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Minutes | New gTLD Program Committee 2 July 2013
Note: On 10 April 2012, the Board established the New gTLD Program Committee, comprised of all voting members of the Board that are not conflicted with respect to the New gTLD Program. The Committee was granted all of the powers of the Board (subject to the limitations set forth by law, the Articles of incorporation, Bylaws or ICANN's Conflicts of Interest Policy) to exercise Board-level authority for any and all issues that may arise relating to the New gTLD Program. The full scope of the Committee's authority is set forth in its charter at http://www.icann.org/en/groups/board/new-gTLD.
A Regular Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held telephonically on 02 July 2013 at 13:00 UTC.
Committee Chairman Cherine Chalaby promptly called the meeting to order.
In addition to the Chair the following Directors participated in all or part of the meeting: Fadi Chehadé (President and CEO, ICANN), Chris Disspain, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Mike Silber, and Judith Vazquez.
Bill Graham, Olga Madruga-Forti and Kuo-Wei Wu sent apologies.
Thomas Narten (IETF Liaison) and Francisco da Silva (TLG Liaison) were in attendance as non-voting liaisons to the Committee. Heather Dryden and Jonne Soininen were in attendance as observers to the Committee. Bertrand de La Chapelle was in attendance as an invited (non-voting) observer for Item 1 on the Main Agenda.
ICANN Staff in attendance for all or part of the meeting: Akram Atallah, President, Generic Domains Division; John Jeffrey, General Counsel and Secretary; Megan Bishop; Michelle Bright; Samantha Eisner; Allen Grogan; Dan Halloran; Jamie Hedlund; Marika Konings; Cyrus Namazi; Erika Randall; Amy Stathos; and Christine Willett.
This is a preliminary report the Meeting of the New gTLD Program Committee, which took place on 02 July 2013.
- Main Agenda
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Main Agenda
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Revised BGC Recommendation on Reconsideration Request 13-3
The Chair provided an overview of the meeting agenda, and introduced the first item concerning the Board Governance Committee recommendation on Reconsideration Request 13-3. Amy Stathos provided an overview of the Request and the grounds stated by the Non-Commercial Stakeholders Group (NCSG) in the Request, in particular the NCSG's assertion that staff developed policy when including the Trademark+50 provision (for names that had previously been determined to have been abusively registered or used) in the Trademark Clearinghouse. The NCSG also asserted that there was a Bylaws-mandated requirement for consultation with the GNSO prior to implementing the Trademark+50 provision in the Trademark Clearinghouse, and that consultation did not occur.
Amy noted that the BGC spent significant time discussing Reconsideration Request 13-3 and reported that the BGC's final recommendation to the Committee is that no further action is warranted with respect to the Request. Amy highlighted that the BGC recognized broader issues identified in the Request about the ongoing consultation within the community about what should be considered implementation and what should be considered policy.
Ray Plzak asked Amy if the BGC spent any time discussing whether something should be a policy, or the other issues raised in the request, including previously-abusive names. Amy explained that the main focus of the BGC discussion was on the grounds for reconsideration, which is whether or not staff had violated (or taken any action inconsistent with) any ICANN policy or process in implementing the Trademark+50 provision.
Bertrand de La Chapelle made a presentation to the Committee to express his reasons for opposing the BGC's recommendation on the Request. Bertrand provided a statement on Reconsideration Request 13-3 for consideration by the Committee, which is available for review at <http://www.icann.org/en/groups/board/governance/reconsideration/de-la-chapelle-statement-02jul13-en.pdf> [PDF, 95 KB]. Bertrand also suggested that at a later date, the Board should consider the overarching question about what should be policy.
Bertrand stated his opinion that it was inappropriate for the staff to be the ultimate arbiter of a dispute between itself and the GNSO Council on whether a question is a policy matter. Bertrand noted that in these cases, the matter should come to the Board for a final decision. Bertrand concluded his remarks to the Committee by explaining to the Committee that accepting the reconsideration request would not open a "Pandora's box" of issues; instead, the Committee could adopt a resolution on the substance of the matter by stating that the Trademark+50 addition to the Clearinghouse is an appropriate measure given the balance of rights and responsibilities, and the overall comments from the community.
The President and CEO moved and Judith Vazquez seconded a motion to adopt the BGC's recommendation on Reconsideration Request 13-3. The Committee engaged in a discussion of the motion.
Mike Silber noted that the "Pandora's box" gets into the detail of the matter and not the recommendation at hand. Bertrand clarified that his point was with regard to the high-level issue about whether staff has authority to decide disputes between the staff and the GNSO.
Thomas Narten asked Bertrand to clarify whether he was recommending that the Committee adopt a resolution to move forward with the Trademark+50 approach. Bertrand confirmed his recommendation.
Ray Plzak suggested that the Committee send the BGC a letter to take under consideration the issues Bertrand raised with regard to the policy and the policy process.
Thomas also asked whether subjects not explicitly covered by a policy are automatically deemed not to be covered by a policy. Amy responded that in the case at hand, there were 19 GNSO policy recommendations that the Board approved and which served as the basis for the New gTLD Program, and the BGC did not identify any action taken in contradiction with those policies, nor did it identify any other existing policy that was contradicted as a result of the addition of the Trademark+50 provision into the Trademark Clearinghouse.
George Sadowsky stated his opinion about staff taking action on a policy matter where the GNSO felt it had policy authority, and indicated that he would be voting against the resolution.
Ray noted that the only policy authority that the GNSO has is to bring a policy recommendation forward through the policy development process for Board approval.
Bertrand informed the Committee that if it takes an interpretation that "policy" in Article 4, Section 2.2 of the Bylaws is only policy development process-generated policies, then, in his opinion, the Committee would unduly restrict the accountability of staff.
Mike noted his understanding for Bertrand's position in the sense that, currently, there is not documented process to help guide staff action or process where there is an absence of policy, where policy is unclear, or where policy is underway and action needs to be taken. Mike suggested that it would be worthwhile for the BGC to begin looking at this issue, and suggested a conservative approach. Ray concurred.
The President and CEO informed the Committee of all of the consultation hours that went into consulting with the community on this matter, and stressed that the decision was the result of much discussion in the community. The President and CEO concurred with Mike and Bertrand about the larger concern of how these matters are decided when there is an absence of policy or the policy is not clear. The President and CEO urged the Committee not to start a new review effort for this issue, and suggested that that Committee rely on the ongoing reviews to inform this issue.
The Chair read aloud a note from Jonathan Robinson thanking the BGC for the changes made to the BGC's recommendation in response to comments from him and Jeff Neuman.
Ray invited the Chair, Bertrand and Mike to join in preparing a letter to the BGC to address the policy process concerns raised by Bertrand, and to consider documenting a process to help guide staff action where there is an absence of policy or where policy is unclear.
The Committee then took the following action:
Whereas, the Noncommercial Users Stakeholders Group's ("NCSG") Reconsideration Request, Request 13-3, sought reconsideration of the staff action of 20 March 2013 regarding "Trademark Claims Protections for Previously Abused Names".
Whereas, the BGC considered the issues raised in Reconsideration Request 13-3, as well as the issues brought to and discussed by the GNSO Council regarding some of the language in the BGC's Recommendation.
Whereas, the BGC revoked its initial recommendation, and issued a Revised BGC Recommendation on Reconsideration Request 13-3, which ultimately recommended that no further action was warranted with respect to Request 13-3.
Resolved (2013.07.02.NG01), the New gTLD Program Committee adopts the Revised BGC Recommendation on Reconsideration Request 13-3 <http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-ncsg-25jun13-en.pdf> [PDF, 92 KB].
Resolved (2013.07.02.NG02), the New gTLD Program Committee directs ICANN's President and CEO to assure that the issues raised within Request 13-3 are brought to the ongoing community discussion on policy versus implementation within ICANN.
Eight members of the Committee voted in favor of Resolutions 2013.07.02.NG01 – 2013.07.02.NG02. George Sadowsky voted against the Resolutions. Bill Graham, Olga Madruga-Forti and Kuo-Wei Wu were not available to vote on the Resolutions. The Resolutions carried.
Rationale for Resolutions 2013.07.02.NG01 – 2013.07.02.NG02
ICANN's Bylaws call for the Board Governance Committee to evaluate and make recommendations to the Board with respect to Reconsideration Requests. See Article IV, section 3 of the Bylaws. The New gTLD Program Committee ("NGPC"), bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the revised BGC Recommendation on Reconsideration Request 13-3 and finds the analysis sound.
Having a Reconsideration process whereby the BGC reviews and makes a recommendation to the Board/New gTLD Program Committee for approval positively affects ICANN's transparency and accountability. It provides an avenue for the community to ensure that staff and the Board are acting in accordance with ICANN's policies, Bylaws and Articles of Incorporation.
This Request asserted that a staff action allowing up to 50 names that were previously determined registered or used abusively to be included in verified trademark records in the Clearinghouse created policy or was in contradiction of existing policy or process. The BGC considered the specific issue raised in the Request, and determined that the staff action here was implementation of existing policy, namely Recommendation 3 of the GNSO Council's policy recommendations on the introduction of new gTLDs. (See ICANN Generic Names Supporting Organization Final Report Introduction of New Generic Top-Level Domains, at http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm, adopted by the Board at http://www.icann.org/en/groups/board/documents/resolutions-26jun08-en.htm.) The BGC further determined that there were no other policies or procedures that were alleged to be violated by this staff action.
Upon making its determination, the BGC issued a Recommendation to the NGPC for consideration. Before the NGPC took up the matter, one GNSO Councilor raised some concerns over some of the language in BGC's Recommendation. The GNSO Council held a lengthy discussion regarding the BGC's Recommendation and asked that the BGC reconsider some of the language in the Recommendation, although not the ultimate conclusion. The BGC carefully considered the GNSO Council's request and stated concerns, and ultimately determined to revise its Recommendation. In doing so, the BGC properly noted that the Recommendation should not be seen as against the ongoing, community-wide discussion about policy and implementation. The BGC also noted that its revised Recommendation should not be construed as discounting the importance of consulting with community members. Community consultation is at the heart of the multistakeholder model, and is critical whether the community is acting as a policy development body or during the implementation of policy.
Request 13-3 demonstrates the import of the ongoing work within the ICANN community regarding issues of policy versus implementation, and the need to have clear definitions of processes and terms used when seeking community guidance and input. The Committee recognizes that the GNSO Council continues to address some of these issues, and agrees with the BGC that it is advisable to pay close attention to the policy/implementation debate, and to make sure that the issues raised within this Request be part of that community work.
Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
After the completion of the vote, Bertrand excused himself for the remainder of the meeting.
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Initial Protection for IGO Identifiers
The Committee continued its previous discussions about adopting temporary protections for IGO names and acronyms, pending its dialogue with the GAC on the implementation issues and scope of the protections. Chris Disspain gave the Committee an overview of the proposed resolution, and noted that members of the Committee would have a call with representatives of IGOs and some members of the GAC. Chris also indicated that this issue would be on the NGPC-GAC agenda at the Durban meeting.
Thomas Narten asked a procedural question about the timing of adopting the resolution and whether the New gTLD Registry Agreement must be adopted prior to extending temporary protections to IGO names and acronyms. Chris confirmed that adopting the resolution, similar to the other resolutions adopted to address the GAC advice, to some extent only becomes relevant once the registry agreement is approved.
Chris Disspain moved, and George Sadowsky seconded the motion to approve the proposed resolutions.
The Committee then took the following action:
Whereas, the GAC met during the ICANN 46 meeting in Beijing and issued a Communiqué on 11 April 2013 ("Beijing Communiqué");
Whereas, the Beijing Communiqué reiterated the GAC's previous advice to the Board that "appropriate preventative initial protection for the IGO names and acronyms on the provided list be in place before any new gTLDs would launch" (the "IGO GAC Advice"). The IGO GAC Advice is identified in the GAC Register of Advice as 2013-04-11-IGO;
Whereas, in response to a number of issues raised by the Board, the GAC noted in the Beijing Communiqué that it is "mindful of outstanding implementation issues" and that it is committed to "actively working with IGOs, the Board, and ICANN Staff to find a workable and timely way forward";
Whereas, the NGPC met on 8 and 18 May and 4, 11 and 18 June 2013 to consider a plan for responding to the advice on the New gTLD Program, including the IGO GAC Advice;
Whereas, in a 6 June 2013 response letter to the GAC on the IGO GAC Advice, the ICANN Board Chairman proposed that a small number of NGPC members and ICANN staff begin a dialogue with the GAC on these issues http://www.icann.org/en/news/correspondence/crocker-to-dryden-2-06jun13-en;
Whereas, the NGPC met on 25 June 2013 to further discuss and consider its plan for responding the GAC's advice in the Beijing Communiqué on the IGO GAC Advice;
Whereas, the final draft of the New gTLD Registry Agreement posted for public comment on 29 April 2013 <http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm> includes IGO protections, but does not yet specify the names and acronyms to be protected;
Whereas, the NGPC is undertaking this action pursuant to the authority granted to it by the Board on 10 April 2012, to exercise the ICANN Board's authority for any and all issues that may arise relating to the New gTLD Program.
Resolved (2013.07.02.NG03), the NGPC confirms that appropriate preventative initial protection for the IGO identifiers will continue to be provided as presented in the proposed New gTLD Registry Agreement posted for public comment on 29 April 2013 <http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm> while the GAC, NGPC, ICANN Staff and community continue to actively work through outstanding implementation issues.
Resolved (2013.07.02.NG04), the NGPC determines that pursuant to Specification 5 in the proposed New gTLD Registry Agreement posted for public comment on 29 April 2013 <http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm>, registry operators will implement temporary protections for the IGO names and acronyms on the "IGO List dated 22/03/2013" attached to this Resolution as Annex 1 [PDF, 541 KB] until the first meeting of the NGPC following the ICANN 47 Meeting in Durban.
Resolved (2013.07.02.NG05), the NGPC will dialogue with the GAC prior to its first meeting following the ICANN 47 meeting in Durban to work through outstanding implementation issues concerning protections for IGO names and acronyms.
Resolved (2013.07.02.NG06), if the NGPC and GAC do not reach an agreement on outstanding implementation issues for protecting IGO names and acronyms by the first meeting of the NGPC following the ICANN 47 meeting in Durban, and subject to any matters that arise during the discussions, the NGPC determines that registry operators will be required to protect only the IGO names identified on the GAC's "IGO List dated 22/03/2013" attached to this Resolution as Annex 1 [PDF, 541 KB].
All members of the Committee in attendance voted in favor of Resolutions 2013.07.02.NG03 – 2013.07.02.NG06. Bill Graham, Olga Madruga-Forti and Kuo-Wei Wu were not available to vote on the Resolutions. The Resolutions carried.
Rationale for Resolutions 2013.07.02.NG03 – 2013.07.02.NG06
Why the NGPC is addressing the issue?
Article XI, Section 2.1 of the ICANN Bylaws http://www.icann.org/en/about/governance/bylaws#XI permits the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." The GAC issued advice to the Board on the New gTLD Program through its Beijing Communiqué dated 11 April 2013. The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. The Board and the GAC will then try in good faith to find a mutually acceptable solution. If no solution can be found, the Board will state in its final decision why the GAC advice was not followed.
What is the proposal being considered?
In the Beijing Communiqué, the GAC reiterated previous advice that "appropriate preventative initial protection for the IGO names and acronyms on the provided list be in place before any new gTLDs would launch." The NGPC is being asked to consider accepting this advice, while being mindful of the outstanding implementation issues. This advice is identified in the GAC Register of Advice as 2013-04-11-IGO.
The proposed final draft of the New gTLD Registry Agreement includes protections for IGO but does not yet specify the names and acronyms to be protected. The current draft of the New gTLD Registry Agreement provides the following protections in Specification 5, Section 6:
As instructed from time to time by ICANN, Registry Operator will implement the protections mechanism determined by the ICANN Board of Directors relating to the protection of identifiers for Intergovernmental Organizations. Any such protected identifiers for Intergovernmental Organizations may not be activated in the DNS, and may not be released for registration to any person or entity other than Registry Operator. Upon conclusion of Registry Operator's designation as operator of the registry for the TLD, all such protected identifiers shall be transferred as specified by ICANN….
To address the GAC advice regarding IGO names and acronyms, the NGPC is considering providing temporary protections for the IGO names and acronyms previously identified by the GAC on its "IGO List dated 22/03/2013," which is attached as Annex 1 [PDF, 541 KB] until a date certain, so that the GAC and the NGPC will have time to work out outstanding implementation issues, as noted in the Beijing Communiqué. The NGPC proposes the temporary protections to remain in place until the first meeting of the NGPC following the ICANN Meeting in Durban, South Africa. If the NGPC and the GAC do not reach agreement on the issues, and subject to any matters that arise during the discussions, the NGPC would require registry operators only to protect the names, but not the acronyms, identified on the GAC's IGO List dated 22/03/2013. The proposed Resolution would provide temporary protections for IGOs while respecting the ongoing work on implementation issues.
Which stakeholders or others were consulted?
On 29 April 2013, ICANN initiated a public comment forum to solicit input on the proposed final draft of the New gTLD Registry Agreement <http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm>. The public comment forum closed on 11 June 2013. The NGPC has considered the community comments on the New gTLD Registry Agreement in formulating its response to the IGO GAC Advice as it relates to the New gTLD Registry Agreement <http://forum.icann.org/lists/comments-base-agreement-29apr13/>.
Additionally, on 14 June 2013, the GNSO Policy Development Process Working Group tasked with addressing the issue of protecting the identifiers of certain IGOs and International Non-Governmental Organizations ("INGOs") in all gTLDs published its Initial Report for public comment. The public comment period is scheduled to close 7 August 2013. <http://www.icann.org/en/news/public-comment/igo-ingo-initial-14jun13-en.htm> The Issue Report was initiated as a result of a recommendation by the GNSO Drafting Team formed to provide a GNSO Council response to the Board and GAC on the protection of IOC and RCRC names in new gTLDs. After community review, the scope of the Final GNSO Issue Report included an evaluation of whether to protect the names of both IGOs and non-government organizations at the top level and second level in all gTLDs.
What concerns or issues were raised by the community?
ICANN received several responses from the community during the course of the public comment forum on the proposed final draft of the New gTLD Registry Agreement; however, none of the responses specifically relates to the provisions in the New gTLD Registry Agreement to provide protections for IGO identifiers. <http://forum.icann.org/lists/comments-base-agreement-29apr13/>
What significant materials did the NGPC review?
As part of its deliberations, the NGPC reviewed the following significant materials and documents:
- GAC Beijing Communiqué:
http://www.icann.org/en/news/correspondence/gac-to-board-18apr13-en.pdf [PDF, 156 KB] - Public comments in response to the New gTLD Registry Agreement:
http://forum.icann.org/lists/comments-base-agreement-29apr13/ - GNSO PDP Working Group Initial Report on Protection of IGO and INGO Identifiers in all gTLDs: <http://gnso.icann.org/en/issues/igo-ingo-initial-14jun13-en.pdf> [PDF, 609 KB]
What factors did the Board find to be significant?
The Beijing Communiqué generated significant interest from the community and stimulated many comments. The NGPC considered the community comments, the GAC's advice transmitted in the Beijing Communiqué, and the ongoing work of the GNSO PDP Working Group on the Protection of IGO and INGO Identifiers in all gTLDs.
Are there positive or negative community impacts?
The response to the GAC advice as provided in the NGPC's Resolution will assist with resolving the GAC advice in manner that permits the greatest number of new gTLD applications to continue to move forward as soon as possible, while being mindful of the ongoing efforts to work through the outstanding implementation issues.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
There are no foreseen fiscal impacts associated with the adoption of this resolution.
Are there any security, stability or resiliency issues relating to the DNS?
Approval of the proposed resolution will not impact security, stability or resiliency issues relating to the DNS.
Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?
On 29 April 2013, ICANN initiated a public comment forum to solicit input on the proposed final draft of the New gTLD Registry Agreement. The public comment forum closed on 11 June 2013.
On 14 June 2013, the GNSO Policy Development Process Working Group tasked with addressing the issue of protecting the identifiers of certain IGOs and INGOs in all gTLDs published its Initial Report for public comment. The public comment period is scheduled to close 7 August 2013. <http://www.icann.org/en/news/public-comment/igo-ingo-initial-14jun13-en.htm>
- GAC Beijing Communiqué:
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Category 1 Safeguard Advice from GAC
Chris Disspain provided the Committee with an overview of the proposed general approach to respond to the GAC's advice regarding Category 1 Safeguards. Chris noted that the first paragraph of Category 2 Safeguard advice (Category 2.1) actually relates to the Category 1 Safeguards. Because of this, Chris informed that Committee that the Category 2.1 Safeguard advice would be considered in the proposed dialogue with the GAC on Category 1 Safeguards if the Committee adopted the proposed resolutions.
Chris walked through the issues with the Category 1 advice as discussed in the briefing materials, and noted that there are not many issues with Safeguards 1-3, but for consistency, the proposal is that the entire set of Category 1 Safeguards would be discussed with the GAC.
George Sadowsky moved and Judith Vazquez seconded the proposed resolutions.
Chris recommended a revision to the resolutions to make sure it is clear why the Category 2.1 Safeguard advice was being considered with the Category 1 Safeguard advice.
The Committee then took the following action:
Whereas, the GAC met during the ICANN 46 meeting in Beijing and issued a Communiqué on 11 April 2013 ("Beijing Communiqué");
Whereas, the Beijing Communiqué included Category 1 safeguard advice, which is identified in the GAC Register of Advice as 2013-04-11-Safeguards-Categories-1 (the "Category 1 Safeguard Advice");
Whereas, on 23 April 2013, ICANN initiated a public comment forum to solicit the community's input on how the NGPC should address GAC advice regarding safeguards applicable to broad categories of New gTLD strings <http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm>;
Whereas, the NGPC met on 8 and 18 May and 4, 11, 18 and 25 June 2013 to consider a plan for responding to the GAC's advice on the New gTLD Program, including the Category 1 Safeguard Advice;
Whereas, the NGPC met on 2 July 2013 to further discuss and consider its plan for responding the GAC's advice in the Beijing Communiqué on the New gTLD Program;
Whereas, the NGPC has considered the public comments on the Category 1 Safeguard Advice submitted during the public comment forum; and
Whereas, the NGPC is undertaking this action pursuant to the authority granted to it by the Board on 10 April 2012, to exercise the ICANN Board's authority for any and all issues that may arise relating to the New gTLD Program.
Resolved (2013.07.02.NG07), the NGPC agrees to begin a dialogue with the GAC during the ICANN Meeting in Durban to clarify the scope of the requirements provided in the Category 1 Safeguard Advice. (Note: the dialogue with the GAC on Category 1 will also include discussion of GAC's Category 2.1 Safeguard Advice regarding "Restricted Access" since that advice applies to the strings listed under Category 1.)
Resolved (2013.07.02.NG08), the NGPC directs staff to defer moving forward with the contracting process for applicants who have applied for TLD strings listed in the GAC's Category 1 Safeguard Advice, pending a dialogue with the GAC.
All members of the Committee in attendance voted in favor of Resolutions 2013.07.02.NG07 – 2013.07.02.NG08. Bill Graham, Olga Madruga-Forti and Kuo-Wei Wu were not available to vote on the Resolutions. The Resolutions carried.
Rationale for Resolutions 2013.07.02.NG07 – 2013.07.02.NG08
Why the NGPC is addressing the issue?
Article XI, Section 2.1 of the ICANN Bylaws http://www.icann.org/en/about/governance/bylaws#XI permits the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." The GAC issued advice to the Board on the New gTLD Program through its Beijing Communiqué dated 11 April 2013. The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. The Board and the GAC will then try in good faith to find a mutually acceptable solution. If no solution can be found, the Board will state in its final decision why the GAC advice was not followed.
What is the proposal being considered?
The NGPC is being asked to consider its response to the Category 1 Safeguard Advice identified in the GAC Register of Advice as "2013-04-11-Safeguards-Categories-1." The NGPC proposes to begin a dialogue with the GAC in Durban to clarify the scope of the requirements provided in the Category 1 Safeguard Advice.
Which stakeholders or others were consulted?
On 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address GAC advice regarding safeguards applicable to broad categories of new gTLD strings http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm. The public comment forum closed on 4 June 2013. The NGPC has considered the community comments in adopting this Resolution.
What concerns or issues were raised by the community?
ICANN received several responses from the community during the course of the public comment forum on broad categories of GAC safeguard advice. The full set of comments and a summary are available at <http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm>. Of those commenters voicing support, the commenters expressed general agreement with the Category 1 safeguards but some also indicated they require additional clarity. Those expressing opposition suggested that this advice is untimely, ill-conceived, overbroad, and too vague to implement. There was also concern expressed over the inherent lack of fairness and predictable treatment of strings with respect to their placement in the respective sectors/sub-categories of Category 1 and some comments pointed out that the list itself is inconsistent. One commenter expressed that the GAC's advice proposes to "make registrars and registries authoritative licensing validation entities for 200 jurisdictions and an innumerable number of sectors and professions."
One overarching theme from the public comments was the need for additional clarity on the scope and intent of the Category 1 Safeguard Advice. In particular, the community noted the following concerns, which the NGPC considered in adopting this Resolution:
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Categories of Strings
- The list of strings is inconsistent. The categories are broad and undefined. This creates issues of fairness and predictable treatment of new gTLD applications. Specifically:
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The list places many generic words in the same categories as highly regulated industries. For example:
Generic Highly Regulated SAVE BANK CARE LAWYER HEART PHARMACY -
Some of the strings identified apply to a range of individuals, businesses and associations and has segments that are both licensed and unlicensed.
- Example: .ENGINEER could apply to software engineers as well as civil engineers. Also, engineers are regulated in some parts of the world, but not others. In some cases, only specific disciplines require licenses or certificates.
- Example: .LEGAL could apply to lawyers, paralegals, legal research services and publishers, and court reporting and transcribing services often used in the legal profession. Not all of these businesses and associations require licenses.
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It is difficult to determine the relevant industry self-regulation organizations. If the relevant organizations could be identified, it is not feasible to establish working relationships with them all.
- Example: In the United States, some engineering disciplines are regulated at the state level- not the national level. This would require the registry operator for .ENGINEER to form relationships with all 50 state regulators in the United States, in addition to regulators across the world. This could easily amount to hundreds of relationships.
- Example: For .HIPHOP, it is not clear who the relevant regulatory body is for purposes of complying with the Category 1 Safeguards.
- Many of the strings are generic terms which may be sensitive or regulated in a single or a few jurisdictions, but it is not appropriate to limit their use in other jurisdictions.
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There is no principled basis for distinguishing between certain categories and strings. Examples provided by the community include:
GAC Category 1 Includes Does Not Include Children .school .camp Intellectual Property .fashion .style; .clothing Intellectual Property .author .actor Education .degree, .mba, and .university .college; .education; .phd; .training; .science Financial .discount .cheap or .bargain Charity .charity .foundation Financial .financialaid .scholarships Professional Services .lawyer and .doctor .contractors - In some instances the safeguards are related to the content of websites, which is outside the scope of ICANN's remit.
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Comments and other concerns regarding Category 1 Safeguards
A. Safeguards 1 & 2
Safeguard #1: Registry operators will include in its acceptable use policy that registrants comply with all applicable laws, including those that relate to privacy, data collection, consumer protection (including in relation to misleading and deceptive conduct), fair lending, debt collection, organic farming, disclosure of data, and financial disclosures.
Safeguard #2: Registry operators will require registrars at the time of registration to notify registrants of this requirement.
- No concerns. Safeguards 1 and 2 require registrants to comply with applicable law, which all registrants are already required to do.
B. Safeguard #3: 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.
- The safeguard is not specific enough, and thus it is not possible to implement it.
- The registry operator is not the appropriate entity to carry out the safeguard. Instead, it should be handled by appropriate legislative, law enforcement and industry expert bodies.
- It is not clear whether the phrase "reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law and recognized industry standards" is intended to simply require registrants to abide by applicable law (which would be feasible), or if the GAC is intending to create a new standard (reasonable and appropriate…) that registries would be required to develop and enforce;
- It is not clear how "recognized industry standards" would be identified and applied in the context of hundreds of different sectors.
C. Safeguard #4: 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.
- The safeguard raises contract enforcement questions (e.g., how are the relevant regulatory agencies and industry self-regulatory organizations identified; who determines which industry self-regulation organizations bodies are "relevant" to a particular string and which governmental body is the competent regulatory agency).
- Some regulatory bodies or industry self-regulatory bodies may not be responsive to collaboration with registry operators.
D. Safeguard #5: Registrants must be required by the registry operators to notify to them a single point of contact which must be kept up‐to‐date, 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.
- Let's say that an individual wants to register myname.health in order to keep his friends informed of his progress in eating better and exercising more. How would he determine which regulatory agencies and self-regulatory organizations around the globe are relevant?
- Registry operators already have a point of contact for a registrant as a result of the accurate WHOIS data requirements. The advice does not acknowledge the existing standards, such as RFC 2142, that mandates abuse@domain as the standard point of contact for "inappropriate public behavior."
- For unrestricted TLDs, the appropriate way to implement this safeguard would be via registrars and the RAA.
E. Safeguard #s 6-8
Safeguard #6: At the time of registration, the registry operator must verify and validate the registrants' authorisations, charters, licenses and/or other related credentials for participation in that sector.
Category 1 Safeguard #7: 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.
Category 1 Safeguard #8: 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.
- Implementation would change the nature of some new gTLDs from being open to uses that are not regulated into restricted TLDs open only to registrants that can prove their status or credentials.
- Implementation would potentially discriminate against users in developing nations whose governments do not have regulatory bodies or keep databases which a registry/registrar could work with to verify credentials.
- Implementation would potentially discriminate against users in developed nations whose governments have developed different regulatory regimes. For example, in Australia, anyone can claim to be an accountant but anyone holding themselves out as a chartered accountant is subject to regulation.
The complete set of public comments can be reviewed at: http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm.
What significant materials did the NGPC review?
As part of its deliberations, the NGPC reviewed the following significant materials and documents:
- GAC Beijing Communiqué:
http://www.icann.org/en/news/correspondence/gac-to-board-18apr13-en.pdf [PDF, 156 KB]
- Public comments in response to broad categories of GAC safeguard advice: http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm
- Report of Public Comments, New gTLD Board Committee Consideration of GAC Safeguard Advice dated 18 June 2013: http://www.icann.org/en/news/public-comment/report-comments-gac-safeguard-advice-19jun13-en
What factors did the Board find to be significant?
The Beijing Communiqué generated significant interest from the community and stimulated many comments. The NGPC considered the community comments, the GAC's advice transmitted in the Beijing Communiqué, and the procedures established in the AGB for addressing GAC advice to the New gTLD Program.
Are there positive or negative community impacts?
The adoption of the Resolution will assist with moving forward to resolve the GAC advice in a manner that provides clarity to applicants on the scope and implementation of the Category 1 Safeguard Advice.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
There are no foreseen fiscal impacts or ramifications on ICANN associated with the adoption of this resolution.
Are there any security, stability or resiliency issues relating to the DNS?
Approval of the proposed resolution will not impact security, stability or resiliency issues relating to the DNS.
Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?
On 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address GAC advice regarding safeguards applicable to broad categories of new gTLD strings http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm. The public comment forum closed on 4 June 2013.
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Registry Agreement
The Chair presented the agenda topic to the Committee, and Akram Atallah led the Committee's discussion of the revised New gTLD Registry Agreement. Akram highlighted some of the key changes in the agreement as compared to the draft agreement from 29 April 2013. Akram highlighted the changes to the provisions concerning the timing of paying fees, the Public Interest Commitments Specification, and publication of registration data. Akram noted that there were still some ongoing negotiations on the periphery, but staff recommended that the base agreement was in a position to be approved by the Committee.
Akram made note of ongoing negotiations with the brand applicants to possibly modify some of the provisions in the base agreement being considered by the Committee, and informed the Committee that additional changes could be made to the PIC Specification depending on how the Committee and the GAC resolved the Category 1 Safeguard advice.
Akram informed the Committee that staff could create a mechanism to ensure that parties executing the registry agreement, if approved by the Committee, are aware that there may be additional changes to the agreement that they would be required to accept to address the open issues. Akram noted that any material changes to the base agreement being considered by the Committee would be brought back to the Committee for review and approval.
Thomas Narten asked whether the agreement presented to the Committee had been reviewed by other members of the community, given that there were many changes to the agreement. Akram noted that the proposed changes were not materially different from the version posted for public comment in April. Akram also noted that the bulk of the changes are the result of responding to the GAC advice, and the community had been provided an opportunity to comment on the implementation of how ICANN could implement the GAC's safeguard advice in the Beijing Communiqué.
Judith Vazquez expressed concerns about approving the agreement at this point in time, noting that she believed the pulse of the registry community is that changes are being forced on them at the last minute. Cyrus Namazi reiterated that the agreement being considered is substantially similar to what was posted for public comment in April. Cyrus noted that the agreement had been socialized with members of the community, who generally expressed support with moving forward with the agreement at this time. Chris echoed these sentiments of support from the community.
Chris highlighted the fact that if an applicant wanted to sign the registry agreement in the current form proposed for approval, the applicant could proceed, but if the applicant wanted to negotiate points of the agreement, then the applicant would enter into a negotiation process. Chris noted that this process of negotiation could take longer than if the applicant accepted the standard form of agreement.
Chris Disspain moved and Ray Plzak seconded the proposed resolutions. The Committee then took the following action:
Whereas, the new generic Top-Level Domain (New gTLD) Program was developed to increase competition and choice by introducing new gTLDs into the Internet's addressing system;
Whereas, the Applicant Guidebook (AGB) was produced to define the New gTLD Program, and included a draft New gTLD Registry Agreement to be entered into by successful applicants and ICANN before proceeding to delegation;
Whereas, on 5 February 2013, ICANN posted for public comment a proposed "Revised New gTLD Registry Agreement Including Additional Public Interest Commitments Specification," which announced proposed revisions to the agreement in response to developments since the last posting of the AGB in June 2012 and a general review of the contractual needs of the New gTLD Program;
Whereas, on 29 April 2013, ICANN posted for public comment the "Proposed Final New gTLD Registry Agreement," which included certain updates and changes to the New gTLD Registry Agreement in response to community feedback on the version of the New gTLD Registry Agreement posted for public comment on 5 February 2013 and discussions of the agreement at the ICANN 46 meeting in Beijing, China;
Whereas, ICANN and a group selected by the Registry Stakeholder Group, the Registry Negotiating Team, have continued negotiating the proposed terms of the New gTLD Registry Agreement;
Whereas, the GAC met during the ICANN 46 meeting in Beijing and issued advice in a Communiqué on 11 April 2013 ("Beijing Communiqué");
Whereas, on 23 April 2013, ICANN initiated a public comment forum to solicit the community's input on how the NGPC should address GAC advice in the Beijing Communiqué regarding safeguards applicable to broad categories of New gTLD strings <http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm>;
Whereas, the Beijing Communiqué included advice, which if implemented as suggested by the community, in some cases would require revisions to the New gTLD Registry Agreement;
Whereas, on 25 June 2013, the NGPC adopted resolutions to revise the New gTLD Registry Agreement to respond to certain elements of the GAC's safeguard advice in the Beijing Communiqué <http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-25jun13-en.htm#2>;
Whereas, the NGPC has considered all of the comments received from the community from the various public comment forums, and has determined that the revised New gTLD Registry Agreement attached to this Resolution as Annex 1 includes significant improvements in response to the concerns raised by the community; and
Whereas, the NGPC is undertaking this action pursuant to the authority granted to it by the Board on 10 April 2012, to exercise the ICANN Board's authority for any and all issues that may arise relating to the New gTLD Program.
Resolved (2013.07.02.NG09), the NGPC approves the form of the New gTLD Registry Agreement attached to this Resolution as Annex 1 [PDF, 1.91 MB].
Resolved (2013.07.02.NG10), the President and CEO is authorized to take all necessary steps to implement the revised New gTLD Registry Agreement and to move forward with implementation of the New gTLD Program.
All members of the Committee in attendance voted in favor of Resolutions 2013.07.02.NG09 – 2013.07.02.NG10. Bill Graham, Olga Madruga-Forti and Kuo-Wei Wu were not available to vote on the Resolutions. The Resolutions carried.
The President and CEO thanked Cyrus for his work in helping to negotiate the agreement and work with the community to move the process forward. The President and CEO also noted Akram's new role as the president of the Generic Domains Division.
Rationale for Resolutions 2013.07.02.NG09 – 2013.07.02.NG10
Why the NGPC is addressing the issue?
After the NGPC approves the revised terms of the New gTLD Registry Agreement, it will serve as the contract between successful New gTLD Applicants and ICANN, and will govern the rights and obligations of New gTLD registry operators. Successful New gTLD applicants would be expected to enter into this agreement before proceeding to the next phase of delegation of the TLD.
What is the proposal being considered?
The NGPC is considering approving the revised New gTLD Registry Agreement for the New gTLD Program. The New gTLD Registry Agreement reflects months of negotiations on many key issues raised by the community during various public comment forums. In addition, the New gTLD Registry Agreement addresses GAC advice issued on the New gTLD Program, including its most recent advice issued through the Beijing Communiqué.
Some of the changes to the New gTLD Registry Agreement include:
- Publication of Registration Data; Personal Data (Sections 2.5 and 2.18): In response to comments advising that the publication of registration data should be subject to all applicable data protection and regulations (including European Data Protection laws), the latest version of the Registry Agreement (Section 7.13) provides that ICANN and the Working Group (as defined in the Registry Agreement) will mutually cooperate to develop an ICANN procedure for ICANN's review and consideration of alleged conflicts between applicable laws and provisions of the Registry Agreement. In the meantime, ICANN will review and consider alleged conflicts between applicable laws and the provisions of the registry in a manner similar to ICANN's Procedure For Handling WHOIS Conflicts with Privacy Law.
- Public Interest Commitments (Specification 11): Revisions were made to Specification 11 to implement the non-Category 1 safeguard advice in the GAC's Beijing Communiqué (i.e. safeguards applicable to all strings and Category 2 safeguards). The revisions to Specification 11 will incorporate standardized language that would be included in every New gTLD's Specification 11 to address the safeguard advice. Applicant-specific PICs will be included on a case-by-case basis to the extent not superseded by or inconsistent with the standard PICs included to address the GAC's Beijing Communiqué.
- Adjustment to Fees (Section 6.5): Taking the public comment into consideration, the fees section was revised to provide that adjustments to fees will become effective as of the first day of the first calendar quarter following ICANN's notice of the adjustment.
- Referrals to Competition Authorities: In response to the public comments, the agreement was modified to provide that ICANN will, when feasible and appropriate, provider registry operators with advance notice prior to referring arrangement to competition authorities. (Section 2.9)
- Brand gTLDs: ICANN is currently considering alternative provisions for inclusion in the Registry Agreement for .brand and closed registries, and is working with members of the community to identify appropriate alternative provisions. Following this effort, alternative provisions may be included in the Registry Agreement.
The complete Summary of Changes to the New gTLD Registry Agreement is attached to this Resolution as Annex 2 [PDF, 898 KB]. A redline of the current agreement as compared to the prevision version dated 29 April 2013 is attached to this Resolution as Annex 3 [PDF, 1.62 MB]. The Summary and Analysis of Public Comments is available at http://www.icann.org/en/news/public-comment/report-comments-base-agreement-01jul13-en.pdf[PDF, 338 KB]. In adopting this Resolution, the NGPC considered the comments and rationale provided for the changes as presented in the Annexes and the Report of Public Comments.
What significant materials did the NGPC review?
As part of its deliberations, the NGPC reviewed the following significant materials and documents:
- GAC Beijing Communiqué:
http://www.icann.org/en/news/correspondence/gac-to-board-18apr13-en.pdf [PDF, 156 KB] - Public comments in response to broad categories of GAC safeguard advice: http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm
- Report of Public Comments, New gTLD Board Committee Consideration of GAC Safeguard Advice dated 18 June 2013: http://www.icann.org/en/news/public-comment/report-comments-gac-safeguard-advice-19jun13-en
- Public comments on 29 April 2013 version of the New gTLD Registry Agreement: http://www.icann.org/en/news/public-comment/base-agreement-29apr13-en.htm
- New gTLD Program Applicant Guidebook:
http://newgtlds.icann.org/en/applicants/agb
What factors did the NGPC find to be significant?
The NGPC took into consideration the public comments form the community submitted during the various public comment forums on the New gTLD Registry Agreement. In addition, the NGPC considered the advice offered by the GAC in its Beijing Communiqué and the public comments on the safeguard advice in the GAC's Beijing Communiqué. The NGPC also considered the New gTLD Program as established in the Applicant Guidebook.
Are there positive or negative community impacts?
The adoption of the Resolution will permit successful New gTLD applicants to move forward to the contracting phase of the New gTLD Program. This progress will mark another milestone toward the goal of delegating new gTLDs into the root.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
There is no fiscal impact. The fee provisions in the New gTLD Registry Agreement will provide substantial additional resources for ICANN's compliance and registry engagement services in furtherance of ICANN's ongoing coordination, security and stability role. The revised agreement clarifies that registry fees will become due upon delegation, which will help fund expected expenditures to support the roll out of new gTLDs.
Are there any security, stability or resiliency issues relating to the DNS?
Approval of the proposed resolution will not impact security, stability or resiliency issues relating to the DNS. The NGPC previously considered issues of security, stability and resiliency of the DNS issue when adopting the New gTLD Program.
Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?
On 29 April 2013, ICANN initiated a public comment forum to solicit input on the proposed final draft of the New gTLD Registry Agreement. The public comment forum closed on 11 June 2013. On 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address GAC advice regarding safeguards applicable to broad categories of new gTLD strings http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm. The public comment forum closed on 4 June 2013.
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ALAC Statement on TMCH/Variants – Discussion of letter
Thomas Narten provided the Committee with an overview and background of ALAC's letter regarding the trademark clearinghouse and IDN variants, and began a discussion about the Committee's proposed response to the letter. Thomas noted that he would like to bring Board Liaisons Ram Mohan and Suzanne Woolf into this discussion in the future to receive their expert opinion on these topics.
Thomas suggested two possible approaches to address the ALAC letter, including meeting with the ALAC in Durban with the goal of having ALAC, staff and the TMCH providers trying to get on the same page about the issues and what is needed going forward to deal with the issues. Thomas also noted that no changes would be proposed to the program at this time, and that some of the requests (in particular with Chinese IDNs) include things that the Board has previously determined will not be granted in the current round.
Ray Plzak was supportive of responding to the ALAC with a letter indicating the Committee is concerned about the issues raised and will attend to them in due course. Ray cautioned that there were some requests that are covered by existing policy or would be tantamount to the Committee making policy if adopted. Ray suggested that if these matters are covered by a policy, but there is no effective process or procedure to implement it, the Committee should direct staff to create a process and, if necessary, provide it for public comment. If these are matters that are not covered by policy, then the Committee should send a message to the appropriate policy forum suggesting that a particular concern has been raised in the community and that they should work to produce a policy to address it, or invite the ALAC to do the same outreach.
Ray expressed support for meeting with some members of the ALAC in Durban to discuss these issues, outside of the Board's regularly scheduled session, if the Committee was in a position to engage in a discussion. Ray and Thomas agreed that the CEO and President should identify appropriate staff to be present for the proposed meeting.
Ray advised that Committee members should be cautious about expressing opinions that may be construed as comments on of the substance and merit of the matter. Ray also cautioned that if the Committee wants staff to continue being involved in doing work on this issue, the Committee should be careful how it responds to the ALAC so that the Committee does not contradict staff and make their work ineffective.
In response to a question from the Chair, Thomas indicated that he supported having a dialogue with the ALAC to give the Committee a better understanding of what their real concerns are and where the common ground is.
Chris Disspain asked Thomas to clarify his earlier statements about whether changes were needed to the program, and Chris expressed support for making it clear to the ALAC that the Committee is not going to make changes to the program, but takes note of some concerns about variants that the Committee would like to discuss. Ray suggested that the Committee leave open the possibility of making changes to the program to make sure the Committee fully understands what it wants to do, and noted that there are changes that might be appropriate for consideration in round two.
The President and CEO suggested that if this is an implementation matter (which at the moment it seems to be), then the Committee should defer to staff to discuss the issues with ALAC respectfully. Chris agreed that the issues should be addressed by staff.
Ray questioned whether the ALAC would view the Committee as unreceptive or unresponsive if the Committee defers to staff to address the ALAC's issues. Ray also noted that this is not simply an implementation matter, and that ICANN needs to develop an implementation methodology to provide clear-cut procedures and processes for staff to deal with these things. Ray suggested that if the procedure is going to require a staff decision, then the procedure should cite the appropriate policy that needs to be brought into the evaluation.
The Chair closed the discussion and provided a review of the action items from the discussion. Thomas agreed to prepare a draft of the response to the ALAC to be sent prior to the Durban meeting. The Chair also noted that Suzanne and Ram would be invited to be involved as subject matter experts, but would not participate in any decision.
The Chair then called the meeting to a close.
Published on 14 August 2013