The GNSO Council has approved a blanket ban on singular and plural versions of the same word being delegated as gTLDs in future and passed it to the ICANN board of directors for final consideration. The proposed policy would prevent anyone applying for the singular/plural equivalent of an existing gTLD, and would put future applications […]
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The GNSO Council has started discussing bringing in the lawyers over ICANN’s recent handling of issues related to its $200+ million auction fund and Grant Program. The Council today raised the possibility of deploying the never-before-used Community Independent Review Process, which would involve every major community group ganging up on ICANN’s board in a protracted […]
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Parts of the ICANN community have revolted over ICANN’s move to make it easier to turn off the mechanisms used to appeal its decisions.
Both registries and registrars, along with their usual opponents in the business and intellectual property communities, have told the Org that a proposal to change its foundational bylaws are overly broad and creates new powers to diminish ICANN’s accountability.
Meanwhile, the Intellectual Property Constituency seems to have escalated its beef with ICANN related to the proposals, entering into a Cooperative Engagement Process with ICANN. CEP is usually, but not always, a precursor to an expensive, quasi-judicial Independent Review Process case.
The row relates to the Grant Program, which launched a month ago and will see ICANN hand out $217 million it gained from auctioning registry contracts during the 2012 new gTLD program application round.
The rules of the program were developed by the Cross-Community Working Group on New gTLD Auction Proceeds.
The CCWG was afraid that ICANN might wind up frittering away most of the money on legal fees unless unsuccessful grant applicants, and third parties, were banned from appealing grant decisions they didn’t like. So its Recommendation 7 proposed a bylaws amendment that would prevent the Independent Review Process and Request for Reconsideration process from being used with reference to the Grant Program.
What ICANN came up with instead is a bylaws amendment that could be applied not only to the Grant Program, but also potentially to any future activities.
Specifically, ICANN’s proposed amendment gives future CCWGs, assuming they have sufficient community representation, the ability to recommend exceptions to the accountability mechanisms, which ICANN could then accept without having the amend the bylaws every time.
But almost every constituency that has filed an opinion on the proposals so far thinks ICANN has gone too far.
The IPC said says ICANN’s proposal is “unacceptably broad and exceeds what is necessary to give effect to Recommendation 7” adding:
The IPC is also concerned that making such a broad Bylaws amendment could have the consequence of normalizing the idea of removing access to accountability mechanisms, rather than this being an exceptional event. This is not something that should be encouraged.
The Registries Stakeholder Group said the proposal “creates an alternative path for amending the Bylaws that contradicts the existing amendment processes”
“The Accountability Mechanisms are foundational to ICANN’s legitimacy. Access to Accountability Mechanisms should be prevented only in rare circumstances with the clear support of the Empowered Community,” it added.
The Registrar Stakeholder Group concurred, writing:
Robust Accountability Mechanisms are a lynchpin of ICANN’s broader accountability structure. They should only be disallowed, if ever, in very specific circumstances, and as a result of the full bylaw amendment process. The proposed bylaws amendment vests CCWGs with the power to disallow Accountability Mechanisms which we believe is inappropriate.
Several commenters pointed out that CCWGs are less formal ICANN policy-making structure, with fewer checks and balances than regular Policy Development Processes.
The only dissenting view came from the At-Large Advisory Committee, which said it “strongly supports” ICANN’s proposed amendment, writing:
Although any limitation in accountability is potentially onerous, the ALAC is comfortable that the three conditions proposed in the amendment only allow such limitations in situations where a more specific Bylaw limitation would also be approved by the Empowered Community.
In a related development, the IPC has taken the highly unusual move of entering CEP with ICANN, suggesting it is on the IRP path.
The IPC had filed a Request for Reconsideration late last year, at a time when it appeared that ICANN had outright rejected Recommendation 7 (having previously approved it), but ICANN’s board threw it out mostly on the grounds that the IPC could not show it had been harmed, which the IPC found curious.
If the IPC were to go to IRP, it would be unprecedented. The mechanism has only ever been used by companies defending their commercial interests, never by one of ICANN’s own community groups on a matter of principle.
The post Community revolts over ICANN’s auction proceeds power grab first appeared on Domain Incite.
A move by ICANN to grant itself more formal “content policing” powers may be dead, after the community was split on the issue and governments failed to back the move.
The Governmental Advisory Committee yesterday sent comments essentially opposing, for now at least, the idea of ICANN reforming its bylaws to give it more powers over internet content, making it very unlikely that ICANN would be able to get such amendments approved by its community overseers.
The comments came a few days after ICANN extended the deadline for responses to a December 2023 consultation on whether applicants in the next new gTLD round should be able to sign up to so-called Registry Voluntary Commitments that regulate content in their zones.
RVCs would be an appendix to ICANN Registry Agreements which would commit a registry to, for example, ban certain types of registrant or certain types of content from domains in their gTLDs.
They’re basically a rebadged version of the Public Interest Commitments found in RAs from the 2012 round, in which the likes of .sucks agreed to ban cyberbullying and .music agreed to ban piracy.
But they’ve got ICANN’s board and lawyers worried, because the Org’s bylaws specifically ban it from restricting or regulating internet content. They’re worried that the RVCs might not be enforceable and that ICANN may wind up in litigation as a result.
ICANN has therefore proposed a framework (pdf) in which RVCs would be enforced by ICANN only after an agreed-upon third-party auditor or monitor found that a registry was out of compliance.
The board sent out several pages of questions to all of its Supporting Organizations and Advisory Committees in December, asking among other things whether the bylaws needed to be amended to clarify ICANN’s role, but the responses were split along traditional lines.
Registries and registrars were aligned: there’s no need for a bylaws change, because ICANN should not allow RVCs that regulate content into its contracts at all.
“ICANN should maintain its existing bylaws which exclude content from its mission, and allowing any changes to this could be a slippery slope opening ICANN to becoming a broader ‘content police’,” the Registrars Stakeholder Group said in its response, giving this amusing example:
An example of a content restriction is provided in the proposed implementation framework for .backyardchickens (e.g. no rooster-related content). Restricting rooster-related content would require a significant amount of policing, and could even prohibit valuable content that would benefit such a TLD. For example, a backyard hen farmer might want to promote the pedigree lineage of the roosters that helped sire the hens, show pictures of the roosters that were the fathers, etc. All of this could in theory be prohibited,but would also require review and subjective analysis. This would be a very slippery slope for ICANN, and a substantial departure from its mission. Restricting rooster content would then put ICANN in the place of enforcing laws that prohibit backyard roosters, rather than relying upon the competent government authorities charged with overseeing residential animal husbandry.
The Non-Commercial Stakeholders Group was more strident in its tone, even raising the possibility of legal action if ICANN went down the content policing route, saying “the best way for the Board to address content-related PICs and RVCs is to make it clear that it will reject them categorically.” It added:
The prohibition on content regulation in ICANN’s mission is extremely important and very clear. Mission limitations were a critical part of the accountability reforms that were required before ICANN would be released from US government control in 2016… NCSG will mount a legal challenge to any attempt to dilute this part of the mission.
The opposing view was held by the Business Constituency, the Intellectual Property Constituency, and the At-Large Advisory Committee, which is tasked with representing the interests of ordinary internet users.
They all said that ICANN should be able to allow content-related RVCs in registry contracts, but the IPC and BC said that no bylaws amendment is needed because the bylaws already have a carve-out that enables the Org to enforce PICs in its agreements. The ALAC said a bylaws amendment is needed.
“There is a distinction between ICANN regulating, i.e imposing ‘rules and restrictions on’ services and content, versus the registry operator voluntarily proposing and submitting to such rules and restrictions,” the IPC wrote.
“There is also a distinction between ICANN directly enforcing such rules and restrictions on third parties, i.e. registrants, versus ICANN holding a registry operator to compliance with the specifics of a contractual commitment,” it added.
The last community group to submit a response, fashionably late, was the GAC, which filed its response yesterday having reviewed all the other responses submitted so far. The GAC arguably has the loudest voice at ICANN, but its comments were probably the least committed.
The GAC said that ICANN should only go ahead with a bylaws amendment if it has community backing, but that the community currently lacks consensus. It said, “at this stage there are not sufficient elements to justify commencing a fundamental bylaws amendment to explicitly enable the enforcement of content-related restrictions”.
However, the GAC still thinks that RVCs “will continue to serve as tools for addressing GAC concerns pertaining to new gTLD applications during the next round” and that it wants them to be enforceable by ICANN, with consequences for registries found in breach.
The GAC said that it “will continue to explore options to address this important question”.
This all means that ICANN is a long way from getting the community support it would need to push through a bylaws amendment related to content policing. That’s considered one of the “Fundamental Bylaws” and can only be changed with substantial community support.
Such amendments require the backing of the Empowered Community. That’s the entity created in 2016 to oversee ICANN after it severed ties with the US government. It comprises individuals from five groups — the GAC, the GNSO, the ccNSO, the ALAC and the Address Supporting Organization.
For a fundamental bylaws amendment to get over the line, at least three of these groups must approve it and no more than one must object.
With the GNSO, given its divisions, almost certainly unable to gather enough affirmative votes, the GAC seemingly on the fence, and the ASO and ccNSO recusing themselves so far, only the ALAC looks like a clear-cut yes vote on a possible future bylaws amendment.
Perhaps that’s why ICANN chair Tripti Sinha has written to the ASO and ccNSO in the last few days to ask them whether they’d like to think again about ducking out of the consultation, giving them an extra two weeks to submit comments after the original March 31 deadline.
The ccNSO handles policy for country-code domains and the ASO for IP addresses. Both have previously told ICANN that gTLD policy is none of their business, but Sinha has urged them both to chip in anyway, because “the ICANN Bylaws govern us all”.
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