If anyone doubted our recurring warnings that ICANN’s GAC is evolving into an intergovernmental organization, they should have come to Beijing for ICANN 46. A new GAC communique was released in the middle of the public comment forum. As people downloaded and read it, they discovered that GAC’s “advice” is really a complete redesign of the underlying policies for approving new top level domains. The line at the microphone suddenly got longer.
The GAC has interpreted the task of providing advice on public policy as a mandate to start from scratch and revisit every policy issue related to the use of domain names that has been debated since 1999. Six years of work by the Generic Names Supporting Organization, which is supposed to develop policy, has been ignored. The GAC has instead issued its own preferences regarding specific applications. For example, it does not like .WINE or .VIN. It has also created a set of categories in which to place various applications, and has told the Board that it must impose specific requirements or establish specific acceptability criteria for domains in each of those categories. Dozens of specific applications are classified into the categories but, in a revealing demonstration of their lack of confidence in the objectivity of the typology, it calls these lists “non-exhaustive,” meaning that it can throw other names into them at any time it pleases.
Of course, none of these requirements were known to applicants at the time they spent hundreds of thousands of dollars preparing their applications. They had the apparently naïve idea that applications should follow the Applicant Guidebook, the long, detailed and already burdensome set of rules developed by the GNSO, staff and Board over six years.
The GAC is trying to saddle registries and registrars with a detailed list of law enforcement and policing functions, many related to Internet content. For example, “Registry operators will periodically conduct a technical analysis to assess whether domains in its gTLD are being used to perpetrate security threats, such as pharming, phishing, malware, and botnets.” If these threats are found GAC wants ICANN to require registries to suspend domains outside of normal legal due process. In effect, as Becky Burr pointed out in her public forum comments, GAC wants ICANN to use the domain name system to implement global legal and regulatory regimes that governments can scarcely implement in their own jurisdictions. They pertain not just to naming and cybersecurity, but also to copyright, trademark, financial regulation, cyber-bullying, gambling, professional credentials and – yes, really – organic farming.
The Communique’s reboot of TLD policy, if not rejected by the Board, would delay implementation of the long-delayed new TLD program for another year….or two. The advice is often self-contradictory; on the one hand GAC insists that generic terms be kept open for any registrant, on the other it wants to turns hundreds of applicants into restricted domains that require registries to carefully vet who can register in them.
A source inside the meetings said that the closed GAC deliberations were just like UN meetings, carrying on until late in the night as members made long-winded speeches and digressed into political topics. GAC members are now bickering among themselves regarding whether sessions should be open or closed.
Responding to political pressure from a group of Latin American governments, the GAC has declared opposition to applications for .PATAGONIA and .AMAZON by the respective brand holders, despite the fact that both hold legal trademarks for those terms. If you’re GAC, you don’t need law.
The GAC’s growing self-importance and isolation from the broader community of ICANN stakeholders is threatening to spiral out of control. The only way to stop it now is for the board to get a backbone and reject most of the GAC’s advice. It will provide what we in the educational profession call a “teachable moment” in which they can stand up for predictable due process. They will have support from the community. No less than 8 speakers in the public forum criticized the GAC communique. No one supported the GAC, unless you count a half-hearted plea from board member Mike Silber to recognize how hard the GAC had worked. This drew tepid applause from a smattering of the audience.