At-Large New gTLD Board Committee Consideration of GAC Safeguard Advice Workspace

(*) Comments submitted after the posted Close Date/Time are not guaranteed to be considered in any final summary, analysis, reporting, or decision-making that takes place once this period lapses.

FINAL VERSION TO BE SUBMITTED IF RATIFIED

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FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC

ALAC Statement on the New gTLD Board Committee Consideration of GAC Safeguard Advice

The At-Large Advisory Committee (ALAC) supports the intent of what is requested in the New gTLD safeguards outlined within the GAC Communiqué issued during the ICANN 46th meeting in Beijing.

We find it regrettable that these safeguards were not introduced by the GAC during the design of the New gTLD program or much earlier in the implementation process.  An early intervention would have successfully imprinted strong public interest requirements on the program.  In addition, it would have allowed sufficient time for ICANN to develop more effective and enforceable mechanisms to address community and public interest concerns.

The contents coupled with the late timing of the GAC intervention highlight the challenge of understanding and grappling with the full implication of an extremely complex program on the interests that the GAC represents.  We feel that it is important for the ICANN Board to note that different stakeholder groups in the ICANN ecosystem have different consultation requirements to come to an agreed position.  Some (like the GAC and the ALAC) may require more time to provide meaningful, representative and consultative feedback.

The GAC advice carries tremendous value in terms of consumer protection, which the ALAC fully appreciates.  We recognize that the intervention creates a high level of uncertainty regarding the implementation and viability of the new gTLD program.  We thus call on the ICANN board to address the concerns raised by the GAC with urgency to restore public confidence in the program while striving to re-establish certainty parameters for the new gTLD applicants.

Safeguards Applicable to All New gTLDs

Safeguards applicable to all new gTLDs: The ALAC supports all of the safeguards in principle.

We understand that the introduction of the safeguards at this point in time may place an unreasonable burden on new registries, including additional legal and financial liabilities.  These additional requirements may jeopardize the success of new enterprises and create a significantly uneven playing field between them and the legacy gTLDs.  To enhance choice and competition in the gTLD space, we urge ICANN to do everything possible within its remit to lessen the impact of the liabilities including through the use of contractual tools.

Safeguard for WHOIS verification and checks: We believe the term “statistically significant” needs to be carefully defined so as to set clear expectations and eliminate misunderstanding in implementation.

Category 1 / Consumer Protection, Sensitive Strings, and Regulated Markets

Sub-Items 1-4: We find these additional safeguards to be reasonable and support them fully.

Sub-Item 5: we find the requirement of providing contact details for regulatory bodies to be excessive, particularly for many TLD classes cited.

Non-Exhaustive Strings Identified for Safeguard Application: We find the list of TLDs to be over-reaching.  The references to “non-exhaustive” imply that at some undefined point in the future, new TLDs may be added to the list, which will affect program certainty for gTLD applicants or later operating registries.

Sub-Items 6-8:  The reference to "some of the above strings may require further targeted safeguards" is far too vague. Requirements for authorization and credentials and registry verification and re-verification of them are certainly justifiable for a limited set of TLDs. However, when taken in the context of the 180+ Category TLDs, such controls would put these new registries at a significant disadvantage to competing domain alternatives and would exercise control that is virtually unheard of in other forms of media.

Exclusive Access: We support the requirement that exclusive registry access should serve a public interest goal.  However, we feel that the requirement as stated is too general and requires greater specificity for enforceability.

Public Interest Commitments

Although this Public Comment Period is specifically focused on the safeguards identified in Annex I of the GAC Communiqué, the ALAC feels it important to highlight Annex II as well.

The GAC has issued as set of questions related to the Public Interest Commitments (PIC) Specification for new gTLD registries. The ALAC shares the GAC’s interest in the PIC as a mechanism for addressing community and public interest concerns.  The ALAC urges the ICANN Board to ensure that the questions posed by the GAC, as well as those concerns identified in the ALAC Statement on the PICDRP, are addressed urgently, and that clarification on the enforceability of the PIC be relayed clearly and comprehensively to the ICANN community by the time the ICANN 47th meeting is convened in Durban.

FIRST DRAFT SUBMITTED

The ALAC supports the intent of much of what is requested in the Safeguards on New gTLDs within the GAC Communiqué issued during the ICANN meeting in Beijing.

The ALAC regrets that many of these safeguards were not included as a matter of course during the design of the New gTLD program, and barring that, that the GAC had not requested such safeguards much earlier. Either would have demonstrated ICANN’s concern for the public interest far better than the position that we now find ourselves in and allowed ICANN and TLD applicants to move forward with certainty.

On the specific safeguards, the ALAC offers the following comments:

Safeguards Applicable to all New gTLDs.

The ALAC supports all of the safeguards in principle, but is concerned that their introduction at this point and with the full onus on the new registries may place an unreasonable burden on these new registries, and may additionally add unreasonable legal and financial liabilities on these registries. Both impacts may serve to jeopardize the success of these new enterprises and create a significantly uneven playing field between them and the legacy gTLDs.

ICANN should do whatever possible to lessen these impacts and liabilities, both contractually, and to the extent possible, assuming some of these responsibilities within ICANN. Moreover, terms such as “statistically significant” will need to be carefully defined so as to set clear expectations and eliminate misunderstandings.

Consumer Protection, Sensitive Strings, and Regulated Markets:

Safeguards 1-4 are reasonable and the ALAC supports them fully. Safeguard 5, to provide abuse point-of-contact and contact details for regulatory bodies appears to be excessive, particularly for many of the classes of TLDs cited.

Moreover, the ALAC finds that the list of included TLDs is somewhat over-reaching. The references to “non-exhaustive” imply that at some undefined point in the future, new TLDs may be added, again decreasing certainty for gTLD applicants or later operating registries.

Safeguards 6-8 on credential validation although theoretically attractive would seem to place an unreasonable burden on many of the TLD registries. Moreover, the identification of which TLDs this advice would apply to is far too vague to be directly implementable. The ALAC recommends that this be clarified.

On the requirement for Exclusive Access strings, the requirement that “exclusive registry access should serve a public interest goal” is admirable but sadly lacking in any degree of specificity or enforceability.