Board approves New TLD

[Rubber Duck]

https://par.icann.org/files/paris/Bo...g_26June08.txt

Now the second item is the -- deals with the GNSO recommendation in relation to a policy for creating new gTLDs. This is a result of two years' work, at least, in the GNSO, resulting in a policy which was presented to us last year.
And there is now a substantive resolution on that. And it gives me great pleasure to call on Bruce Tonkin, a former chair of the GNSO and who has been very helpful to the board in understanding all the work that went on at the GNSO, to introduce that resolution.
Bruce.
>>BRUCE TONKIN: Thank you, Peter. This will be a fairly long resolution, and I will try and read it slowly so that it can be transcribed.
Whereas, the GNSO initiated a policy development process on the introduction of new gTLDs in December of 2005.
Whereas, the GNSO committee on the introduction of new gTLDs addressed a range of difficult technical, operational, legal, economic, and policy questions, and facilitated widespread participation and public comment throughout the process.
Whereas, the GNSO successfully completed its policy development process on the introduction of new gTLDs, and on the 7th of September of 2007, achieved a supermajority vote on its 19 policy recommendations.
Whereas, the board instructed staff to review the GNSO recommendations and determine whether they were capable of implementation.
Whereas, staff has engaged international technical, operational, and legal expertise to provide counsel on details to support the implementation of the policy recommendations, and as a result, ICANN cross-functional teams have developed implementation details in support of the GNSO's policy recommendations and have concluded that the recommendations are capable of implementation.
Whereas, staff has provided regular updates to the community and the board on the implementation plan.
Whereas, consultation with the DNS technical community has led to the conclusion that there is not currently any evidence to support establishing a limit to how many TLDs can be inserted in the root based on technical stability concerns.
Whereas, the board recognizes that the process will need to be resilient to unforeseen circumstances.
Whereas, the board has listened to the concerns about the recommendations that have been raised by the community, and will continue to take into account the advice of ICANN's supporting organizations and advisory committees in the implementation plan.
It is therefore resolved, based on both the support of the community for new gTLDs and the advice of staff, that the introduction of new gTLDs is capable of implementation. The board adopts the GNSO policy recommendations for the introduction of new gTLDs.
It is also resolved that the board directs staff to continue to further develop and complete its detailed implementation plan, continue communication with the community on such work, and provide the board with a final version of the implementation proposals for the board and community to approve before the new gTLD introduction process is launched.
>>PETER DENGATE THRUSH: Thank you, Bruce.
Is there a seconder for that resolution?
Rita.
Any discussion about the resolution to adopt the GNSO proposals?
Dave Wodelet.

>>DAVE WODELET: Thank you, Mr. Chairman.
I just think it's important for the public record to make some comments about adding new gTLDs to the root. While conceptually I agree and see the benefit to the community with adding more TLDs to the root, there are still some concerns about how scalable in the long term this will be.
How many can we truly support? Well, from the best guess we have, and I do stress the word "guess," somewhere around 5,000 or so TLDs seem to be realistic.
But how high can we actually go? We really don't know.
There are both technical and administrative issue limits to the scaling. And it looks like the administrative issues may be more limiting than the technical ones.
Certainly, what we do now administratively will certainly need to change to support even the 5,000 or so that I mentioned earlier.
So how many will we have to support? Well, if we just look at the number of place names, there seems to be somewhere between 5 and 6 million place names in the world. And if every one of these wanted a TLD, that might not be possible.
And the 5 to 6 million place names doesn't include the number of commercial TLDs businesses may want, and this 5 to 6 million doesn't include the vanity names people may want as well, nor does this 5 to 6 million include what we may need in the future for names of planets, planetary colonies, which may, indeed, happen within the life of our Internet.
So I am a bit concerned about spending our TLD name inheritance for future generations of Internet users. As we know, everything has limits, like IPv4. We all know that has a limit, and that's why we're looking at IPv6.
Like fossil fuel, which we all know will be used up in a very narrow slice in human history.
I certainly don't want future generations to look back at us with disdain for not being good stewards of this limited TLD resource. But today, at this point in time in the Internet, can we support more TLDs in the root? Most certainly.
Is there a benefit to the Internet community by adding more TLDs? Yes, I believe there is.
So that's why I'm supporting this proposal.
But as I mentioned earlier, I feel it's important to highlight some of the possible limits we may find as we go forward. I think it's important to let everyone know this is something we are going to have to monitor carefully as we slowly move forward in adding new gTLDs.
Thank you, Mr. Chairman.
>>PETER DENGATE THRUSH: Thank you, Dave.
Any other comments?
Janis.
>>JANIS KARKLINS: Thank you, Chair.
Since there was not possibility to read the GAC communiqu� this time, I think that this is appropriate to make a statement on behalf of the GAC in relation with this topic.
The GAC welcomed the extensive efforts by the GNSO to respect and incorporate provisions of the GAC principles regarding new gTLDs in their approach.
During its discussion in Paris, however, the GAC expressed concern to the GNSO and to the ICANN board that the GNSO proposal not include provisions reflecting important elements of the GAC principles; in particular, section 2.2, 2.6 and 2.7. The GAC feels these are particularly important provisions that need to be incorporated into any ICANN policy for introducing new gTLDs.
In particular, given the existing levels of concentration in the gTLD market, the GAC reiterates that ICANN needs to adopt an implementation procedure that further facilitates new entrants to the registry, registry services, and registrar markets, and avoid unduly favoring those existing registries and registrars involved directly in the policy development process.
Thank you, Chair.
>>PETER DENGATE THRUSH: Thank you, Janis.
I have a speaking order with Wendy and Susan, followed by Rita, on it.
Wendy.
>>WENDY SELTZER: Thank you, Peter.
So the at-large, as registrants and as users of domain names, supports the introduction of new gTLDs. Has no interest in delaying that process, but does wish to express its concern about two of the recommendations in the GNSO recommendation set. Specifically, the morality and public order objection and the objection based on community objections.
And ALAC and its RALOs, in discussion during this meeting, put together a statement, which I won't read in its entirety, but expressed concern that putting these criteria into the gTLD approval process, even as opportunities for objection, injects ICANN into the business of making morality and public order decisions, or injects that into ICANN's processes in a way that, as ALAC put it, debases the ICANN process. And at-large does not want to see ICANN put into the business of adjudicating or even delegating the adjudication of morality or public order or community support.
And so we hope that in implementation, these criteria can be kept sufficiently narrow so that they are both administrable and understandable and so that they do not involve ICANN, the organization, in making, or allowing to be made, determinations about any claim to generally accepted morality principles.
Thank you.
>>PETER DENGATE THRUSH: Thank you, Wendy.
Susan.
[ Applause ]
>>SUSAN CRAWFORD: Thank you, Mr. Chairman.
I have mixed feelings on this day. I have long supported the entry of new gTLDs into the root. It has seemed to me that it's inappropriate for ICANN to use its monopoly position over giving advice about the existence of new TLDs to create artificial scarcity in TLDs, where there is no natural scarcity, in my view.

[Rubber Duck]

And that has led to a great deal of pent-up demand for the creation of new TLDs for various reasons, for communities, for new identities, all over the world.
And in particular, it is urgent that we create IDN gTLDs for the many language communities around the world that would prefer to have those.
The question presented to the board today is a little strange.
What we're being asked to respond to is whether the recommendations, the policy recommendations from the GNSO are implementable. And then staff will go on, and if we decide they are, theoretically, implementable, will draft the implementation guidelines for the recommendations made by the GNSO council.
There is a lot of important effort to go into those implementation details. And I am signing up to these recommendations on the condition that the implementation work will proceed as planned, and that the board and the community will have an opportunity to comment in detail on that implementation work.
In particular, I want to applaud and underline what Wendy Seltzer just said about the morality and public order recommendation, recommendation number 6.
Way back when ICANN was formed, that original MOU, which we're now talking about as the JPA, talked of transitioning the management of the Domain Name System to the private sector.
And the idea was to figure out whether the private sector had the capability and resources to assume the important responsibilities related to the technical management of the DNS. So that was the question.
And so the creation of ICANN, and the question before all of us, was whether this entity would be a good vessel for allowing the private sector to take the lead in the management of the Domain Name System.
And, in fact, the white paper in 1998 said that while international organizations may provide specific expertise or act as advisors to the new corporation, the U.S. continues to believe, as do most commenters, that neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses.
Of course, national governments now have, and will continue to have, authority to manage or establish policy for their own ccTLDs.
This wasn't done out of enthusiasm for the free market alone. The idea was also to avoid having sovereigns use the Domain Name System for their own content, control, desires. To avoid having the Domain Name System used as a choke point for content.
Recommendation 6, which is the morality and public order recommendation, represents quite a sea change in this approach, because the recommendation is that strings must not be contrary to generally acceptable legal norms relating to morality and public order that are recognized under international principles of law. That's the language of the recommendation.
Now, if this is broadly implemented, this recommendation would allow for any government to effectively veto a string that made it uncomfortable.
Having a government veto strings is not allowing the private sector to lead. It's allowing sovereigns to censor.
Particularly in the absence of straightforward clear limits on what morality and public order means, people will be unwilling to propose even controversial strings and we'll end up with a plain vanilla list of TLDs.
So I am unhappy about this recommendation. I am willing to vote for it on the strength of the board's discussion and the staff's undertakings that the standards for this recommendation will be narrowly stated.
And on my expectation that the board and the community will have an opportunity to review and approve, or not, the details of those standards.
We do have some global norms of morality and public policy. They are very view. One of them is incitement to violent, lawless action. Nobody wants that around the world.
A second might be incitement to or promotion of discrimination based on race, color, gender, ethnicity, religion, or national origin.
And the third might be incitement to or promotion of child pornography or other sexual abuse of children.
Otherwise, the question of morality and public order varies dramatically around the world. It's a diverse, complicated world out there. And it may not be -- it should not be possible to state that there is a single standard of morality and public order around the world.
So I am asking that staff come back with an express standard that's constrained to stated norms, like the three I just listed, found and expressly in their national treaties. We need clear lines of adjudication. And I would be content with that kind of implementation.
Another concern of mine is with -- with this list of recommendations is recommendation 20 which says, "An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted."
It's quite unclear how it's all going to work out, whether any generic applicant could ever win over a community, could ever succeed in contention for a string over a community that says it's a community. And I look forward to many more details on this recommendation as well.
And finally -- and I'm sorry to speak at such length but I think it's an important moment. Finally, I'm not happy with the idea that there will be auctions on strings for which there is more than one applicant. And I note that the GNSO's own recommendations on this subject don't mention auctions. And I hope the board will not adopt this approach.
My bottom line is I will vote for this set of recommendations, and I hope that the implementation will be sensible.
Thank you.
[ Applause ]
>>PETER DENGATE THRUSH: Thank you, Susan.
Rita.
>>RITA RODIN: I guess I have a little bit of a different sentiment. I share Susan's notion that I am thrilled that we are finally doing this today. It's certainly been a long time coming. But I actually think this new gTLD approval is indication that the bottom-up community-based approach actually works.
You can see a little bit in the resolution language here what the board's thoughts were, but I wanted to highlight a couple of things for the audience.
First, one of the things that the board talked about today was, and you heard from Dave Wodelet as well, was that technically, there's no reason at this point that we should limit the number of new gTLDs in the root.
We also have a report from the GNSO that was approved by a supermajority. So two-thirds of that council said, from a commercial and -- perspective, we want to have more gTLDs.
But I think you have heard from some board members that there are concerns of varying types about this process.
And so we have had everything from trademark owners. We heard someone yesterday from a small business saying that they were concerned about protecting their brand. We have heard people talk about morality and public order now and what does that mean. We had a public comment today that said does that mean we are going to have everything go to the most restrictive standard, and is that something that's advisable for this process?
There are a lot of practical things we still need to talk about. How do we deal with rolling out potentially 5,000 new TLDs in the root? How are people going to get them? Susan mentioned auctions.
So I think there's still a lot of work to do.
I think this principle has been adopted by the board, and we should all be happy about that. But there's lots of issues, lots of detail that needs to be determined. And I hope that the community continues to provide input and continues to work constructively with the board and with each other to ensure that we have a fair, straightforward, and successful new gTLD launch.
Thank you.
>>PETER DENGATE THRUSH: Thank you, Rita.
Paul Twomey.
>>PAUL TWOMEY: Thank you, Chairman.
I will say on behalf of myself and the staff that this particular policy proposal is, indeed, if people in Paris will forgive me, this is both the best of times and the worst of times, to quote a certain book about this city, in that this is an extremely exciting time and an extremely exciting proposition in front of the board to move forward with the liberalization of the regime for new gTLDs. But if ever there was an incident where the phrase "the devil is in the detail" were to apply, it is in this particular circumstance.
In some respects, I think what we are now considering is a global equivalent of people moving to liberalized telecommunications markets or electricity markets or any type of market. All of the dynamics that we have seen in those sorts of markets and more so, we can expect to foresee will take place within this changing industry structure that will emerge from this recommendation.
The challenge that you, Chairman, and other board members have put before the staff at previous meetings was to ask us to consider is it possible -- the question you put to us is, are the recommendations from the GNSO council implementable?
We have spent -- I think it's nearly nine months, and I would say 20, 25 members of staff and at least $10 million working through implementation analysis to date for us to be able to say to you, as the resolution says, that it is our judgment that the recommendations are implementable.

[Rubber Duck]

What we have not been able to do is present to you a detailed implementation plan.
So the next stage that is now before us, if you are to proceed and the board does vote for this resolution, is that we shall have to sit down and do, in great detail, the actual implementation planning for the related implementation and -- which will be reflected in requests for proposal documentation and draft contracts for the gTLDs.
We must not underestimate how much more work there needs to be done.
And if I can just, quite specifically, pick up some of the points that have already been raised. To the points made by Susan, Wendy and others relating to some of the objections, objection criteria.
We have had the chance to speak to major international, experienced arbitration organizations, and we have had the chance to take -- we have had lawyers in well over a dozen jurisdictions doing work for us, working through these issues, and we have been able to come to the conclusion about that it is implementable. What we will now need to do is go back and further advance that as to what specifically would be required to actually operate a process for implementation.
This is very similar, if you like to think of it at the initiation. Uniform dispute resolution procedures. And one of my colleagues shared with us earlier today, and I thanked them for the idea so let me share it further. If you go back prior to the UDRP, there was no global intellectual property regime. There was intellectual property regimes reflected in national jurisdictions. There was law related to it, there were treaties, but it's reflected in national jurisdictions.
The UDRP process has built a de facto form of -- over its period of time, a de facto form or place for a global approach to intellectual property as it applies to domain names.
We will be confronted with establishing the same sort of framework and evolutionary process for development and the foregrounds of headings going into the future.
So we need to think through, A, very carefully, what are those procedures and criteria that we shall come back, but also, importantly, the role that the arbitrators have played in the UDRP I think is key.
They have built up over a period of time from their experience a body of precedent which now has sway and real effect in the international Internet environment.
We should expect to see and we are looking for that level of experience of arbitrators to bring similar sorts of capability to this development work, and we are very conscious as staff of the advice we have received from the board and board members on some of these policies. They are not at all easy.
So that will be one of the things that we shall be coming back, reporting. We will be making available for public comment and we will be making available for board approval in the months ahead.
A second one is some of the points that the chair of the Governmental Advisory Committee has put forward. Quite a number of the recommendations from the GAC principles have been incorporated so far in the implementation planning.
But we have not had the opportunity to fully take all of the issues and take them to the next level of detail. And it is certainly our intent. Specifically, issues around geographical terms is clearly something that we will have to consider and write up an implementation terms and bring back for consideration with the board and the community.
So I just wish to make the point to the members of the GAC is that the communiqu�s that are put forward, principles for consideration, are certainly being listened to in great detail, or being observed in great detail by staff preparing thinking on implementation. But it's happening in layers as we deal with levels of detail in this task.
Another very important area that we have yet to do to put forward for implementation is the key issue of what is the -- what is an analysis of the industry structural separation of registries and registrars in the generic top-level domain space.
The original ICANN compact, the basis upon which ICANN was first brought together, was on the basis of a separation of registry and registrar. Indeed, it was a concept by the international ad hoc committee prior to the formation of ICANN, or at least it was discussed in that format.
So the concept of a separation of registry and registrar in the industry circumstances as of 1998 was embedded within agreements, within legacy agreements in the generic top-level domains, the legacy agreements.
Clearly, the market continues to evolve.
This issue of how do you think about, in the long term, the benefits to the consumers of whether you should or should not have industry structural separation and what should the rules that apply to that is a key question. As we have already indicated at the Los Angeles meeting and since to members of the community, we have commissioned outside international computational economists, people with experience on these issues, to prepare reports on this specific point.
We have not yet received a report. This report will be made available for comment and will be a key basis of consideration for what may well be terms in the draft contract on that particular issue.
Similarly, the pricing of application fees, as has been pointed out by board members, the application fee process, the council's recommendation is that this process should be cost-neutral. And you will have heard from the chief operating officer that ICANN's budgeting has quite separately been structured -- or by the chair of the finance committee, in particular -- has been structured so that ongoing operational costs and expenditure is structured one way and that there will be separate reporting on the new TLD process and the costs and revenues associated with that.
The recommendation from the council has been that the second part needs to be cost-neutral. In other words, it is cost recovery.
I can inform you that we have so far spent about $10 million, and we -- I expect that in the total, we will spend somewhere between 10 and $20 million. And it will be fully accounted to the community, and full details will be made available.
We will, of course, have to make decisions about which of those costs are appropriately applied. May I give you an example.
The cost of the GNSO Council's work itself in developing the policy, I think that's something like around $2 million. The question is whether that's an appropriate figure that should be included or not.
We shall have to have that as a discussion.
The other part, of course, is over what period of time do you immortalize that expensive, over how many applicants, and what sort of risk premium do you need to bring in, considering inevitably that there shall be lawsuits.
So there's, you know -- part of life.

[Rubber Duck]

So there's a series of things we have to work through before we have the pricing. I know I'm taking a lot of time, so I'll try to make more quickly.
I think I can summarize the rest of my points in saying that we are taking a lot of care in thinking about ensuring the stability of the mechanisms for introduction and for the ability for review, and, importantly, to ensure that there is some form of scaled measure of enforcement of undertakings by the new gTLDs.
So I want to give the community some detail of the issues that have not yet been brought to the board for consideration and that we, as a community, will need to work on over the next five, six months.
Thank you, Chairman.
>>PETER DENGATE THRUSH: Thank you, Paul.
Unless there is any -- Raimundo.
>>RAIMUNDO BECA: Thanks, Peter.
Today, we are confronted to a discussion of principles. And tomorrow, we will discuss about the implementation and the RFPs.
The wording we have today, I feel comfortable with it, just because it is -- it's sufficiently broad and it leaves the room to find a way to implement it.
Many people in the community, and even in this board, think that a broad definition is not implementable. No doubt, it's not easy to implement broad principles like those. But at least myself, I am persuaded that the converse is even less implementable. If we tried to make a definition and the definition of all these principles, we are going to be spending for many years and will not have consensus. We'll never achieve consensus.
I had the privilege many years ago, 25 years ago exactly, to be at the table discussing the guidelines of the OECD on privacy. And I can tell you how difficult, how difficult privacy of data is to achieve consensus between a European culture and an American culture. Almost impossible. And the fact is that the guidelines of the OECD have been used and not used according to the culture of different -- of the members of the organization.
Finally, I would like to underline that the root has to have two characteristics.
Number one, it has to be global. And not every string in the world is global.
And, number two, it has to be not scalable.
Why so?
Because of the billions of domains that we are going to have, not all of them, not all of the names are going to be -- we are able to put it in the root. The root will always be scarce.
And many times, the value of a string becomes not of the value of the name itself, but of the place, of the place where it is. As soon as we go from the right to the left in the spelling of a string, the names are getting lower and lower value. And, finally, a string which is in the fourth level within a company has no value at all.
So we have to have, in the preparation of the -- of these RFPs, a strong sense of saying, well, let's keep it global, and let's keep it not scalable.
In particular, I have said that before, and I will continue to say to this board, I have a big concern about vanity names. There's (inaudible) in the world that would like only for vanity, to have their name in the root. And they have the capital to invest and to be there.
We have to downscale that. If not, we are going to have millions, millions of vanity names in the root.
Thanks.
>>PETER DENGATE THRUSH: Raimundo, and Dennis.
>>DENNIS JENNINGS: Thank you, Chairman.
Just very briefly, I'd like to assure the audience here and online that we are aware of all the concerns of many of the people in the various stakeholder organizations, and we have considered them very carefully. And that, on balance, the board feels that adopting this resolution is in the best interests of the Internet and the public at large that we move forward the process of introducing IDN and ASCII gTLDs.
>>PETER DENGATE THRUSH: Thank you.
Well, thank you for those contributions from various board members. I think we have covered a wide range of topics, including the origins and the historic importance of this particular decision.
But I think sufficient time has now been given for board members to contribute, and I'm going to put the question to the vote.
So it's moved and -- was it seconded? Rita seconded.
I think we all understand the consequences. So I'll put the vote. All those in favor, please raise your hands.
All those opposed.
Any abstentions?
Well, I'm pleased to record that's carried unanimously.
Well done.