The Nairobi Board resolutions: painful to read

The ICANN board issued a fairly large number of resolutions at the conclusion of its <?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />Nairobi meeting. give it an A for effort. But on substance? Give them an F. On the .xxx issue, the Board chose to ignore its independent review panel and refused to rectify what was officially determined to be unfair and discriminatory treatment. On the vertical integration issue, it issued a needlessly biased and poorly worded resolution that was an attempt to clarify things but probably did the opposite. True to form, the board devoted most of its attention to bending over backwards to accommodate trademark interests at the expense of market diversity, as most of the resolutions passed refer to various aspects of how to protect trademark owners from the horrifying prospect of letting people register names under new TLDs. And in response to complaints that it had set the fee bar for new gTLDs too high, the Board issued a vague instruction to its Advisory Committees and Supporting Organizations “develop a sustainable approach to providing support to applicants requiring assistance in applying for and operating new gTLDs.” A nice gesture, but in truth only a gesture that gives us an opportunity to spend $3 million in person-hours and other subsidies in response to artificially created registration fee of $185,000 that ICANN could, with a stroke of the staff's pen, easily cut in half.  

Let’s look in more detail at the .xxx and vertical integration issues.

The Board resolution did not, of course, say “we are ignoring our independent review panel and refuse to be held accountable for the mistakes we made 4 years ago.” But that is what it actually did. The dismissal of the IRP decision was thinly covered up by reference to “the absence of a process for approving an sTLD six years following the receipt of the original application.” Earth to Board: you don’t need another “process” – this is a dispute about your old one. ICM Registry went through your defined process five years ago, and the process was completed. What needs to happen now is for you to undo the damage caused by your decision to renege on your original process. The claim that the Board wishes to create a “transparent set of process options which can be published for public comment” is both a cynical denial of ICM’s right to have the mistake ICANN made corrected, and a stalling tactic that will enmesh it – and the rest of us – in months of additional debate about the merits of a .xxx domain. To create a new process for reviewing and approving the domain is to reject the finding of the IRP that the .xxx application met its stated criteria in the sTLD round and its finding that ICANN’s refusal to complete its process was unfair and discriminatory. Looks like ICANN hasn’t had its fill of litigation yet. And, most disappointingly, by forcing the issue to be resolved in U.S. courts it is proving to the world that it lacks the institutional capacity and autonomy to resolve its own issues.

On the vertical integration issue, the board resolved that “within the context of the new gTLD process, there will be strict separation of entities offering registry services and those acting as registrars. No co-ownership will be allowed.” It also resolved that “if a policy becomes available from the GNSO, and approved by the Board prior to the launch of the new gTLD program, that policy will be considered by the Board for adoption as part of the new gTLD Program.” It would be good if the Board had merely affirmed that the status quo regarding registry-registrar separation would remain in place until the GNSO developed a new policy. But the board went far beyond that. It couldn't resist inserting its (uninformed) opinion about how cross-ownership raises “consumer data protection issues' – which is merely a repetition of what registry industry lobbyists are telling them and not a conclusion that any open policy process has supported. From the first resolution it is clear that the board is still fundamentally confused about the whole issue. Cross-ownership is not vertical integration as long as registry-registrar separation are in place. The flat statement that “no co-ownership will be allowed” confuses matters because cross ownership of registries and registrars is already allowed to some degree. So is this a change of policy, by fiat?  Obviously, the GNSO needs to step in here and establish a coherent policy. But the Board resolution contained an eye-opening statement that the Board will merely “consider” a policy developed by the GNSO. The whole point of ICANN’s vaunted “bottom up policy development process” is that the policies that its community works so hard to develop are supposed to be accepted and implemented by the Board.

The only glimmer of reasonableness in these resolutions is that the board finally seems to be stepping back from the rigid and pointless idea its staff and technical acolytes got some time ago that an IDN TLD had to be 3 characters in length. Even there, it took almost two year and the board's propensity for over-regulation remains: it proposes “specific requirements for when 2-character gTLDs can be delegated, and deferred the notion of 1-character gTLDs pending policy issues.”