ICANN Proposal for Objecting to Contentious gTLDs is Flawed, Governmental Advisory Committee Says

The Governmental Advisory Committee had “a fruitful exchange” with ICANN officials on the subject in April, said Chairman Janis Karklins, but has yet to find a satisfactory resolution of its concerns. ICANN tried hard to come up with a way to correct the challenges the proposal raises for governments, Sene said. The problem is that the terminology, MOPO, is taken from a treaty on trademark protection that lets countries exempt themselves from granting a mark on the ground of morality and public order, she said. That approach lets nations define individually what forbidden TLDs are, which won’t create any sort of an international standard, she said. Moreover, MOPO won’t reach questions about TLDs that are names of religions or other sensitive terms, such as .catholic, she said. There’s no universal agreement on MOPO, ICANN’s proposed approach is unworkable and the GAC can’t find an alternative, she said. The ball’s back in ICANN’s court, Sene said.

It would be nice if governments could “define a way out for ICANN” but it hasn’t happened, said European Commission GAC representative Bill Dee. The EU won’t endorse a procedure that could limit its ability to object to gTLDs in the future, he said. There’s no possible way to implement the process in any way, said the Italian GAC member.

A mechanism for ensuring that new gTLD strings are acceptable is important, but equally key is preventing one country from nixing an application, said Bertrand de la Chapelle, French Foreign Affairs Ministry special envoy for the information society. It’s not hard to imagine certain ISPs blocking access to controversial gTLDs to keep their communities happy, he said. That would threaten equal accessibility to content, he said. Domain space at the higher levels must be accepted and accessed in all countries, with any filtering or control taking place only at a lower level, he said.

Pakistan’s fall-back solution if no alternative to MOPO is found is that countries have the option to block offensive TLDs, subject to some form of an appeals process, its representative said. India called for generally-accepted string principles for TLDs. Switzerland warned that any solution that divides the Internet will signal the end of a universal system.

There are more than 270 TLDs now, none offensive to anyone, Dee said. The global Internet community won’t be pleased with ICANN if it creates a fragmented Web, he said. The starting point for the MOPO discussion is that the root zone file, and any new TLDs, be acceptable to everyone, he said. ICANN should seek to introduce non-contentious TLDs to the root, knowing there will be “some pain along the way” as some nations object to certain strings, he said.

Given its opposition to MOPO, the GAC could flag its concerns without a solution and risk being deemed unconstructive, Karklins said. Another option is to make a counter-proposal, which doesn’t yet seem likely, he said. The third alternative is to ask ICANN to cut out the MOPO provisions from the guidebook, he said.

NTIA’s Sene proposed an approach that looks to authoritative international lists or resources to determine if a particular TLD operator is the appropriate one to represent geographical names, or cultural or ethnic interests. There’s a difference between a TLD string which is itself offensive and a TLD that’s otherwise acceptable but which is being operated by an inappropriate actor, said de la Chapelle. The latter could be dealt with by using the same sort of analysis currently used in determining the level of community sponsorship for a sponsored TLD, he said. The GAC appears to have a strong desire to maintain the notion that all TLDs be accessible in all countries, he said. It doesn’t make sense to allow an applicant to apply for a TLD that’s likely to be blocked in some places, he said. Applicants could be urged to seek an inoffensive term and then allow domain name registrants at the second level to deal with content issues, he said. Indonesia suggested a trial period for new TLDs after which, if there are no complaints, the registry contract could be extended.

Rather than seeking the lowest common denominator for TLDs, ICANN should find a solution agreeable to everyone that is linked to national laws, the Australian GAC representative said. MOPO should be replaced by a mechanism that lets governments object on the basis of national legislation, he said.

The North American Regional At-Large Organization proposed having a predefined list of approved terms, but Pakistan said governments must still be able to object to applications. No one knows if there are any universally unacceptable TLD strings, but if there are, it’s unclear whether they be put on a finite list of subjects, said de la Chapelle. Any country that wants to block an entire TLD should have to follow explicit, open legal processes, he said. Government should have some time after an application is filed to advise the applicant that they will block the domain space unless they make the term less offensive, he said.

But the EC cautioned against the emerging idea that nations can block TLDS at any level. It won’t take long for countries to realize that they can also add new TLDs for their national community, raising the threat of colliding TLDs in alternate roots, he said.

MOPO sparked tension during the GAC’s meeting with the ICANN board. Sene explained GAC’s concerns, prompting a request by ICANN board Chairman Peter Dengate Thrush for a clear statement on what governments think is wrong with the proposal and what should be done to fix it.

This is a serious matter which goes to the question of the GAC’s role in ICANN, said the EC’s Dee. Governments say MOPO is unworkable for them, he said. They're willing to work with ICANN to find an answer, but dispute they're responsible for solving the problem, he said.

The GAC’s comments look like judgment, not advice, said Dengate Thrush. The board looks forward to receiving advice “with real interest,” he said. The meeting ends Friday.