Governments press ICANN over new domain rules

A rare rift has developed between national governments and the nonprofit organization that oversees Internet domain names, with neither side showing signs of backing down in a dispute that includes trademarks and free expression.

In a statement released over the weekend, the Internet Corporation for Assigned Names and Numbers, or ICANN, listed 23 areas of continued disagreement over the rules for approving new top-level domain names. Hundreds of applications for these suffixes are expected later this year, including .car, .love, .movie, .web, and .gay.

ICANN chairman Peter Thrush wrote (PDF) that his organization "has made a good faith effort toward narrowing the outstanding issues," which were debated at a meeting in Brussels last week. The formal "consultation"--unprecedented in ICANN's 13-year history--is expected to resume at ICANN's meeting in San Francisco that starts March 13.

The disagreements center on the question of how much influence government officials, and to a lesser extent trademark owners, will enjoy over the process of creating new domain suffixes.

National governments, which have not flexed their muscles as visibly in this way before, are pushing to give themselves greater ability to object to proposed suffixes while handing trademark holders more power to monitor new domain names registered under those suffixes. ICANN has rejected both proposals, saying that the former will lead to "ad hoc changes to the evaluation process based on subjective assessments."

"The dynamics of watching it in person are a lot like this--a couple in an arranged marriage who grudgingly realize that they have to work as equals or watch their whole family and fortune be a ward of the United Nations," says Steve DelBianco, executive director of the NetChoice coalition, whose members include AOL, eBay, Oracle, VeriSign, and Yahoo.

That's a reference to a push by some governments to divest ICANN of domain name authority and instead hand it to a United Nations agency, most likely the International Telecommunication Union.

Last year, China and its allies objected to the fact that "unilateral control of critical Internet resources" had been given to ICANN, suggesting instead that the U.N. would be a better fit. According to a transcript (PDF) of last week's Brussels meeting, Kenya's representative threatened that, without some changes, developing countries "will take another direction--and I can tell you they will just go to the ITU."

Representatives of national governments on ICANN's Governmental Advisory Committee, or GAC, recently rejected a proposal from the United States that would have given them a veto over new top-level domains. But they are nevertheless seeking more influence over the process, saying that "additional scrutiny and conditions should apply" to suffixes such as .bank, and that the possibility of future "market power" should be taken into account. They also want the ability to object to proposed suffixes without paying.

"The real hazard in this is the GAC's insistence that ICANN be able to predict the likelihood of market power," DelBianco says. "Governments around the world have competition authorities of their own. Why would we want ICANN to take on a role they're so uniquely ill-equipped to play?"

Another point of disagreement is over how the process should aid trademark holders. That could help companies like eBay or PayPal prevent cybersquatting and phishing attacks against their customers. It also could make it more difficult for legitimate companies and individuals to do business if they happen to be using a word close to a trademarked phrase.

GAC has suggested lowering the burden of proof for trademark holders, adding a "loser pays" mechanism, and permitting monitoring of not only exact infringements but also "key terms" associated with a trademark such as "Kodakonlineshop."

"ICANN shouldn't be involved in trademark policy--what does that have to do with protecting Internet stability?" says Karl Auerbach, chief technology officer at InterWorking Labs in Scotts Valley, Calif., and a former ICANN board member who sued the organization to gain access to its books. "If ICANN were responsible for airlines, they'd be more concerned about whether tickets were printed on the right stock than about whether airlines can fly safely."

A seven-page statement (PDF) in December 2010 from GAC says its is "very concerned" that "public policy issues raised remain unresolved." In addition to concern over the review of "sensitive" top-level domains, the statement says, there are also issues about "use and protection of geographical names." (For instance, should a U.S.-based entrepreneur be able to register .london or .paris, or should those be under governmental control?)

That statement followed years of escalating tensions between ICANN and representatives of national governments, including a letter (PDF) they sent in August 2010 suggesting that "the absence of any controversial (suffixes) in the current universe of top-level domains to date contributes directly to the security and stability of the domain name and addressing system." And the German government recently told (PDF) ICANN CEO Rod Beckstrom that there are "outstanding issues"--involving protecting trademark holders--that must be resolved before introducing "new top-level domains."