling prey to various forms of deceit and fraud. If you add to that the undercurrent of concern that the Internet contains a wide range of vulnerabilities from the perspective of what we could generally term "cybersecurity," then it's not surprising to see law enforcement agencies now turning to legislation to assist them in undertaking their role. And part of their desired toolset in undertaking investigations and gathering intelligence is access to records from the public communications networks of exactly who is talking to whom. Such measures are used in many countries, falling under the generic title of "data retention."

In the world of telephony the term "data retention" was used to refer to the capture and storage of call detail records. Such records typically contain the telephone numbers used, time and duration of the call, and may also include ancillary information including location and subscriber details. Obviously such detailed use data is highly susceptible to data mining, and such call records can be used to identify an individual's associates and can be readily used to identify members of a group. Obviously, such data has been of enormous interest to various forms of law enforcement and security agencies over the years, even without the call conversation logs from direct wire tapping of targeted individuals. The regulatory measures designed to protect access to these records vary from country to country, but access is typically made available to agencies on the grounds of national security, law enforcement or even enforcement of taxation conformance.

So if that's what happens in telephony, what happens on the Internet?

Here the story is a continually evolving one, and these days the issues of IPv4 address exhaustion and IPv6 are starting to be very important topics in this area. To see why it is probably worth a looking at how this used to happen and what technical changes have prompted changes to the requirements related to data retention for Internet Service Providers (ISPs).

The original model of the analogous data records for the Internet was the registry of allocated addresses maintained by Internet Network Information Centre, or Internic. This registry did not record any form of packet activity, but was the reference data that shows which entity had been assigned which IP address. So if you wanted to know what entity was using a particular IP address, then you could use a very simple "whois" query tool to interrogate this database:

$ whois -h whois.apnic.net 202.12.29.211

inetnum: 202.12.28.0 - 202.12.29.255
netname: APNIC-AP
descr: Asia Pacific Network Information Centre
descr: Regional Internet Registry for the Asia-Pacific Region
descr: 6 Cordelia Street
descr: PO Box 3646
descr: South Brisbane, QLD 4101
descr: Australia

However, this model of the registry making direct allocations to end user entities stopped in the early 1990's with the advent of the ISP. The early models of ISP service were commonly based on the dial-up model, where a customer would be assigned an IP address for the duration of their call, and the IP address would return to the free pool for subsequent reassignment at the end of the call. The new registry model was that the identity of the service provider was described in the public address registry, and the assignment of individual addresses to each of their dial-up customers was information that was private to the service provider. Now if you wanted to know what entity was using a particular IP address you also had to know the time of day as well, and while a "whois" query could point you in the direction of whom to ask, you now had to ask the ISP for access to their Access, Authentication and Accounting (AAA) records, typically the radius log entries, in order to establish who was using a particular IP address at a given time. Invariably, this provider data is private data, and agencies wanting access to this data had to obtain appropriate authorization or warrants under the prevailing regulatory regime.

This model of traceback has been blurred by the deployment of edge NATs, where a single external IP address is shared across multiple local systems serviced by the NAT. This exercise can therefore trace back to the NAT device, but no further. So with access to this data you can get to understand the interactions on the network at a level of granularity of customer end points, but not at a level of individual devices or users.

We've used this model of Internet address tracking across the wave of cable and DSL deployments. The end customer presents their credentials to the service provider, and is provided with an IPv4 address as part of the session initiation sequence. The time of this transaction, the identity of the customer and the IP address is logged, and when the session is terminated the address is pulled back into the address pool and the release of the address is logged. The implication is that as long as the traceback can start with a query that includes an IP address and a time of day, its highly likely that the end user can be identified from this information.

But, as the Guardian's commentary points out, this is all changing again. IPv4 address exhaustion is prompting some of the large retail service providers to enter the Carrier Grade NAT space, and join what has already become a well established practice in the mobile data service world. The same week of the Queen's speech, BT announced a trial of Carrier Grade NAT use in its basic IP service.

At the heart of the Carrier Grade NAT approach is the concept of sharing a public IP address across multiple customers at the same time. An inevitable casualty of this approach is the concept of traceback in the internet and the associated matter of record keeping rules. It is no longer adequate to front up with an IP address and a time of day. That is just not enough information to uniquely distinguish one customer's use of the network from another's. But what is required is now going to be dependant on the particular NAT technology that is being used by the ISP. If the CGN is a simple port-multiplexing NAT then you need the external IP address and the port number. When combined with the CGN-generated records of NAT's bindings of internal to external address, this can map you back to the internal customer's IP address, and using the ISP's address allocations records, this will lead to identification of the customer.

So traceback is still possible in this context. In a story titled "Individuals can be identified despite IP address sharing, BT says" the newsletter out-law.com (produced by the law firm Pinsent Masons) reports:

BT told Out-Law.com that its CGNAT technology would not prevent the correct perpetrators of illegal online activity from being identified.

"The technology does still allow individual customers to be identified if they are sharing the same IP address, as long as the port the customer is using is also known," a BT spokesperson said in a statement. "Although the IP address is shared, the combination of IP address and port will always be unique and as such these two pieces of information, along with the time of the activity can uniquely identify traffic back to a broadband line. [...] If we subsequently receive a request to identify someone who is using IP address x, and port number y, and time z we can then determine who this is from the logs," the spokesperson said. [...] "If only the IP address and timestamp are provided for a CGNAT customer then we are unable to identify the activity back to a broadband line," they added.

But port-multiplexing NATs are still relatively inefficient in terms of address utilization. A more efficient form of NAT multiplexing uses the complete 5-tuple of the connection signature, so that the NAT's binding table uses a lookup key of the protocol field and the source and destination addresses and port values. This allows the NAT to achieve far higher address sharing ratios, allowing a single external IP address to be shared across a pool of up to thousands of customers.

So what data needs to be collected by the ISP to allow for traceback in this sort of CGN environment? In this case the ISP needs to collect the complete 5-tuple of the external view of the connection, plus the start and stop times at a level of granularity to the millisecond or finer, together with the end-user identification codes. Such a session state log entry takes typically around 512 bytes as a stored data unit.

How many individual CGN bindings, or session states, does each user generate? One report I've seen points to an average of some 33,000 connections per end customer each day. If that's the case then the implication is that each customer will generate some 17Mbytes of log information every day. For a very large service provider, with, say, some 25 million customers, that equates to a daily log file of 425Tbytes. If these CGN records were produced at an unrealistically uniform rate per day, that's a constant log data flow of some 40Gbps. At a more realistic estimate of the busy period peaking at 10 times the average, the peak log data flow rate is some 400Gbps.

That's the daily load, but what about longer term data retention storage demands? The critical questions here is the prevailing data retention period. In some regimes it's 2 years, while in other regimes it's up to 7 years. Continuing with our example, holding this volume of data for 7 years of data will consume 1,085,875 Terrabytes, or 1.0 Exabytes to use the language of excessively large numbers. And that's even before you contemplate backup copies of the data! And yes, that's before you contemplate an Internet that becomes even more pervasive and therefore of course even larger and used more intensively in the coming years.

The questions such a data set can answer also requires a very precisely defined question. It's no longer an option to ask "who used this IP address on this date?" Or even "who used this IP address and this port address in this hour?" A traceback that can penetrate the CGN-generated address overuse fog requires the question to include both the source and destination IP addresses and port numbers, the transport protocol, and the precise time of day, measured in milliseconds. This last requirement, of precise coordinated time records, is a new addition to the problem, as traceback now requires that the incident being tracked be identified in time according to a highly accurate time source running in a known timezone, so that a precise match can be found in the ISP's data logs. It's unclear what it will cost to collect and maintain such massive data sets, but its by no means a low cost incidental activity for any ISP.

No wonder the UK is now contemplating legislation to enforce such record keeping requirements in the light of the forthcoming CGN deployments in large scale service provider networks in that part of the world. Without such a regulatory impost its unlikely that any service provider would, of their own volition, embark on such a massive data collection and long term storage exercise. One comment I've heard is that in some regimes it may well be cheaper not to collect this information and opt to pay the statutory fine instead — it could well be cheaper!

This is starting to look messy. The impact of CGNs on an already massive system is serious, in that it alters the granularity of rudimentary data logging from the level of a connection to the Internet to the need to log each and every individual component conversation that every consumer has. Not only is it every service you use and every site you visit, but its even at the level of every image, every ad you download, everything. Because when we start sharing addresses we now can only distinguish one customer from another at the level of these individual basic transactions. Its starting to look complicated and certainly very messy.

But, in theory in any case, we don't necessarily have to be in such a difficult place for the next decade and beyond.

The hopeful message is that if we ever complete the transitional leap over to an all-IPv6 Internet the data retention capability reverts back to a far simpler model that bears a strong similarity to the very first model of IP address registration. The lack of scarcity pressure in IPv6 addresses allows the ISP to statically assign a unique site prefix to each and every customer, so that the service providers data records can revert to a simple listing of customer identities and the assigned IPv6 prefix. In such an environment the cyber-intelligence community would find that their role could be undertaken with a lot less complexity, and the ISPs may well find that regulatory compliance, in this aspect at least, would be a lot easier and a whole lot cheaper!

Written by Geoff Huston, Author & Chief Scientist at APNIC

Governments and direct influence

I know that I should explain here what ICANN and the GAC is, but this article is only of interest if you already have some background.

Over the past few years the role of the GAC, Government Advisory Committee, within ICANN, Internet Corporation for Assigned Names and Numbers, seems to have changed. Having started as an advisory board, giving an advice to the ICANN board, which can be ignored or only taken to heed in parts, GAC operates more forceful. From advice to orders it seems.

As ICANN is multi stakeholder all the way and, as most internet related organs work, bottom up and through consensus only. Perhaps the most stifling form of democracy, but democracy it is. Show up or participate remotely and your voice is heard.

In this environment governments are seeking attention for their needs and concerns over the internet. Shouldn't they ask themselves: Is this the correct place to have direct influence?

Why are governments concerned?

The internet as we know it was created outside the view and influence of governments and by the time of the commercial boom, let's say, since 1998, most western countries had liberalised the telecommunication markets. If anything was regulated it was the old telephony and access fees, not the internet.

With the rise of commercial opportunities also other opportunities arose for criminal actors, hacktivists, activists, free speech advocates, state actors, etc. The results of these opportunities concern governments (of all sorts, for different reasons) as all sorts of national interest from public safety to economic are at stake. By the time governments seriously started to look around for enforcement matters and regulations they faced a global challenge. Hence the drive to have more say on internet related policy discussions. Hence more interest in ICANN, ITU, IGF, etc., but mostly ICANN it seems. But again is ICANN the right places to have direct influence?

GAC and ICANN

What also surprises me, is that governments put all this effort into ICANN. In the end this organisation handles only one aspect of what makes the internet work. Is this because it is the best organised one? There are so much more topics and equally important ones, where there seems less involvement. The RIRs, technical internet bodies, CERT meetings, etc., are less government attended. So again is ICANN the right place to have influence?

National laws

If a government wants real influence it has to write law that is binding within its own country. It would be advisable that (several) governments coordinate on laws and regulations, e.g. the E.U., perhaps even beyond. The three times a year GAC meeting could be great for coordination. Why go national?

The internet is only as stateless as the first cable coming on/into land somewhere. Everything behind that is within a nation state. This is where influence starts or could start should a government wish to have influence.

Let's say that a government wants a ruling on:

1) a validation of (a domain name registration by) registrars and registries and resellers. It can lobby with ICANN and hope for self-regulation or it can write it in the national law;

2) abused IP addresses revocation. It can lobby with the RIRs (Regional Internet Registries) or write a regulation into national law;

3) revocation of abused domain names? Idem;

4) National organisations implementing best practices developed at the IETF, it can lobby there or oblige national organisations, e.g. ISPs, to respond and implement within six months through national law;

5) etc., etc., etc.

A national regulation, whether directly enforced or through mandatory self-regulation, would be much more effective from a government's perspective than lobbying within multi-stakeholder groups and hope for the best. Does this mean governments have to leave these groups?

A new role

I'm not claiming that governments should leave ICANN. I'm not even propagating regulatory regimes here. To the contrary, but I do think the present effort could be bettered. Governments should use ICANN meetings, and all others around the internet, to understand which topics are important, what issues are at stake, inform themselves as good as possible from all sides by asking all the right questions and to have a true understand of it all. From this understanding they can build their policies, using all that acquired information.

Policy that on the one hand aids the development of the internet and the economy while on the other assists in making it more secure. There is a fine line to walk here, but a line governments need to walk to be most effective on both sides. And, without the aid of industry it will never come about.

Conclusion

So, governments, lay down your ears and give your advice, but then go home and act on it in the best way possible. Preferably coordinated.

Written by Wout de Natris, Consultant international cooperation cyber crime + trainer spam enforcement

Although this article was first published just a few days ago, on May 8th, there have been several important intervening developments.

First, on May 10th ICANN released a News Alert on "NGPC Progress on GAC Advice" that provides a timetable for how the New gTLD program Committee will deal with the GAC Communique.ⁱⁱⁱ Of particular note is that, as the last action in an initial phase consisting of "actions for soliciting input from Applicants and from the Community', the NGPC will begin to "Review and consider Applicant responses to GAC Advice and Public Comments on how Board should respond to GAC Advice re: Safeguards" on June 20th. This will be followed by a second phase consisting of "actions for responding to each advice given by the GAC", including development of "a GAC scorecard similar to the one used during the GAC and the Board meetings in Brussels on 28 February and 1 March 2011".

In regard to how this may affect the timeline for introduction of new gTLDs, the Alert notes, "Part 2 of the Plan is not yet finalized and, with respect to some of the advice, cannot be finalized until after the review of the Public Comments due to be completed on 20 June." Thus it is impossible to know at this point in time how much delay ICANN's response to the GAC Communique may create for the introduction of new gTLDs, especially for those subject to the additional or further targeted safeguards for stings related to regulated industries and professions — although the outlook seems to generally adhere to the projections made in the article. I would guesstimate that some strings affected solely by the GAC's basic safeguards could launch in the third quarter of 2013, while those encompassed by the additional safeguards probably face delay until the last quarter of the year at a minimum. The next meeting of the NGPC takes place on May 18th in Amsterdam, where "Resolution(s) on GAC Advice" is on the agendaⁱⁱ; any such Resolutions are more likely to be procedural than substantive — with substantive reaction, much less implementation, waiting until after GAC interaction with the Board at the mid-July ICANN meeting in Durban.

Of course, regardless of how ICANN deals with the Communique, no new gTLDs can launch until the standard Registry Agreement (RA) is made final and adopted by the Board (and it may require yet further amendment to implement GAC safeguards and other advice) — and the same steps are completed for the revised Registrar Accreditation Agreement (RAA) if, as seems likely, only registrars adopting the revised RAA will be permitted to provide domain registration services for new gTLDs.

Second, on May 10th ICANN also released a video interview — "GAC Chair Heather Dryden on the Beijing Communiqué and New gTLD Advice"ⁱⁱⁱ — in which Chairwoman Dryden makes some significant assertions:

• The safeguard advice was not an attempt to impose new obligations on registry operators but about pre-existing obligations and applicable law, and should therefore be viewed as implementation rather than new policy.
• The GAC is not suggesting a new global regulatory regime but measures that are consistent with ICANN's existing role. Responding to questions posed by Brad White, ICANN's Director of Global Media Relations, Ms. Dryden explained:
• It's really not intended to impose a new global regulatory regime. It is intended to be consistent with ICANN's existing role and serve as a reminder to those that have applied of what is really involved with implementing if they are successful a string globally as well as really wanting to emphasize that some of those strings raise particular sensitivities for governments
• The GAC believes there must be a good reason to permit exclusive registrations at a generic gTLD and encourages community discussion of the proper "public interest' standard.
• The GAC does not view the Communique as 11th hour advice but as a more detailed reiteration of general advice on gTLD string categorization that was not taken. The Communique is utilization of a standard ICANN mechanism consistent with the GAC's primary role of advising on public policy aspects of ICANN actions.
• On the overarching political considerations that will color ICANN's response to the Communique — If ICANN were to ignore the GAC advice many governments would question the usefulness of the GAC and their continued participation in and support of ICANN. Ms. Dryden stated:

  WHITE: Suppose the [ICANN] board in the end says "thank you very much for the advice, we've looked at it, but we're moving on" and basically ignores a lot of that advice?

  DRYDEN: I think it would be a very immediate reaction, questioning the value of participating in the Governmental Advisory Committee. If it is going to be the place for governments to come and raise their concern and influence the decision making that occurs at ICANN then we have to be able to demonstrate that the advice generated is fully taken into account or to the maximum extent appropriate taken in and in this way governments understand that the GAC is useful mechanism for them.
  ...
  WHITE: What you seem to be saying is there is concern about whether or not some governments might pull out from that multi-stakeholder model?

  DRYDEN: Right, right why would they come? How would they justify coming to the GAC meetings? Why would they support this model if in fact it's there aren't channels available to them and appropriate to their role and perspective as a government?

• The GAC's priorities for the July ICANN meeting in Durban are the fourteen strings specifically identified as requiring further consideration, as well as implementation of the proposed safeguards. Ms. Dryden explained:
  There may well also be aspects of safeguard advice that we would discuss further with the board or with the community or would need to, particularly the implementation aspects of some of the new safeguards that the GAC identified.

Chairwoman Dryden also concedes that the GAC advice may have been misunderstood because it was developed behind closed doors and therefore deprived members of the ICANN community of an opportunity to better understand the GAC's concerns and reasoning, and she appears to pledge that the GAC will operate with greater transparency in the future.

In addition to providing useful background on the GAC's thinking, the interview also reiterates that if ICANN fails to provide adequate response to the Communique it risks disengagement from the ICANN model by GAC member nations. In addition to providing an opportunity for demonstrating effective self-regulation, reasonable implementation of the safeguards can also head off more onerous top-down legislative and regulatory approaches. Imagine, for example, if in the absence of a meaningful response by ICANN to the GAC the European Community (EC) were to adopt legislation that incorporates the safeguards as a prerequisite for the sale of new gTLD domains by registrars operating in the Community as well as for the transaction of online business with EC consumers by their registrants?

Finally, initial public comments on the safeguards have started to be posted.iv Predictably, some support various elements while others urge rejection on the grounds that the Communique consists of tardy and ill-defined changes in policy that are at odds with the multi-stakeholder model.

Notwithstanding some negative comments and related press treatment, the overarching politics of the situation will almost surely result in a very serious ICANN process for considering the proposed safeguards and other components of the Communique, and seeking to implement them in a manner that is effective but does not impose undue or inappropriate burdens on contracted parties while maintaining ICANN's role as technical manager of the DNS in a manner that respects and enforces existing public policy but does not usurp roles that belong to legislators and regulators. New gTLD applicants, other members of the ICANN community, and interested third parties have an opportunity to influence ICANN's further consideration and implementation of the GAC advice over the next several months.

* * *

NEW TOP-LEVEL DOMAINS

(Synopsis) The Governmental Advisory Committee communique and responsive requests for comments provide an opportunity for everyone involved with the Internet Corporation for Assigned Names and Numbers and every interest affected by the new TLD program to submit final input on its proposed framework for the launch of new TLDs, the author writes. The added steps will likely cause delays and impose new duties, but will also provide a blueprint for ICANN and registry operators to work cooperatively with the global public sector in decades to come.

* * *

On the afternoon of April 11, 2013, the last day of ICANN's 46th Public Meeting in Beijing, China, its Governmental Advisory Committee (GAC) issued a long and detailed communique with significant implications for the approximately 1,400 unique applications submitted to ICANN's new TLDs program — and, based upon its implementation response, for ICANN itself.

The communique — the end product of a week of intense work undertaken by more than 100 participants from governments attending and engaging in the Beijing meeting — was foreshadowed by a March 31 GAC announcement¹ that GAC meetings in Beijing would focus on "controversial or sensitive strings and applications," with sessions organized on "safeguard advice on the basis of categories of strings" and "GAC advice/objections on specific applications."

While the GAC has reverted to holding closed door meetings — excessively in our view, within an ICANN organization dedicated to transparency and accountability — during the days before the ICANN meeting and its initial days, the GAC did reach out. The GAC met with many parties, including the GNSO Council charged with TLD policy matters, the Commercial Stakeholder Group, the ICANN Board of Directors, and others.

The GAC was striving to deliver its input before the Beijing meeting concluded. The communique arrived in the middle of the Beijing Public Forum, where individuals directly address the ICANN Board on relevant topics.

The communique elicited immediate outcry from some that its proposals constituted major changes in the rules of the new TLD game after the game had begun, would cause undue delay, fostered internet censorship — and that it should be subject to public comment. But it received support from others who believe that the GAC is best positioned to address public interest issues implicated by ICANN activities. Further, many of the issues addressed by the GAC were not clearly evident until after the sheer volume and relevant specifics of new TLD applications had been fully digested.

ICANN's Unprecedented Move

In a somewhat unprecedented move, ICANN acquiesced to the call for public comments and is even requesting two separate types.

First, on April 19, new TLD applicants were advised that they were being provided with 21 days, until May 10, to respond to the GAC advice.²

That notice, as well as the official "GAC Advice Response Form for Applicants," takes a wide open approach. The notice provides no guidance on how feedback should be structured, such as whether applicants should critique the advice, outline how they intend to comply with it, or both. The attached form asks only for the applicant's name, ID number, and applied for string — followed by "Response:" and a blank space to fill.

Shortly thereafter, on April 23, ICANN published a general notice of request for public comment from any interested party on "New TLD Board Committee Consideration of GAC Safeguard Advice," with an initial comment deadline of May 14 and a subsequent reply period closing on June 4.³

The explanation of the general public comment invitation provides this background:
On 11 April 2013, the Governmental Advisory Committee issued its Beijing Communique´ in which it provided advice on New TLDs. The Board New gTLD Committee, acting on behalf of the full Board, will now consider how to address the GAC Advice. To help inform this process, the Committee has directed staff to solicit comment on how it should address one element of the advice: safeguards applicable to broad categories of New gTLD strings. Accordingly, ICANN seeks public input on how the Board New gTLD Committee should address section IV.1.b and Annex I of the GAC Beijing Communique´.

As can be seen, the scope of comment being solicited from the general public is circumscribed, with requested input limited to the portions of the communique proposing "safeguards" — although many commenters will likely ignore that restriction and address other portions as well.

Again, ICANN has provided no further refinement of the request for comment, giving no indication as to what feedback would be most useful to the Board's new TLD program committee. This unique and noteworthy approach may well result in feedback being received from parties not normally engaged with or active within the ICANN community.

Those most directly affected by the GAC advice, new TLD applicants, may well choose to participate in both their exclusive comment forum as well as this general one — especially as the reply period for the latter extends to nearly four weeks past their own May 10 cutoff date — if they are willing to make their responses public.

Potential Implications

Before getting into the specifics of the GAC safeguard advice, the following are some guesses about the implications and effects that will flow from it.

Timing of New TLD Introductions

From now until the end of the July 14-18 ICANN meeting in Durban, South Africa, the ICANN community will consider and react to the GAC Advice.

The time from Durban until the final meeting of 2013, November 17-21 in Buenos Aires, Argentina, will likely be the period of ultimate determination as to how much of it will be accepted by ICANN's Board, followed by implementation on the part of both ICANN and applicants.

ICANN's new TLD program committee, composed of non-conflicted Board members, has scheduled discussion of a "Plan for responding to the GAC advice issued in Beijing" as the only agenda item for its May 8 meeting.⁴ But substantive reaction is likely to await receipt and consideration of applicant and public feedback as well as staff analysis of both the communique and the comments.

As the GAC wants all new TLD safeguards to be subject to "contractual oversight" by ICANN it is highly probable that additional amendments to the proposed new TLD Registry Agreement (RA) will need to be drafted and put out for public comment prior to final adoption, adding some additional delay to the rollout of new TLDs.

Registry Operator Responsibilities

Acceptance of even portions of the GAC advice will likely impose duties on registry operators to update and strengthen their terms of service.

Registries will also need to submit or update Public Interest Commitments Specifications (PICS), and assume registrant monitoring and coordination duties with regulators and industry bodies that they probably did not envision or price into their business model.

Requirements that registries immediately suspend domains in certain circumstances could re-ignite "domain censorship" due process concerns that last flared during the PIPA/SOPA internet blackout.

Role of Governments at ICANN

ICANN's and key stakeholders' reactions to the GAC communique may well determine whether governments remain engaged in and embracing of the ICANN multistakeholder model — or begin to drift away.

Internet governance options exist outside of ICANN that are generally less favorable to and welcoming of contracted parties, business, and civil society. A multi-governmental shift away from ICANN would connote negative long-term implications for its existence. It could also eventually subject the DNS to a maze of disparate national laws and policies or the more worrisome specter of intergovernmental oversight far more intrusive than GAC advice.

ICANN, with the acquiescence of its multistakeholder community, will ultimately adopt a majority of the GAC recommendations in some form as doing so is in its long-term institutional interest.

Overall, the receipt of the GAC communique and ICANN's solicitation of applicant and public comments on it marks an inflection point for the organization, and the manner in which it assimilates the advice and the responsive feedback will define its working relationships with governments through the end of the decade, and perhaps beyond.

In their video interview at the conclusion of the Beijing meeting, Board Chairman Steve Crocker stated that the communique raised "interesting issues that have to be dealt with, and we'll be quite thorough about it." CEO Fadi Chehade committed that action would be taken only following consideration of public comment from the "entire community" along with staff analysis.

As it is not at all customary to subject GAC advice to direct public comment, this will be politically sensitive, complicated, and highly detailed work invoking multiple judgment calls.

New TLD Advice on Which ICANN Has Not Requested General Public Comment

The April 18 notice to new TLD applicants solicits feedback on every aspect of the GAC communique, with applicant responses to be published and provided to the full ICANN Board.

However, it is not clear whether individual applicant responses will be made public. Should any applicant respond to the GAC by seeking to file a PICS — which raises the collateral question of whether ICANN will waive the previously expired deadline for PICS submissions — those filings are made public at the updated application status page of the new TLDs website.

GAC advice affecting new TLD strings on which applicant feedback is being explicitly solicited, but general public response is not, includes:

Targeted Advice

Targeted advice against proceeding further on a specific application for .africa and one for .gcc, as well as on applications for .islam and .halal; and advice not to proceed beyond initial evaluation for two Chinese Internationalized Domain Name (IDN) strings (.shenzhen and .guangzhou) as well as the applications for .persiangulf, .amazon (and related IDNs in Japanese and Chinese), .patagonia, .date, .spa, .yun, .thai, .zulu, .wine, and .vin.

Written Briefing

The GAC's request for "a written briefing about the ability of an applicant to change the string applied for in order to address concerns raised by a GAC Member and to identify a mutually acceptable solution."

Such a briefing should also be made publicly available, as this is a critical issue for applicants and the general public because it relates to the central question of whether and the extent to which an applicant can amend its application to comply with a relevant GAC safeguard if it is adopted by ICANN.

Community Support

The GAC's view on community support for applications, in which it advises "that in those cases where a community, which is clearly impacted by a set of new TLD applications in contention, has expressed a collective and clear opinion on those applications, such opinion should be duly taken into account, together with all other relevant information."

That seems elementary, yet it fails to resolve ongoing disputes about whether or not certain strings legitimately fall into the "community" category, as well as who can legitimately claim to speak for the impacted community.

Singulars Versus Plurals

The GAC's belief that "singular and plural versions of the string as a TLD could lead to potential consumer confusion" and the consequent advice that the Board should "Reconsider its decision to allow singular and plural versions of the same strings."

This is a reaction to the February 26 decision of ICANN's string similarity panel that singulars and plurals of the same term did not create a probability of visual similarity confusion, a conclusion that many have categorized as clueless, as well as something that is likely to receive general public comment notwithstanding it falling outside the "safeguard' category.

At the Board-GAC interaction in Beijing, the Board advised the GAC that it would not second guess the Panel's conclusion and that "the ball is now in your [the GAC's] court."

The GAC has now forcefully tossed the ball back to the Board. Some ICANN constituencies have already weighed in with the view that singular and plural versions of a string should be placed in the same contention set.

IGO Protections

Reiteration of prior advice that "appropriate preventative initial protection for the IGO [Intergovernmental Organizations] names and acronyms on the provided list be in place before any new TLDs would launch."

The RAA

Advice that "the 2013 Registrar Accreditation Agreement should be finalized before any new TLD contracts are approved' with the notation that "The GAC also strongly supports the amendment to the new TLD registry agreement that would require new TLD registry operators to use only those registrars that have signed the 2013 RAA."⁵

IOC/Red Cross Protections

Strong advice that ICANN should "amend the provisions in the new TLD Registry Agreement pertaining to the [International Olympic Committee/Red Cross-Red Crescent] IOC/RCRC names to confirm that the protections will be made permanent prior to the delegation of any new TLDs.

PICs

A request for "more information on the Public Interest Commitments Specifications [PICS] on the basis of the questions listed in annex II."

These GAC-posed questions may become critical matters to be addressed, especially for applicants seeking strings in categories raising heightened GAC concerns as well as for third parties concerned by those applications. The questions raised in Annex II are addressed later in this article.

Annex I – The GAC's Proposed Safeguards

Annex 1 of the communique addresses "Safeguards on New TLDs" with introductory advice that "The GAC considers that Safeguards should apply to broad categories of strings. For clarity, this means any application for a relevant string in the current or future rounds, in all languages applied for."

The GAC is clearly stating that its advice should be interpreted and implemented broadly, not narrowly. This introduction further advises that all the proposed safeguards should "be implemented in a manner that is fully respectful of human rights and fundamental freedoms," "respect all substantive and procedural laws under the applicable jurisdictions," and "be operated in an open manner consistent with general principles of openness and nondiscrimination."

None of that seems particularly objectionable, but even this hortatory language raises such interpretative questions as to what are the "applicable jurisdictions" for a particular string — and how should operation in an open manner be squared with later admonitions relating to strings related to regulated industries and professions where domain registrations are to be circumscribed?

Safeguards Applicable to All New TLDs

The first detailed section of the advice proposes that six specific safeguards be applicable to all TLDs and "be subject to contractual oversight" by ICANN.

At a minimum, to the extent that ICANN accepts any of this it will then need to review the existing new TLD Registry Agreement (RA) — already the subject of some controversy, especially in regard to whether ICANN should have some unilateral right to amend it — and determine whether further amendments are needed to incorporate any parts of the GAC advice that are adopted.

As ICANN is not a governmental body and all of its powers over registries and registrars are derived via contractual enforcement, this is no small matter.

On April 29, ICANN published the Proposed Final New TLD Registry Agreement for public comment, open through June 11.⁶ Yet, except in the highly unlikely event that ICANN rejects all of the GAC's safeguards proposals, adoption of any of them would seem to inevitably require further amendment of the RA to spell out related, contractually enforceable registry obligations — with such further amendment triggering yet another period of public comment.

Further, as the following analysis illustrates, the question for ICANN's Board is not just whether to accept a particular safeguard but how to implement it in a manner that is effective yet reasonable. Determining the right balance will take time.

Six Basic Safeguards

The GAC's proposed six basic safeguards are:

1. WHOIS Verification and Checks

Registry operators are to conduct statistically significant checks at least twice a year on false, inaccurate, and incomplete WHOIS registrant identification data, and notify registrars of inaccurate or incomplete data.

This appears to impose proactive oversight and enforcement duties that registry operators were probably not contemplating. It also implicates matters addressed by the just-released-for-comment final Registrar Accreditation Agreement, as well as ongoing discussions focused on increasing WHOIS registrant data accuracy. All of these approaches must ultimately be reconciled and coordinated.

2. Mitigating Abusive Activity

Registrant terms of use must "include prohibitions against the distribution of malware, operation of botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law."

No one can be in favor of such activities, but that begs the questions of whether this imposes some affirmative oversight duty on registry operators, and what steps they should take to monitor compliance with and enforce such prohibitions. Also, in some instances the issue of whether a violation has occurred may not be discernible absent other adjudicative processes.

Trademark infringement, for example, is already the subject of the UDRP and national laws. It will also be addressed by the two new rights protection mechanisms — the trademark clearinghouse and uniform rapid suspension system in new TLDs — but all these mechanisms require some judicial or expert determination of where infringement has actually occurred.

Digital copyright infringement is an evolving and muddled area of the law in which courts in the same nation have reached sharply divergent opinions on similar fact patterns. While some "piracy' may be evident from a cursory review of a website, other alleged instances invoke unsettled legal issues. Ultimately, the question is whether registry operators should wait on law enforcement authorities or adjudicative processes to verify legally actionable harm, or take their own initiatives to identify and halt it.

3. Security Checks

In a bow to law enforcement concerns, registry operators are to periodically conduct technical analyses of whether domains are being used to perpetrate security threats "such as pharming, phishing, malware, and botnets," all the while "respecting privacy and confidentiality." Such information is already available from various industry groups, with existing registry operators typically engaged in these initiatives. In addition, the new TLD registry application process already includes security checks.

Nonetheless, this could require registries to take on proactive, quasi-police cybersecurity inquiries. More disturbingly, where security risks posing "an actual risk of harm" are identified, registry operators must notify the relevant registrar. If the registrar fails to "take immediate action" then the registry operator must "suspend the domain name until the matter is resolved."

This recommendation is almost sure to be controversial, as domain suspensions are widely viewed as equivalent to internet censorship. The notion that private parties will do this on their own accord, absent any due process requirements, and with no additional definition as to how or by whom the matter will ultimately be resolved, raises significant questions concerning registrant rights.

4. Documentation

Registry operators are to maintain statistical reports on inaccurate WHOIS records or security threats and provide them to ICANN on request. This advice does not seem particularly burdensome or controversial.

5. Making and Handling Complaints

Registry operators must have a mechanism for other parties to submit complaints about domains with inaccurate WHOIS information or domains being used to facilitate bad acts. This safeguard, motivated by growing concerns in regard to cybercrime, fraud, and abuse, is not particularly burdensome, either.

But questions remain unanswered: What is the registry operator's duty to further investigate such complaints, and what action should be taken if it finds them well-founded? Will ICANN's compliance staff have an intermediary role in this area?

6. Consequences

Registry operators must, "consistent with applicable law" — to the extent it exists or is clear — "ensure that there are real and immediate consequences for "domains with false WHOIS violations or being used in breach of "applicable law," and "these consequences should include suspension of the domain name."

Domain suspension, as was seen during the PIPA/SOPA debate, is viewed by many as synonymous with internet censorship, and the requirement that registry operators assume policing oversight powers may well generate substantial controversy. The requirement may also trigger discussion of the existence and adequacy of due process protections and a defined appeals process for affected registrants.

In sum, the six basic safeguards call for various oversight and investigative responsibilities that many registry operators may not have contemplated when they constructed their business plans.
Their implementation also may imbue registry operators with certain additional domain enforcement powers that in turn raise related due process questions.

To some extent, these recommendations may be an attempt by fiscally-strapped governments to place the costs of policing and subduing negative externalities resulting from new TLDs back onto registry operators, minimizing the need for potential allocation of substantial new public sector resources focused on law enforcement and cybersecurity.

Additional Safeguards for Particular Categories of New TLDs

Beyond those six basic safeguards recommended for all new TLDs, the GAC prescribes additional safeguards for strings related to regulated or professional sectors for which end users generally anticipate targeted protections.

The communique states:

Strings that are linked to regulated or professional sectors should operate in a way that is consistent with applicable laws. These strings are likely to invoke a level of implied trust from consumers, and carry higher levels of risk associated with consumer harm.

The dozen sectors identified by the GAC for application of these additional safeguards, accompanied in the communique by a non-exhaustive list of TLD applications asserted to fall within them, are:

children,
environmental,
health and fitness,
financial,
gambling,
charity,
education,
intellectual property,
professional services,
corporate identifiers,
generic geographic terms, and
inherently governmental functions.

One may certainly question why certain TLD applications made the GAC's nonexclusive list or have been placed in particular categories.

For example, .free, .gratis, .discount and .sale are all placed in the intellectual property category even though they might attract domains with no relationship to goods and services of a primarily IP nature. And .law is given its own separate listing rather than being placed in the professional services category along with .abogado, .attorney, .lawyer and .legal.

But, for the present purpose of this analysis, all the specifically listed applications are potentially subject to the additional safeguards depending on follow-up ICANN action. Other applicants with any possible relationship to the identified sectors should presume that they may be similarly affected before this process concludes. Those applicants, along with parties with concerns about or opposed to specific strings, should thoroughly review this advice.

Proposed Additional Safeguards for Regulated, Professional Sectors

The additional safeguards proposed for regulated and professional sectors — accompanied by some observations — are:

1. Applicable Use Policies.

Registry operators will include in their acceptable use policies a requirement that registrants comply with all applicable laws, including those that relate to privacy, data collection, consumer protection, fair lending, debt collection, organic farming, disclosure of data, and financial disclosures.

It seems axiomatic that registry operators must be in compliance with applicable laws of all types.

However, the questions raised again by such general use policies is to what extent a registry operator will be expected to proactively police and directly enforce them, and what are the applicable laws for a particular domain registrant?

What is a registry operator expected to do, for example, if a registrant is accused of operating in violation of a particular nation's laws and the registrant responds that under applicable principles for determining jurisdiction it is not subject to those laws? These are roles and decisions that have traditionally been delegated to law enforcers, regulators, and judicial forums, not to private parties lacking adjudicative expertise under contract to a nonprofit corporation.

2. Notifications.

Registry operators will require registrars at the time of registration to notify registrants of this requirement.

This is a relatively straightforward requirement to implement, although it will require registrars to identify and separate out affected TLDs and provide additional disclosures at or in close proximity to the time of domain registration.

It also highlights the fact that it is registrars, not the registry operators of new TLDs, who have direct contact and contractual relations with registrants. To the extent that registrars of particular TLDs are tasked with going beyond offering a simple domain purchase interface to registrants, and must provide and obtain acceptance of particular disclosures — much less ascertain that registrants satisfy relevant registration eligibility criteria — this will both complicate the domain registration process and generate costs that must be reflected in compensation arrangements with the registry operator as well as in the prices charged to registrants.

The only exception to the registrar standing as a separate intermediary between the registry operator and the registrant will be those instances in which the registry operator has directly affiliated with a registrar, now that ICANN has relaxed the former prohibition against such relationships — although, even then, for all but ".brand" or whatever other "closed generic" TLDs are permitted, there will likely be many unaffiliated registrars offering identical domain registration and renewal services for the TLD.

3. Security for Sensitive Data.

Registry operators will require that registrants who collect and maintain sensitive health and financial data implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law and recognized industry standards.

While clearly having direct bearing on registrants at strings falling within the health and fitness and financial categories, this safeguard may also implicate others — as an example, at such professional services strings as .accountant(s), .doctor, and .realtor, where registrants will likely collect and maintain confidential health and financial data.

Again, the more difficult issues are what are the "reasonable and appropriate security measures" that registrants should implement to safeguard such data, what monitoring and enforcement duties are expected of registry operators to assure compliance, and what constitutes the "applicable law and recognized industry standards' that should be looked to in establishing relevant security measures?

The proper standards for protection and disclosure of sensitive digital data remain one of the most hotly debated matters of 21st century cyberlaw and policy, with sharp disagreements between governments and with and within affected industries — yet registry operators are being asked to require the implementation of responsive security measures by their registrants.

4. Working Relationships.

Establish a working relationship with the relevant regulatory, or industry self-regulatory, bodies, including developing a strategy to mitigate as much as possible the risks of fraudulent, and other illegal, activities.

For registry operators of TLDs falling within the listed sectors this would require an ongoing, perpetual establishment of a "working relationship" — but with whom? As one example, with what financial regulatory authorities and industry self-regulatory bodies located in which nations must the operator of .retirement establish a working relationship?

Is it to be based upon the nations to which .retirement registrants direct their activities, or must it involve global outreach so that any potential future registrant and its customers will be accommodated by an already existent working relationship? And what would comprise an effective strategy to mitigate potential fraud or other illegal activities by registrants — would this require proactive engagement, monitoring, and enforcement by registry operators, who may well be asked by regulators to establish such frontline risk mitigation activities?

Overall, this safeguard must be read in conjunction with the others, with the expectation that regulators will likely seek proactive registry operator involvement in the development and implementation of risk mitigation strategies.

Further, registry operators must take into account that a TLD is a global DNS resource. A registrant eligibility policy or regulatory engagement approach too narrowly focused on a specific nation(s) or region may well and rightly be criticized by potential registrants, consumer groups, and other public and private sector entities.

5. Single Point of Contact.

Registrants must be required by the registry operators to notify them of a single up-to-date point of contact for the notification of complaints or reports of registration abuse, as well as the contact details of the relevant regulatory, or industry self-regulatory, bodies in their main place of business.

Single points of contact are already standard practice for ISPs and web hosting companies. This safeguard again places a duty upon registry operators to obtain information from registrants with whom they otherwise likely have no direct dealings or contractual relationship. While the actual information that must be obtained — the unitary contact point for urgent notifications of reported abuse at a website — is relatively simple, the question again arises regarding whether the registry operator has a duty to validate this data on an initial or continuing basis.

Further, since this safeguard relies on the registrant to designate the contact details for what it claims to be its relevant regulatory and industry self-regulatory bodies in its main place of business, is there any duty for the registry operator to investigate whether the registrant has accurately done so? And does "main place of business" just cover the jurisdiction in which the registrant is domiciled — or all the additional jurisdictions in which it conducts or may seek to conduct substantial volumes of business with customers (e.g., a Bahamas-based .insurance registrant soliciting and conducting business in the U.S., E.U., and certain Latin American nations)?

Miscellaneous 'Gripe Site Registry Advice

In related GAC advice, applicants for the .fail, .gripe, .sucks, and .wtf TLDs are singled out to "develop clear policies and processes to minimize the risk of cyber bullying/harassment."

Such "criticism" TLDs could be particularly susceptible to such abuses — though they already exist today, often centered in "closed garden" social media platforms.

Further Targeted Safeguards

In addition to the six basic safeguards and the five additional ones for regulated and professional sectors, the GAC has also proscribed three additional safeguards for at least seven of the twelve sectors listed above — financial, gambling, professional services, environmental, health and fitness, corporate identifiers, and charity.

These additional safeguards are aimed at "market sectors which have clear and/or regulated entry requirements in multiple jurisdictions," and are applicable to some of the strings in the listed sectors — although the GAC provides no guidance as to which strings might be exempt and on the basis of what criteria exemptions might be granted or denied.

These further targeted safeguards consist of:

1. Added Checks

At the time of registration, the registry operator must verify and validate the registrants' authorizations, charters, licenses, and/or other related credentials for participation in that sector.

This verification and validation duty is placed on the registry operator, rather than the registrar who interfaces with the registrant at the time of registration. While the registry operator night prefer to delegate such responsibilities to registrars with which it has established business relationships, doing so as a thousand-plus diverse TLDs launch could prove infeasible.

Thus, there are questions of how such a process would be coordinated and the status of a registrant's registration until such time as the verification/validation duty is completed. It clearly places significant new responsibilities on registry operators — although one that is already managed by many ccTLD operators — that will entail the use of in-house or outside compliance counsel and staff.

2. Consultations With Regulators

In case of doubt with regard to the authenticity of licenses or credentials, registry operators should consult with relevant national supervisory authorities, or their equivalents.

This would require each registry operator to develop policies relating to how authenticity of credentials will be evaluated, as well as establish relationships with relevant supervisory authorities in all nations in which registrants may be domiciled or otherwise have significant jurisdictional contacts.

Again, this creates additional significant new compliance responsibilities likely to require increased staffing by both registries and ICANN.

3. Post-Registration Checks

The registry operator must conduct periodic post-registration checks to ensure registrants' validity and compliance with the above requirements in order to ensure they continue to conform to appropriate regulations and licensing requirements and generally conduct their activities in the interests of the consumers they serve.

This would place a continuing, post-registration duty on registry operators to not just confirm the regulatory compliance and licensing validity of registrants but to make a subjective judgment on whether they are conducting their activities in consumers' interests.

This raises the issue of whether it is reasonable and appropriate to place such subjective judgment responsibilities on what are primarily providers of technical DNS services. On the other hand, TLDs aiming to serve specialized communities associated with regulatory and licensing requirements may wish to accept this GAC advice and address it via responsive PICs as well as cooperative engagement with ICANN compliance staff to develop reasonable yet effective enforcement mechanisms.

Restricted Registration Policies — Limited or Exclusive Strings

In addition to the above proposed safeguards, the GAC provided advice regarding restricted or exclusive access to strings.

First, as "an exception to the general rule that the TLD domain name space is operated in an open manner registration may be restricted," with such restrictions being particularly applicable for strings subject to the extra safeguards for regulated and professional sectors — especially including those with entry requirements.

However, the GAC advice proposes that such registration restrictions be administered by registry operators "in a transparent way that does not give an undue preference to any registrars or registrants, including itself, and shall not subject registrars or registrants to an undue disadvantage."

In other words, registrant entry can be restricted, but the restrictions must be geared to the relevant risks associated with the TLD. The restrictions must also be transparent and neutral under the subjective standard of not providing an "undue preference [or] disadvantage."

What this means in practice will likely be a subject of some debate, and certainly provides an opening for any party who believes that a TLD's proposed registration restrictions seek to advance goals other than legal/regulatory compliance and consumer protection — such as granting an undue competitive advantage to a subset of potential registrants, or seeking to advance policy goals within the TLD program that more properly should fall to legislators or regulators.

The second and final bit of GAC advice in annex I addresses the controversial subject of "closed generic" TLDs, for which ICANN recently conducted a public comment period which attracted one of the largest numbers of comments in recent years.⁷

That extensive public feedback has so far resulted in no formally announced ICANN policy or position. Amazon, Google, and other business applicants from both the United States and abroad have applied for generic word domains in which they hold no trademark rights yet for which they have proposed to be the sole registrant.

Critics of "closed generic' TLDs have charged that they are fundamentally incompatible with the new TLD program's stated goal of fostering innovation and competition. Google, for one, has responded to such criticism by proposing significant alterations for four of its most controversial applications.

On this hot button subject, the GAC simply states, "For strings representing generic terms, exclusive registry access should serve a public interest goal." That statement is followed by a non-exhaustive list of strings identified by the GAC as constituting generic terms.

Registry Operator Code of Conduct

It appears that this is one bit of GAC advice that ICANN may have already taken into account.

The revised RA released by ICANN on April 29 proposes to strike the phrase "that are reasonably necessary for the management, operations and purpose of the TLD" from Section 1b of Specification 9, otherwise known as the "REGISTRY OPERATOR CODE OF CONDUCT" (COC). The proposed changes would replace the provision with authorization for the registry operator to allocate up to 100 domain names for its own exclusive use.

That deleted phrase constituted the prior parameters of the exception to the general rule that a registry operator will not register domain names in its own right — and some closed generics applicants had argued that the word "purpose" permitted avoidance of seeking a sole registrant exemption under Section 6 of the COC.

Presuming that deletion carries through the public comment and Board approval process for the revised RA, it would seem that closed generic applicants may now have no way to avoid seeking a formal exemption from ICANN.

ICANN staff provided no comprehensive explanation of the intended purpose of these proposed amendments to the evolving contractual documents, so there may well be parties who interpret this alteration differently.

The exemption language of Section 6 remains unchanged in the revised RA, and allows ICANN to grant an exemption in its "reasonable discretion" if a registry operator demonstrates to ICANN's reasonable satisfaction that:

• all domain name registrations in the TLD are registered to, and maintained by, registry operator for its own exclusive use,
• registry operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an affiliate of registry operator, and
• application of the code of conduct to the TLD is not necessary to protect the public interest.

Thus, the GAC's admonition that closed generics must "serve a public interest goal" dovetails well with the Section 6 requirement that ICANN must determine that permitting closed generic operation is not adverse to the public interest — if all TLDs that propose to have the registry operator as sole registrant are indeed required to affirmatively seek an exemption.

The matter is not fully settled, as ICANN must still determine general principles to decide when application of the code of conduct is not necessary to protect the public interest. ICANN must then apply those principles on a case-by-case basis for those proposed closed registries that can still muster a convincing rationale for exemption.

It is quite possible that ICANN might find a public purpose in protecting trademarks at the top level of the DNS for non-generic, trademarked term ".brand" TLD applications.

The revised RA contains multiple, extensive additional revisions beyond the code of conduct changes that may also be highly controversial.

For example, on May 1 VeriSign Inc. filed an aggressive comment letter on the registry agreement,⁸ complaining that:

ICANN has broadened its unilateral amendment rights even further under a new and never before disclosed Section 7.7 which permits ICANN to make changes to the registry agreement on subjects that even the consensus policies are explicitly prohibited from considering — and beyond ... Under its bylaws, ICANN is to serve the Internet community based on bottom-up, transparent decision making. Sections 7.6 and 7.7 are the antithesis of lCANN's core values. They should not become part of registry agreements.

The Governmental Advisory Committee and Commerce Dept. should rein in any such unprecedented expansion of ICANN's powers. In the Affirmation of Commitments, the DOC affirms its commitment to a private sector led, bottom-up policy development process. Sections 7.6-7.7 seek the opposite.

As one example of what VeriSign purports ICANN could do unilaterally, "without governmental oversight and over the objections of registry operators," the letter states that:

ICANN unilaterally determines that no new TLDs should be operated in a closed manner and amends the agreement to require all TLDs to be open, endangering established registry business model.

However, as discussed, governments represented on the GAC have already given consensus advice that closed registries must further public interest goals — and many parties who filed public comments on "closed generics" wanted ICANN to ban them outright.

Regardless of the final provisions of the RA relevant to closed generics, the GAC's position is now clear — a string in which the registry operator is the only permissible registrant must serve a public interest goal. As for the overall RA, the new TLD program cannot go forward until all remaining disputes are resolved and it is made final, as there must be a standard contract document for registry operators to sign before their new TLDs can go forward.

Annex II – The GAC's PICs Questions

As noted earlier in this article, in the main body of the communique the GAC requests additional information on eight PICs-related questions contained in Annex II.

These questions relate to such matters as:

• Third-party and governmental intervention and objections;
• Availability of a PICs amendment process;
• Registry and public awareness of their commitments;
• Remedies for failure of a registry operator to submit PICs;
• Enforceability of PICs, whether by contract compliance or additional means; and
• ICANN criteria for acting on the recommendations of the PICs Dispute Resolution Provider (DRP).
• Remediation methods for registration policies resulting in harm.

While PICs were originally put on the table as an optional means for applicants to demonstrate their commitment to and recognition of responsibility to operate a particular TLD in a beneficial and non-abusive manner, many applicants did not file them because the self-imposed obligations result in no offsetting application award benefit.

The new TLD program rules encourage applicants for the same string in contention sets to resolve matters among themselves. Failing that, contention sets will be settled by auction where the highest bid settles matters irrespective of PICs or other qualitative applicant commitments.

Now the GAC communique may well be pushing PICs toward the status of mandatory and enforceable guarantees. Indeed, a few months ago the United States suggested that all TLD applicants should submit PICs — especially for categories of strings for which the GAC has requested additional safeguards.

If that is the case, then ICANN will eventually need to reopen the PICs submission window. Once filed, PICs are made available for public inspection — although not direct public comment — at the new TLD current application status page.⁹

Enforcement of Accepted GAC Advice

ICANN's Board consideration of the GAC communique is now clearly underway. The process raises threshold questions of whether and how various categories of GAC recommendations will be accepted, as well as multiple subsidiary issues of consideration of public comments, modification and implementation.

While we don't yet know which of the GAC advice will be accepted by ICANN, or with what modifications or implementation details, the realpolitik's of the current situation appear to dictate that a substantial number will find themselves into the final requirements for the first round of new TLDs.

That raises the question of how the safeguards and other accepted elements of GAC advice can be implemented in a manner that is "subject to contractual oversight by ICANN."

The standard approach would be to amend the RA so that the requirements for all similarly situated registry operators are uniform. But that could well require substantial additional delay in the new TLD program — first to draft concrete expressions of broad and subjective requirements and devise appropriate enforcement criteria, and then to republish the amended RA for further public comment.

The apparent controversy being generated by the April 29 RA revision drives home the possibility of extended delay.

The alternative approach would be to reopen the PICs window and require all applicants to submit initial or revised PICs that address the GAC's safeguards and other accepted advice.

But that would place an enormous review and feedback/revision burden on ICANN staff, as well as result in significantly disparate approaches and commitments from applicants seeking to operate in the same sector categories.

If a standard approach to consumer protection and harm mitigation are the main goals then a uniform approach through RA modification would seem the best route to assuring consistent implementation of safeguards.

Realpolitik 101: Substantial Portions of the GAC Communique Will Be Accepted and Implemented

Critics of the Beijing GAC communique may well assert that it comes two years too late, imposes inappropriate and vague burdens on registry operators that negatively impact their business models, gives governments an inappropriately enhanced role in ICANN's multistakeholder process, offloads governmental responsibilities onto the private sector, and will cause further delay in the new TLD program, among other complaints.

While there is some justification for those assertions, they are also beside the point.

ICANN is a unique and inherently fragile entity — a standalone nonprofit corporation imbued with authority to manage the addressing system of the most powerful global telecommunications network ever devised, dealing with issues that routinely intrude on legal and policy decisions normally the province of national governments or multinational organizations.

While freed of formal U.S. oversight in 2009, ICANN lacks the mass and velocity to escape governmental oversight of some type. Further, with ICANN no longer under the clear protective wing of a superpower, it must forge a rapprochement with the multi-governmental GAC to assure long-term viability.
Despite its CEO's articulation of "the multi-equal stakeholder model," in ICANN world, as in Orwell's Animal Farm, some stakeholders are more equal than others.

The Beijing communique can be regarded as the completion of a four-year governmental journey within ICANN since the termination of formal U.S. oversight and its replacement by the Affirmation of Commitments (AOC). There should be no surprise that it took so long — governments are by nature reactive and risk-averse entities, and the scale of the TLD program and the unexpected issues that developed added to the response time.

GAC members arrived early in Beijing and labored long hours over the course of an entire week to produce the communique. In a way, that commitment of time and effort, and the delivery and content of the document, signaled a broad multi-governmental embrace of the ICANN model and of the new TLD program. Imagine if, instead of proposing safeguards, the GAC had announced that the perceived threats to consumer protection, intellectual property, online competition and innovation, DNS stability and security, and other potential negatives generated by the program simply outweighed the potential benefits — and that therefore it should be halted. ICANN and applicants would now be in a crisis state if that had occurred.

If ICANN were now to reject the bulk of the GAC safeguards and other recommendations there might be no immediate dire consequences. What there likely would be is a collective decision by many governments that ICANN involvement is not worth the time and expense, and a drifting away of government involvement.

If, on the other hand, ICANN now adopts, with reasonable modifications, the bulk of the GAC advice it will provide the feedback that participating governments need to justify continued engagement — as well as to defend ICANN's model within other forums.

Continued Threats From ITU

The threat to ICANN's role and existence is far from dissipated — the International Telecommunication Union (ITU) will hold its World Telecommunication Policy Forum (WTPF) in Geneva this month, and the UN Internet Governance Forum is preparing for its next meeting in Bali, Indonesia. ICANN must continue to befriend governments, not alienate them.

A general embrace of the GAC communique can help ensure ICANN's long-term support from governments and thereby its survival — and, as for most organizations, self-preservation is a high priority. The survival of ICANN, whatever its flaws, is also better for business, civil society, and other constituencies than ICANN's replacement by a DNS manager in which governments have control rather than just substantial influence.

The GAC communique and responsive requests for comments provide an opportunity for everyone involved in ICANN and every interest affected by the new TLD program to submit final input on its proposed framework for the launch of new TLDs. Yes, it will likely cause some delay; and yes, it will impose unanticipated duties and responsibilities on all registry operators, particularly those seeking to operate strings related to sensitive sectors. But it also provides a blueprint for the means by which ICANN and registry operators can work cooperatively with the global public sector in decades to come.

ⁱ http://www.icann.org/en/news/announcements/announcement-2-10may13-en.htm

ⁱⁱ http://www.icann.org/en/groups/board/documents/agenda-new-gtld-18may13-en.htm

ⁱⁱⁱ http://www.icann.org/en/news/press/kits/video-gac-advice-10may13-en.htm

^iv http://forum.icann.org/lists/comments-gac-safeguard-advice-23apr13/

¹ https://gacweb.icann.org/display/gacweb/Governmental+Advisory+Committee

² http://newgtlds.icann.org/en/announcements-and-media/announcement-18apr13-en

³ http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm

⁴ http://www.icann.org/en/groups/board/documents/agenda-new-gtld-08may13-en.htm

⁵ The Proposed Final 2013 RAA was issued for public comment on April 22, with the initial and reply comment periods ending on June 4 — see http://www.icann.org/en/news/public-comment/proposed-raa-22apr13-en.htm

⁶ http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm

⁷ http://forum.icann.org/lists/comments-closed-generic-05feb13/

⁸ http://forum.icann.org/lists/comments-base-agreement-29apr13/msg00000.html

⁹ https://gtldresult.icann.org/application-result/applicationstatus

Copyright © 2013 by The Bureau of National Affairs, Inc.

Reproduced [or Adapted] with permission from Electronic Commerce & Law Report, Vol. 18, No. 20 (May 7, 2013). Copyright 2013 The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com.

Written by Philip S Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm

Although the idea originally was to hack into untraceable servers that could (most like would) be based abroad, now it appears that the Dutch government has used its imagination some more. Hacking devices, the obligation to cooperate in an investigation against oneself by providing passwords, tapping devices and e.g. Skype, it's all in the concept. Not surprisingly there is a lot of commotion from privacy advocates and organisations.

Anyway, I've had my say in the mentioned blog post and reiterate that this is a very, very sensitive topic, that could cross boundaries that we as society may not want to cross. Let me provide you with some links, so you can study it yourself. Unfortunately everything is in Dutch. Below you find links to the law texts, including explanations/intentions and a link to a blog post by PHD student Jan Jaap Oerlemans of the University of Leiden who provides some excellent observations.

Here's the official government publication on the law with links to the actual texts.

Here's the link to Jan Jaap Oerleman's blog.

Written by Wout de Natris, Consultant international cooperation cyber crime + trainer spam enforcement

Tom Wheeler nominated by President Obama as the new chairman of the FCC.

I have known Tom since 1983. He is an enormously energetic person and has been involved in the ICT industry for most of his working life, holding very senior positions within the American industry.

Currently he is the managing director at the Washington DC venture capital firm, Core Capital Partners, and before that, from 1979 to 1984, he served as president of the National Cable Television Association (NCTA) and as CEO of mobile carrier trade group CTIA from 1992 to 2004.

During all those years we have remained in touch and this connection was further strengthened when Barack Obama became President in 2008. As long as I have known Tom he has played a very active role in the Democratic Party and on one occasion I was invited to attend one of their events, which was quite an experience.

After the Obama win Tom became part of the Transition Team, overseeing the broad scale of technology, science and media. Before the election I had already discussed with Tom the idea that, if Obama were to win, I would be interested in sharing my views on telecoms with him. He took me up on that and put me in contact with Professor Susan Crawford who became the President's advisor on telecommunications. Together with an elite group of telecoms experts from America and Europe we produced several reports on telecoms infrastructure, structural separation, digital innovation and productivity.

There was also great interest in America in the developments around the Australian NBN and in 2009 I was invited to do a presentation on my views on this at a meeting in the White House. And our reports were used by the people within the FCC who wrote the American National Broadband Plan in 2010. It is interesting to see that many of the suggestions we made appeared in their plan.

The fact that Tom was part of the Transition Team, and the fact that he has shown great interest in different approaches to telecommunications, gives me a positive feeling about his appointment. Obviously an appointment like this is eliciting very strong comment in the USA — there are some who don't like the fact that Tom has such close links with the industry, while others see that as an advantage.

It is obvious that America is America, and that the political situation and the attitude to private and government investments is rather different from those in Europe and Australia. There will not be an NBN along the lines that developed in Australia, not even the tuned down-version of the Coalition.

As an American Tom is also a very strong proponent of reduced government involvement and strong support for commercial investments. While I do not always agree with his views on telecoms issues I have always been able to have very open discussions with him. My views are sometimes slightly more radical than his, but I have learned that the American way of thinking is indeed different and I can understand and respect that.

Tom's involvement in the mobile industry also gave him insight into spectrum issues, currently a hot topic in America. In the past he has challenged the broadcasters to become more active in the digital media and more innovative in using their spectrum for, among other things, mobile TV. So we can expect some fireworks there.

Of course, the really big issue in telecoms in the USA, as elsewhere, is the dominance of the vested interests and, particularly in America, their enormous influence in government policies (plutocracy). It will be interesting to see how Tom will handle these tricky issues. He will need all his diplomatic and negotiation skills to navigate a straightforward course through them.

I would like to take this opportunity to wish Tom wisdom and success in his new role.

Written by Paul Budde, Managing Director of Paul Budde Communication

The registry contract (Registry Agreement or RA) negotiations have been going on for much less time and really only picked up in earnest after several registries made outspoken, sometimes angry, comments at the way they felt ICANN was handling the negotiations.

Subsequently, a registry negotiating team was set up to work with ICANN in a similar fashion to the registrars (who have been locked in negotiations with ICANN for getting on to almost 2 years now). For ICANN and new gTLD applicants, time is of the essence as the program obviously cannot launch without proper contracts in place to cover the whole domain name registration, management and distribution chain.

This impacts registries as well of course, as many of them are either applicants themselves, or working for applicants.

On April 29, ICANN's VP for DNS Industry Engagement Cyrus Namazi posted an upbeat report on the negotiations on the ICANN blog. "I am delighted to report that we have now posted a proposed final draft of the New gTLD Registry Agreement," Namazi wrote. "Similar to the proposed 2013 Registrar Accreditation Agreement (RAA) that was posted for public comment on 22 April 2013, the ICANN community is now able to review and comment on this final draft before it is approved and adopted."

Namazi's comments are clearly drafted to get the message across that all is well and that the registries and ICANN left the negotiating room as BFFs. "A new and highly spirited sense of mutual trust has catapulted us into a fresh atmosphere of collaboration," he added. "The spirit of teamwork, productive dialogue and partnership that has underpinned this negotiation process is tremendously heartwarming, as it has allowed us to bring to fruition a robust contractual framework for the New gTLD Program."

Really? In a letter sent to ICANN, senior managers at Verisign, the most powerful registry by market share, are extremely critical of the way ICANN has handled the negotiations and of the end result.

Issues appear to center around a clause which would give the ICANN Board a unilateral right to amend the contract. This has been strongly criticized by both registries and registrars, and Verisign is not happy with what it sees as a tool to allow ICANN to change the rules of engagement for its contracted parties at will.

The letter is a strongly worded as Namazi's post is lovey-dovey. So who is right? The proposed new RA was posted for public comment on April 29 for 42 days. Comments will then be collated and summarised for the ICANN Board, so that it can decide whether to approve the contract or not.

This is a major test for today's ICANN. On the one hand, it needs to show that it can control its supplier chain and provide Internet users with a safe and stable environment. But it also needs to show that it can provide the businesses in the domain industry with such an environment, especially with an expected 1,200 new TLDs coming online in the next few years. And lastly, ICANN needs to show that the bottom-up policy development process that gives it its unique position in the world of Internet governance is sacrosanct. Right now, the registries seem to think that ICANN is ready to throw the model under the bus whenever it suits its own devises.

Written by Stéphane Van Gelder, Chairman, STEPHANE VAN GELDER CONSULTING

Specifically at issue is ICANN staff's unilateral decision to adopt the "trademark +50" proposal for new domains, which would provide trademark holders who have previously won a UDRP or court decision with rights to 50 additional derivations of their trademark in ICANN's Trademark Clearinghouse (TMCH). Under staff's plan, large trademark holders that register in the clearinghouse will be provided thousands of derivations of their trademarks since each separate country's registration of the same trademark provides the brand owner with an additional 50 entries in the TMCH.¹ Entries in the TMCH trigger infringement warning notices to domain name registrants which can lead to increased liability for registrants, discourage lawful registrations, and chill speech on the Internet.

ICANN's bottom-up community-developed process for creating policy had approved of a TMCH model that allowed "exact matches" of trademarks only to be placed in the TMCH. In 2007, ICANN's GNSO Policy Council, including representatives from the Intellectual Property and Business Constituencies, approved the GNSO recommendations that created special protections for trademark rights by a supermajority vote.² As part of the multi-year consensus process, both the subsequent Special Trademarks Implementation (STI) Team and the Implementation Review Team (IRT) considered the issue of providing rights to exact matches or additional derivations, and both community-developed teams specifically opted for exact matches only to be placed into the TMCH. ICANN's CEO testified before U.S. Congress in 2012 that expanding the scope of the TMCH further would be inappropriate since it would create new rights that do not exist in law and ICANN should not be creating unprecedented rights.³

Many months after the final TMCH model of exact matches only was published in ICANN's Applicant Guidebook and new domain businesses relied on it when filing their applications, ICANN's Intellectual Property and Business Constituencies lobbied ICANN's new CEO to make drastic changes to the community-developed policy and grant additional trademark rights in the TMCH.

After the October 2012 Toronto ICANN Meeting, a "strawman solution" was proposed by ICANN's new CEO which included a number of IPC/BC's substantive policy proposals to give trademark holders additional privileges in the domain name system, including changing the exact matches only standard approved of by the community.

Yet ICANN's CEO recognized that expanding the scope of the trademark claims service was a policy matter requiring GNSO Council guidance, as he stated on his blog⁴ in December 2012; and the CEO did write to the GNSO Council to request guidance on this policy proposal. Under ICANN's Bylaws, staff may not change GNSO-approved policy, except under a strict process that involves consulting with the GNSO and a 2/3 vote of the Board of Directors.

NCSG filed comments on the proposed policy changes and warned against re-opening previously closed consensus agreements and circumventing ICANN's stated bottom-up policy development process.⁵ In addition to the flawed process for adopting this policy, NCSG also detailed substantive concerns with staff's proposal to expand trademark rights beyond anything that exists in trademark law. It came as no surprise that only members of the IPC and BC supported the strawman proposals in ICANN's comment period.⁶

In the GNSO Council's February 29, 2013 response to the CEO regarding the proposal to expand the scope of trademark claims, the GNSO Chair wrote, "the majority of the council feels that proposal is best addressed as a policy concern, where the interest of all stakeholders can be considered."⁷ Thus the GNSO Council also determined this specific proposal to be a policy matter, requiring consultation from the entire community before such a change could be made to existing GNSO Council approved policy.

Yet with only an email sent on 20 March 2013, ICANN staff announced in an attached memorandum that it would expand the scope of the trademark claims service to give trademark holders rights to 50 additional derivations of their trademark, in contradiction to GNSO developed policy of exact matches only and the subsequent requested GNSO Council guidance on the matter.⁸

Staff's only explanation for such a drastic shift in the creation of new rights: "this proposal appears to be a reasonable add on to an existing service, rather than a proposed new service". Thus with a single line of evasive text, years of hard-fought community consensus policy was brushed under the rug and the new era of policy development via ICANN staff edict was solidified.

On 19 April 2013 NCSG filed this Request for Reconsideration of the staff decision because ICANN did not follow its stated process for changing GNSO-approved policy. If ICANN wants to deviate from Supermajority GNSO-approved policy, it must follow the process outlined in the organization's Bylaws, Annex A Section 9.⁹ As an organization that holds itself out as a champion of the bottom-up policy development process, ICANN is obligated to comply with community-developed policies, unless the Board of Directors can muster the necessary 2/3rd vote to over-turn the community decision. That mandatory process was not followed by ICANN's staff or Board in over-turning the community-approved policy in favor of staff's policy to expand the scope of TMCH.

ICANN's Board Governance Committee has thirty days in which to make to a recommendation to ICANN's Board of Directors regarding the NCSG's Request for Reconsideration or report to the Board on why no final recommendation is available and provide a timeframe for making a final recommendation on the matter. ICANN's entire Board should consider the recommendation of the Board Governance Committee at its next regularly-scheduled Board meeting.

Under Article IV Section 2 of ICANN's Bylaws, the Request for Reconsideration process is a mechanism intended to reinforce ICANN's accountability to the community for operating in a manner consistent with its Bylaws.¹⁰ Because the staff's unilateral decision to change GNSO-approved policy was not consistent with ICANN's Bylaws and contradicted ICANN stated policy, NCSG filed the Request to correct the error and bring ICANN into compliance with its Bylaws and stated policies.

NCSG requests that the Board reinstate the community-developed policy of giving trademark holders rights to include exact matches of their trademark only in the TMCH, which was the policy stated in ICANN's Applicant Guidebook when ICANN accepted applications for new domains.

• NCSG's Request for Reconsideration (PDF)
• Attachments to NCSG's Request for Reconsideration (PDF)
• ICANN Website on Requests for Reconsideration

¹ http://domainincite.com/...

² http://gnso.icann.org/en/issues/new-gtlds/...

³ http://www.internetcommerce.org/ICANN_Amnesia

⁴ http://blog.icann.org/2012/11/a-follow-up-to-our-trademark-clearinghouse-meetings/

⁵ http://ipjustice.org/wp/2013/01/14/...

⁶ http://forum.icann.org/lists/tmch-strawman/msg00096.html / See also:
Comments of Registrar Stakeholder Group
Comments from New TLD Applicant Group
Comments of Non-Commercial Stakeholder Group
Comments of the Internet Service Provider Constituency
Comments of Public Interest Registry

⁷ http://gnso.icann.org/bitcache/...

⁸ http://newgtlds.icann.org/en/about/trademark-clearinghouse/...

⁹ http://www.icann.org/en/about/governance/bylaws#AnnexA

GNSO Policy Development Process

Section 9. Board Approval Processes. a. Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN. If the GNSO Council recommendation was approved by less than a GNSO Supermajority Vote, a majority vote of the Board will be sufficient to determine that such policy is not in the best interests of the ICANN community or ICANN.

b. In the event that the Board determines, in accordance with paragraph a above, that the policy recommended by a GNSO Supermajority Vote or less than a GNSO Supermajority vote is not in the best interests of the ICANN community or ICANN (the Corporation), the Board shall (i) articulate the reasons for its determination in a report to the Council (the "Board Statement"); and (ii) submit the Board Statement to the Council.

c. The Council shall review the Board Statement for discussion with the Board as soon as feasible after the Council's receipt of the Board Statement. The Board shall determine the method (e.g., by teleconference, e-mail, or otherwise) by which the Council and Board will discuss the Board Statement.

d. At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation. In the event that the Council is able to reach a GNSO Supermajority Vote on the Supplemental Recommendation, the Board shall adopt the recommendation unless more than two-thirds (2/3) of the Board determines that such policy is not in the interests of the ICANN community or ICANN. For any Supplemental Recommendation approved by less than a GNSO Supermajority Vote, a majority vote of the Board shall be sufficient to determine that the policy in the Supplemental Recommendation is not in the best interest of the ICANN community or ICANN.

¹⁰ http://www.icann.org/en/about/governance/bylaws#IV

Written by Robin Gross, Founder and Executive Director of IP Justice

The internet and borders

People often refer to the internet as borderless and that there is a need to cooperate cross border between police agencies and other agencies regulating or enforcing the internet. This falls under the category "This needs a global solution" or the "this is cross border, we can not do anything!" type of comments.

Breaking down silos goes way beyond this. It is a national, organisational as well as international problem. Specific organisations work within their own remit and have, in some cases extreme, difficulty to reach out to other organisations. Others are not aware of each others capabilities. This discussion is about mental borders as well as legal, organisational and state ones.

The worst example

Usually the police is pointed to as a hard partner to work with. "We never hear anything back" or "We never receive information from them" are often heard comments. It is my impression that police organisations (and prosecutors) could have more understanding of what the capabilities of other enforcement agencies are, in order to coordinate actions in a better way. (What happens when two or three different organisations investigate the same botnet at the same time?!)

Law enforcement is more than enforcing the law from a penal code objective. Other agencies may be better equipped to solve a specific cyber crime than police on the basis of enforcing their "own" law. A "serious" crime could be dealt with through e.g. a Consumer Protection Act also. Or together there is a higher chance at success. These are important lessons. Break down your silos!

Cyber security

Cyber security organisations like Computer Emergency Response Teams (CERTs) and Computer Security Incident Response Services (Csirt) secure and monitor governmental and industry ICT systems, alert and respond to breaches, e.g. like ddos attacks or hacks. They have a lot of information and evidence that could actually assist enforcement agencies in doing their work. At the same time they can act on certain breaches in ways that law enforcement never could.

Cooperation between the two is not something which comes easily. For dozens of reasons. Hence the need to break down silos and create understanding.

Industry

And what about industry? What is the information it has on cyber crimes? If industry does not see the incentive to report all, let's say relevant, breaches to the proper authority, enforcement and security will never get the priority it deserves. Hence another reason to break down silos.

Who needs to act?

In the report of De Natris Consult (click here to view) called "National cyber crime and online threats reporting centres. A study into national and international cooperation." it is clearly shown that for an individual organisation it is nearly impossible to break a silo down. Simply because it's to difficult and not a part of the organisations primary task. So despite the fact that it is in the direct interest of a single organisation to be able to cooperate, it is nearly impossible to break through on your own when no one hears you knocking. It is important however to report your impossibilities to those who can make a difference. How will people who can actually make a difference ever know otherwise? Start breaking down your own silo in the right places.

So who needs to act then?

There are a few options. (My apologies for non-EU readers. I'm a bit EU-centric here, but please allow your imagination to run to your corner of the world and the options it provides.)

1. National government
This would help at national level. E.g. in a national strategy on cyber security a national coordinating body is foreseen and instituted by the national government. E.g. The Netherlands created the National Cyber Security Centre. It is very interesting to see the developments going on. Embedded officers from different agencies, industry and vital infrastructure work part time within the centre.

Some questions could be asked that can make a difference over time. How does the centre change knowledge and perceptions with time? Does it make a solid inventory of skills, complementary powers and different possibilities that different laws supply to fight cyber crimes? Does it take a closer look at whether present laws supply the needed powers to fight the different forms of cyber crime?

2. International bodies
ENISA currently plays a role in bringing CERTs and police agencies together. Could it play that role in a broader sense? So for other LEAs and police and CERTS?

EC3 could open itself to more enforcement entities, e.g. by providing common trainings, coordinate cyber actions, etc. It does not so at present, but it would be a good thing if EC3 looked into this option in the very near future. Who invites them to break down their silo?

Fill in your option here .....

3. International projects
What will a project like ACDC (Advanced Cyber Defense Centre) do to international cooperation? In this case it is about fighting botnets. From disinfecting end users computers to gathering, analysing and sharing data on botnets, botnet traffic and command and control servers in and through the central clearing house. What will aggregated data do in the fight against cyber crime and more so, what will it do for cooperation and understanding between different entities both public and private?

Conclusion

Why are all these questions so relevant? Because my bet is that all these agencies, from the military to secret services and from police to consumer fraud, spam and privacy agencies are all looking for the same people who make the internet not a very safe place to do business and pleasure today. There is, well there should be, a strong need to cooperate and coordinate.

Breaking down silos will not come easy. For many a reason. Still, if people responsible for this task are to make serious business with it, it is important to start asking the right questions. Let's do so at NLIGF this June, in Bali in October (I will do so here as moderator) and Vilnius in November and in all places where you think it is possible and necessary to do so. I'm always happy to discuss further or help out creating strategies or programs. The time seems right.

Written by Wout de Natris, Consultant international cooperation cyber crime + trainer spam enforcement

A number of states have legislated against community broadband networks, often resulting from the lobbying efforts of the main telcos affected. State Legislatures commonly pass bills revoking local decision-making authorities from communities, effectively making them dependent on the dominant cableco and DSL provider. The National Institute on State Politics has made a clear connection between industry contributions to politicians and hamstrung bills restricting competition to these telcos.

Following the success of Google's FttH offering in Kansas City, the FCC has promoted the so-called 'Gigabit City Challenge', aimed at encouraging broadband providers and state and municipal officials to provide communities in each state with a 1Gb/s service by 2015.Yet alternatives to the major telcos is gaining ground. Following the success of Google's FttH offering in Kansas City, the FCC has promoted the so-called 'Gigabit City Challenge', aimed at encouraging broadband providers and state and municipal officials to provide communities in each state with a 1Gb/s service by 2015. These would serve as hubs for innovation, and act as regional drivers for economic growth. Thus far there are more than 40 gigabit communities in 14 states. As part of its support, the FCC is holding workshops on best practices to lower costs and develop greater efficiencies in building the networks. In tandem with municipal efforts, the GigU initiative has helped develop gigabit networks in a number of university campuses.

The prospect for increased municipal involvement has improved with Google's expansion of its 1Gb/s service to Austin, Texas and Provo, Utah, where (in a change from its other deployments) Google acquired an existing municipal fibre-optic system (iProvo, set up several years ago, palmed off to a series of investors and largely hobbled by difficulties which included restrictions imposed by the local telco). The network is currently connected to less than a third of premises, but the job will be completed by Google, which will also upgrade the network to be on a par with those in Kansas City and Austin. It is expected that the same subscriber offer will prevail: a 1Gb/s broadband service for $70 per month, with the option of TV for an additional fee, and with a Google Nexus 7 tablet thrown in. Free broadband at a scaled-down speed may also be provided if subscribers pay an installation fee.

Google has looked at partnering with other municipalities that would reach hundreds of thousands of people across the country.

Many of these municipalities, as well as rural communities, are either developing new schemes of looking anew at earlier schemes. New schemes include United Services' 'United Fiber' FttH network in rural Missouri, while Palo Alto is looking to rekindle its longstanding effort to build a citywide fiber network. In its earlier incarnation, the fiber project was hobbled by the economic crash which led to the withdrawal of a partnered consortium and the nervousness of the city fathers to subsidise the scheme. Yet the city by the end of 2013 is expected to have accumulated $17 million in its project fund. The mood has become far more favourable, partly due to the encouragement from developments elsewhere. If other cities can work on delivering FttP as a community service and economic driver, and as a side benefit provide free WiFi, then why can't we?

Despite the obstructionism of the main telcos in realising municipal and rural broadband schemes, the can-do attitude which the US is known for is encouraged by developments thus far, and the snowball effect will be harder for telcos to stop.

Written by Henry Lancaster, Senior Analysts at Paul Budde Communication

For that matter, I don't have strong feelings for or against closed generics either, an other new gTLD issue that has recently been discussed even though it is not mentioned in the rules new gTLD applicants had to rely on.

What I do care about is predictability of process.

Yet, as Beijing showed, the ICANN community has an uncanny ability to throw last-minute wrenches at its own Great Matter, as Cardinal Wolsey called Henry VIII's plan to divorce Catherine of Aragon.

And we should all remember that the new gTLD program is our own master plan. It is born out of the community's bottom-up process for developing policy. We all own it. We all sanctioned it when it came up through our community and was given a green light by the people we elected to represent us on the GNSO Council, the body responsible for making gTLD policy. So we should now all feel responsible for seeing it to fruition.

Impressed by governments

So can this issue of plural TLDs that came out of nowhere during the ICANN Beijing meeting week cause yet more delays to the Great Matter that is the new gTLD program?

First of all, I was surprised to see it mentioned in the GAC Communiqué which provides the ICANN Board with Advice on the new gTLD program as required by the program's Bible, the Applicant Guidebook. The GAC said it believes: "that singular and plural versions of the string as a TLD could lead to potential consumer confusion. Therefore the GAC advises the ICANN Board to (...) Reconsider its decision to allow singular and plural versions of the same strings."

For governments to react so quickly shows that they now have the pulse of what goes on outside their own circle like never before. I digress here, but I think this is an extremely important development we should all take great pride in. The government representatives that attend ICANN meetings are knowledgeable and engaged in the community they are part of in a way that is probably unique in the world of governance. The rest of us may not always agree with their decisions or opinions, but we cannot disagree with their level of commitment. To the point that individual GAC members coming straight out of a gruelling 8 days of meetings will not hesitate to stand up in the public forum and give voice to their own personal opinions only a few minutes after the GAC Beijing Communiqué was published. I am impressed.

But what about that advice? Will plural TLDs give rise to user confusion and should this debate even be opened at this time? And make no mistake, having GAC Advice on the matter is not the same as discussing it over coffee. Section 1.1.2.7 of the Applicant Guidebook is very clear: "If the Board receives GAC Advice on New gTLDs stating that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved. If the Board does not act in accordance with this type of advice, it must provide rationale for doing so."

Stay the course

So will this advice from governments cause the new gTLD program to be delayed whilst its rules are rewritten for the umpteenth time? Not necessarily. ICANN is definitely learning fast these days. With a new business-oriented CEO to provide guidance on the importance of managing a project of this magnitude with some measure of predictability, the Board itself is showing increasing confidence to stay the course. ICANN Chairman Steve Crocker has said that as far as the ICANN Board is concerned, although the word of governments carries weight, it is not the be all and end all. "We have a carefully constructed multi-stakeholder process," Crocker explained in a video interview recorded at the end of the Beijing meeting. "We want very much to listen to governments, and we also want to make sure there's a balance."

That is reassuring. The Applicant Guidebook makes no mention of plural TLDs. Not one. These are the rules by which applicants have constructed their submissions for a TLD to ICANN. It is on the basis of this guidebook that they have defined their business models and done what ICANN itself was asking them to do: build a viable business and operational plan to operate a TLD.

The rules simply cannot be changed every couple of months. In what world is it OK to ask applicants to follow a process and then, once that process is closed, revisit it time and again and force change on those applicants? Would governments tolerate this in their own business dealings? Would those community members who call for rules revisions on a despairingly regular basis put up with it in their everyday commercial ventures?

So now governments have called upon the ICANN Board to act. But the Board always intended to keep TLD evaluations independent from those with interests in the outcomes. That is why evaluation panels were constituted, instead of getting ICANN Staff to evaluate applicants directly. And that is why we should not attempt to reopen and rearrange decisions of an expert panel basing its analysis on the program's only rulebook, the Applicant Guidebook as it stood when the new gTLD application window closed. After all, parties that disagree with panel outcomes have the objection process to address their concerns.

Singularity or plurality?

And anyway, is there really a case for prohibiting singular and plural TLDs? After all, singulars and plurals have always existed together at the second level and no-one ever took exception to that. Why is the fact that the domains car.com and cars.com are not owned and operated by the same entity less confusing to users than the equivalent singular/plural pair as a TLD? Wouldn't trying to limit the use of singular and plural TLDs amount to attempted content control and free speech limitations?

Isn't this call to limit singular and plural use just a very English-language centric view of the new gTLD world? Is it true that adding or taking away the letter "S" at the end of a string means going from a singular to a plural form in every language, for every alphabet, for every culture? And if not, then how can a level playing field be guaranteed for applicants and users alike if new rules are introduce that prohibit singular/plural use in languages and alphabets that the mostly English-speaking ICANN community understands, but the wider world is not suited to?

Can it really be argued that plurals are confusing, but phonetically similar strings aren't? Aren't we over-reaching if we try to convince anyone that .hotel, .hoteles, and .hoteis belong in the same contention set? And if that's true, why isn't it true for their second-level counterparts, like hotel.info, hoteles.info and hoteis.info?

As I've stated, I have no real preconceived opinion on the matter. So to try and form one, I am more than happy to listen to the people that have spent months, sometimes years, coming up with realistic ideas for new gTLDs. The applicants themselves.

Uniregistry's Frank Shilling thinks that "the GAC (while well-intentioned) has made an extraordinarily short-sighted mistake. For the entire new GTLD exercise to thrive in the very long run, the collective right-of-the-dot namespace simply must allow for the peaceful coexistence of singulars and plurals. There are words with dual meaning that will be affected, this will significantly and unnecessarily hem in future spectrum. Consumers expect singulars and plurals to peacefully coexist. If we want to move to a naming spectrum with tens of thousands of new G's in the future — a namespace which is easy, intuitive and useful for people to navigate, there is just no long term good that can come from setting such a poor precedent today."

Donuts, another new gTLD applicant, argues that the Applicant Guidebook sets an appropriately high threshold for string confusion as it is drafted now. Section 22112 of the Guidebook defines a standard for string confusion as being (text highlighted by me) "where a string so nearly resembles another visually that it is likely to deceive or cause confusion. For the likelihood of confusion to exist, it must be probable, not merely possible that confusion will arise in the mind of the average, reasonable Internet user. Mere association, in the sense that the string brings another string to mind, is insufficient to find a likelihood of confusion."

Donuts suggest that string similarity exists in today's namespace without leading to user confusion. ".BIZ and .BZ, or .COM and .CO or .CM, for example," says Donuts. "At first glance, association of these strings might suggest similarity, but reporting or evidence that they are visually or meaningfully similar clearly does not exist, and the standard of confusion probability is not met. By these examples, it is clearly difficult to confuse the average, reasonable Internet user. Broader Internet usage, growth in name space, and specificity in identity and expression are the foundation of the new gTLD program, and are suitable priorities for the community. In the interest of consumer choice and competition, multiple strings and the variety and opportunity they present to users should prevail over all but the near certainty of actual confusion."

Obviously, these quotes from applicants will have critics dismissing them just because they are from applicants. I can hear now saying "well they would say that, they want new gTLDs to come out asap." Right! And what's wrong with that? Why is it out of place for the people we, the community, have drawn into this through the policy development we approved, to want to get to the end point in a stable and predictable manner after they have invested so much time, effort and resources into this?

A professional ICANN is a strong ICANN

As usual with these calls for last-minute rule changes, we see the recurring argument that the rest of the world is watching ICANN and waiting for it to trip up and mess this up. And as usual, if we listen to those making this argument, the "this" is such a crucial issue that if it is ignored, the world as we know it may very well end. Really? Aren't ICANN critics more likely to be impressed by the organisation displaying an ability to properly project manage and get to the finish line? After having started a process which has brought in over $350 million in application fees, introduced the ICANN ecosystem to global entities, major companies and international organisations who are used to seeing rules being followed, after having shone the outside world's spotlight on itself like never before, wouldn't that be a real sign that ICANN deserves to be overseeing the Internet's namespace?

At this stage, with only a few weeks to go until ICANN declares itself in a position to approve the first TLD delegations, I contend that the real danger to the organisation is lack of predictability in the process being imposed by artificial limitations to the program's scope and rules.

Written by Stéphane Van Gelder, Chairman, STEPHANE VAN GELDER CONSULTING

As Lafeber describes, criticism of ICANN's gTLD program and subsequent TMCH database is mounting. Skeptics have noted that given the significant cost of registering a gTLD — the application fee is $185,000 and subsequent annual fees are $25,000 — the program appears to be solely a cash cow, without adding much value to Internet users. In fact, Esther Dyson, ICANN's founding chairwoman, was quoted in August 2011 (during the nascent stages of the gTLD program's development) as saying:

"Handling the profusion of names and TLDs is a relatively simple problem for a computer, even though it will require extra work to redirect hundreds of new names (when someone types them in) back to the same old Web site. It will also create lots of work for lawyers, marketers of search-engine optimization, registries, and registrars. All of this will create jobs, but little extra value."

While the gTLD program lacks intrinsic value-added, and may in fact have anticompetitive effects given its exorbitant fees, I think there may be something more nefarious at play here. Essentially, ICANN has positioned itself as the Corleone family of the Internet space, making an offer no one can refuse. ICANN created a market in which individuals can launch new gTLDs, even using another's trademark-protected brand as their domain extension. Subsequently — and here's where the mafia-like "protection" arises — it has "offered" trademark owners the ability to head off infringements by either buying their gTLDs or receiving notification if an infringing gTLD is registered by another party.

Programs to monitor the use of one's brand in a domain name have long existed. The TMCH charges subscribers $95 to $150 annually to be notified of the registration of infringing gTLDs. Instead of extorting fees to be the watchdog for illegal activity ICANN itself facilitates, it could more ethically operate its gTLD program by mining publicly available government databases and instituting a freeze on registration of questionable domain names. Moreover, it could even provide a valuable service by offering a clearly defined resolution process for trademark disputes.

The gTLD-TMCH pairing is the proverbial horse's head in a trademark owner's bed.

Written by James Delaney, Chief Operating Officer at DMi Partners

We recently analyzed the reputation of a country's Internet (IPv4) addresses by examining the number of blacklisted IPv4 addresses that geolocate to a given country. We compared this indicator with two qualitative measures of each country's governance. We hypothesized that countries with more transparent, democratic governmental institutions would harbor a smaller fraction of misbehaving (blacklisted) hosts. The available data confirms this hypothesis. A similar correlation exists between perceived corruption and fraction of blacklisted IP addresses.

CAIDA's Country IP Reputation Graphs (Click to Enlarge)
See the interactive graph and analysis on the CAIDA website

For more details of data sources and analysis, see:
http://www.caida.org/research/policy/country-level-ip-reputation/

Written by kc claffy, Director, CAIDA and Adjunct Professor, UC, San Diego

"The Internet's unique value is openness. The experimentation by certain European access providers with blocking, filtering and throttling of services creates borders in an online world whose key value is the absence of borders." explains Joe McNamee, Executive Director of EDRi. "This reckless experimentation will continue unless the European Commission puts a stop to it."

http://www.internetsociety.org/events/inet-denver/inet-denver-livestream

Sessions include:

• IPv4 Exhaustion Update
• IPv4 Exhaustion at ARIN
• Address Policy Workshop
• Evaluation of Current Transfer Market
• TCO of IPv6
• Internet Society Initiatives and How To Get Involved

The list of speakers includes people from ARIN, CableLabs, Internet Society, Time Warner Cable, Google and more.

It sounds like a great event and I'm looking forward to watching it remotely.  It will be recorded so that you will be able to watch it later if you cannot view it live.

Written by Dan York, Author and Speaker on Internet technologies