by Milton Mueller on Thu 15 Mar 2012 01:11 PM EDT

In a dramatic confrontation that generated two hours of debate, ICANN’s Noncommercial Stakeholder Group successfully deferred a motion to give the International Red Cross (RC) and International Olympic Committee (IOC) special privileges in the new gTLD space.

The NCSG chose to make a stand on process issues. It issued a statement arguing that a major, complicated change in policy was being rammed through the GNSO (ICANN’s domain name policy development institution) only a day after the final proposal had been distributed, and more than a week before the public comment period closed. The Affirmation of Commitments, ICANN’s constitutional agreement with the US government, requires ICANN to employ “responsive consultation procedures that provide detailed explanations of the basis for decisions, including how comments have influenced the development of policy.” All of that would have been jettisoned if the Council had voted to approve the motion. “How,” the NCSG statement asked, “can ICANN depend on public comments when it makes a decision before they have all been received? The council should not hold a vote on something as important as the implicit creation of a new form of reserved names, especially one that singles out some international organisations for special consideration…, without full comment.”

The NCSG chose its target well. The IOC/RC proposal was probably the most egregious example yet of how ICANN’s supposedly open, multi-stakeholder policy making process can be circumvented by a few powerful players on the Governmental Advisory Committee (GAC) and last-minute lobbying pushes on the GAC and the ICANN board by special interests. The proposal to offer unique privileges to only two international organizations was a product of heavy lobbying pressure on the UK and US GAC representatives. The US, which dominates the GAC, pushed through a “consensus statement” calling for special protections – and then demanded that the ICANN Board abandon its processes to implement those top-down demands. The Board asked the GNSO to implement those requests, and the GNSO put together a drafting team led by two registry operators who wanted to appease the GAC. The content of the hastily assembled policy shifted all throughout the weekend of the ICANN meeting, as the Red Cross first demanded that its protections extend to hundreds of languages, and then withdrew that request.

Indeed, while it was clear that the proposal raised many questions about discriminatory protection, ill-defined scope, slippery slopes and procedural circumventions, the business interests who dominate the GNSO were willing to ignore that in order to move on with the new gTLD program and avoid enraging an already irritated US GAC representative. The registrar stakeholder group, for example, issued a statement openly acknowledging that the IOC/RC proposal circumvented GNSO processes, but with glum cynicism said that they would vote for it anyway.

In fact, even the governments assembled in the GAC raised serious questions about the proposal. The European Commission openly stated in the public meeting that it had not been paying attention when the GAC recommendation passed. Portugal and Brazil indicated that they did not support limiting protection to two organizations. The OECD, a GAC observer organization, filed comments noting that other international organizations had similar claims. Others feared that a Pandora’s box would be opened, in which literally thousands of other organizations would be encouraged to claim similar protections at the top and second levels. There were even concerns that demands by copyright interests for similar special protections in top-level domains related to entertainment content would surface.

While the debate over the proposal was framed as offering “protection” to the valuable and well-known marks of the Red Cross agencies and the Olympics, the truth was quite different. The IOC and Red Cross names were already protected in several languages under the new gTLD program’s implementation. Put simply, no one could register them. What the IOC and RC actually wanted was a special exception to that exclusion, one that would have allowed the IOC and Red Cross themselves to register the reserved names, or to license registrations to organizations they approved. This would open up money-making opportunities for those two organizations – but not any others.

In short, the IOC/RC proposal was an inexcusably bad piece of last-second policy making, sloppy and discriminatory and likely to cause more problems than it solved. Yet the GNSO Council, in its rush to appease the GAC, would have passed it had the NCSG not moved to defer.

Deferral motions require the support of only one Councilor. It was only Rafik Dammak, a Tunisian Council representative of the NCSG, who had the courage to make the motion. In the past, deferral motions have been respected by the Council. But the Business, IPC and Registry constituencies were so enraged by Dammak’s motion that they urged the Chair to break Council precedent and override the deferral. Jeff Neuman, the representative of Neustar Registry, issued lurid claims that the entire GNSO would being destroyed by the deferral. Indeed, this type of reaction had been anticipated by the NCSG Councilors, and many of them were unwilling to use the deferral for that reason. The US GAC representative was also reported to be angry. In a characteristically vindictive reaction, she is rumored to be proposing to “review” the existence of the NCSG – a good example of how governments will tolerate civil society representation in policy making only when civil society doesn’t get in the way of what governments want.

GNSO rules require 21 days of public comments (which would take us to March 23) and 21 more days of response and revision (which would take us to April 14, beyond the implementation date of the new gTLD program). Thus, had the NCSG been willing to play real hardball, the deferral could have killed the whole proposal. However, in a demonstration of good faith, the NCSG Councilors proposed that the second (reply and revision) part of the comment period be shortened to a few days, giving the drafting team a chance to revise their proposal after the first round of public comments are received and hold a special Council meeting March 28 to approve or disapprove of the proposal.

We predict that as the delay plays out, the NCSG action will look better and better to the wider community. The domain name industry should be breathing a sigh of relief because someone else had the guts to stand up for what is right. New comments will come in, problems and contradictions in the hastily-assembled policy will be identified, and more accurate assessments of how much support it has can be made. The NCSG may have saved ICANN’s board and GNSO from themselves.

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