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This is a copy of my proposals, listed after my
comments (which have been posted separately as Section 1) submitted to Miriam
Sapiro and Sebastien Bachollet:
Proposals :
Proposal
1: I am concerned that ICANN’s
selection of New gTLDs may damage or destroy the already existent business
interests of companies who administer TLDs in alternate roots which have grown
in use (for example in Europe) and constitute legitimate use of the worldwide
net, and legitimate business interests. ICANN should avoid the cavalier attitude
to TLDs which already exist (such as the .biz registry that was already
operating prior to Neulevel’s .biz). Introduction of identically-named TLDs is a
recipe for consumer confusion, and is arguably an abuse of the very principles
on the IP case for Sunrise rests. I propose that where there are existent TLDs
every effort should be made to consider their interests and the interests of the
public (who has a right to viable alternate roots). Proposal
2: I
propose the creation of criteria-based methodology for authorizing New gTLDs,
rather than the possibly subjective ‘selection of favourites’. If applicant
registries can meet firm and fixed criteria, then they should be allowed to
proceed, and the market should determine their success or otherwise. The
adoption of this process will help avoid charges of favouritism, help clarify
expectations (which were vague and unclear last time round), and allow for the
emergence of probably 25 to 50 New TLDs in the next 5 years. There appears to be
no technical argument for preventing this expansion, although, as I shall
explain in (3) I believe there are staffing and logistical
difficulties. Proposal
3: I
propose that the functions presently carried out by ICANN should be divided, and
allocated to separate entities, either inside or outside ICANN. This should be
accompanied by a substantial increase in funding and staff allocation. Tasks
(such as this Evaluation Report) should be advertised and put out to public
tender, to introduce and attract
more competition worldwide, with appropriate remuneration to follow. I suggest
that – to meet the large-scale expansion of the namespace and introduction of
new registries – it is essential (in the light of the poor and confused
performance of ICANN overseeing just 7 TLDs) that either ICANN or alternative
agencies are provided with the staff and resources to draw up, adapt, and
implement rigorous and watertight contractual agreements with new registries.
Increased funding should come either from a ‘surplus’ added to domain costs, or
from governmental contributions (either USG or UN). The scale of ICANN’s
operations is too small to handle the expanding worldwide resource for which it
has oversight. Proposal
4: I
propose that there should be a demarcation between businesses which operate the
Registries and businesses which operate as Registrars. The experience of Afilias
was demonstration of the conflicts of interest that can occur when a cartel of
registrars take control of a registry – there was, for example, no justfication
for DomainBank to charge $15000 to one registrant to submit Sunrise applications
without data (in breach of Afilias rules), or for Afilias to accept those
applications (in breach of its own rules) and register the ineligible names. As
a result, the customer (William Lorenz) lost out because he was sold a product
which was not allowed to be submitted; Landrush customers lost out, because
these names were then ‘out’ of the Landrush; but both DomainBank and Afilias
gained – gained money for a ‘non-product’. The fact that Hal Lubsen the Afilias
CEO is also a long-term executive of DomainBank does not enhance trust in the
process. Nor did the Afilias Director from Speednames, whose company charged
over $500,000 to submit 4981 fakes for a single customer. Nor did Afilias Director Govinda
Leopold, when she entered false data for govinda.info, maui.info and Hawaii.info
– resulting in loss for customers who’d bought pre-registrations to have a
chance with any of these. There should be a ‘divide’ between the functions of
Registry and the functions of Registrar – to avoid conflict of
interest. Proposal
5: Where
Agreements are set up (in the public interest) between ICANN and a Registry,
ICANN must have powers and sanctions to enforce these Agreements, and should
accept a responsibility to intervene when the terms of the Agreement are being
broken. The Agreement itself should include punitive financial sanctions and
potential loss of the registry rights to a TLD, if a registry fails to uphold
its own rules or the clauses of the Agreement. Proposal
6: The
chaos of the .info Sunrise and the legal challenge to Neulevel’s lottery are a
clear demonstration of the poorly-drafted, poorly-advised basis of the
ICANN-Registry agreements, which were seriously lacking in rigour and proposed
processes which were shattered by opportunists who could drive right through
them and abuse the systems. The agreements made between ICANN and a registry
should be subject to legal scrutiny and advice which is wholly independent of
their own parties (Joe Sims, if involved, was too close in my opinion) and not
associated with them. Proposal
7: There
were some perceived conflicts of interests in the selection process for
registries for the previous round of New gTLDs. Some people involved with the
setting up of the Afilias cartel had already been intimately involved with ICANN
(for example Ken Stubbs). There is therefore a strong case to be made for
removing ICANN from the selection process for new registries, on the grounds
that it is too closely associated with the registry and registrar community, and
that a new process – based on objective criteria which simply have to be met –
should be overseen by a more independent entity (to avoid charges of conflict of
interest or favouritism, whether fair or not). This is a world resource we are
discussing, and the selection processes to date have been too subjective, too
‘incestuous’ and frankly, too limited in the distribution of opportunities thus
far afforded. The world resource which is the DNS must be seen to be
administered openly and independently of what might be termed the small
‘insider’ community which ICANN has created around itself. Therefore it would be
better if authorization of new Registries was not carried out by ICANN
itself. Proposal
8: To
safeguard the fair distribution of the DNS, particularly at the launch of New
TLDs, it is essential that both ICANN and the registries adopt Responsiveness
Policies (even though this will have staffing implications). In the case of the
.info Sunrise, for example, it was the public who brought the collapse of the
process to notice, and who provided most of the evidence, and was making
constructive proposals to undo the damage and limit the harm to consumers. Fair
and serious concerns and questions were brought to ICANN, and ICANN was craven
in its failure to engage or respond. This should never happen again. As a
safeguard, ICANN and all new registries should be obliged to commit to a
Responsiveness Policy, along the lines of the one modeled in Australia by their
ccTLD, setting out maximum time allowed for responses, and a watchdog to oversee
quality of responses provided. ICANN’s current proposals for an Ombudsman/person
should be altered to make this Ombudsman/person wholly independent of ICANN
itself – ICANN should have a clear responsiveness policy which is not policed by
themselves, to ensure transparency and accountability in the way they administer
a world resource. There was a demonstrable lack of responsiveness at critical
moments in the launch of the previous TLDs. Proposal
9: I
propose a more open and rolling Evaluation Process, with clear publication of
agenda, discussion lists, and all relevant and contributed material. Registry
Evaluation Reports were a contractual and mandatory obligation, and had to be
submitted to ICANN, and be available for publication. The publication of these
reports was long delayed and has not been completed, resulting in the
obstruction of that process of open evaluation by all interested parties which
should have taken place. Indeed, the Task Group which was set up to propose the
methodology by which the New gTLDs were evaluated (a methodology which was
adopted by the ICANN Board) highlighted the need for this Registry data if ICANN
was to attract the participation of all constituencies in the Evaluation of the
“Proof of Concept” which these TLDs were supposed to be selected for. I propose
that the belated and limited process (of which this questionnaire is a part)
should be extended and made much more transparent in its formative stages. It
should have involved the early publication of Registry Evaluation Reports. And
this Evaluation Process, now being overseen by Sebastien Bachollet, should from
the outset have been much more transparent, with a web interface, a rolling and
published timetable and publication of all submissions as they occurred (to
afford open and public discussion and contributions) and to enable various
constituencies and individuals to have greater ‘ownership’ of the process. There
has been a perception that ICANN wanted to avoid an open and public evaluation
(which might involve some of the very questions they found awkward and have
studiously avoided). I propose that all Evaluation from this point onwards
should be (a) rolling and not merely retrospective (b) based on an open web
interface with publication of all contributions (c) staffed independently of
ICANN (d) informed by rolling agenda, clearly stated and tied to clear
timescales (e) supported by a moderated mailing list. Proposal
10: I
propose that ICANN’s system of accreditation should be reviewed in the light of
specific abuse of process by specific registrars during the launch period of the
previous gTLDs. I propose that a Registrars “Code of Conduct” should be
mandatory for all those registrars who wish to be endorsed with the industry’s
main “accreditation”, and that accreditation should constitute a professional
endorsement that brings with it specific standards, accountabilities, and
sanctions for those who breach such standards. In the event of fraud such as was
demonstrated in the .info Sunrise, accreditation should be removed to protect
the public. In the case of Resellers, Tucows (for example) should impose similar
and equivalent standards and codes of conduct on their resellers. Whereas ICANN has
tended to avoid ‘enforcement’ and espoused a laissez-faire approach, it has been
seen that the implications and effects of ICANN policy and agreements impact on
consumers, and that the world DNS needs to be guarded by specificity and
precision in the way registries and registrars operate – if left to local
trading standards, it becomes almost impossible for consumers to pursue distant
registrars in distant lands – ICANN, as overseer of agreements for New gTLDs,
has a responsibility to try to foresee the implications of its policies, and to
pre-empt problems. Part of that pro-active approach should include precise
powers set in place to sanction and intervene. Future contracts/agreements
should only be granted to Registries willing to accept enforcement and sanction,
and Registries relationships with registrars should be similarly constrained,
precisely and specifically. ICANN, or whatever entity is responsible for the
setting up of new registries and new gTLDs, should move from laissez-faire let
the consumer sink or swim, to pre-emptive constraint of cowboy activity and a
commitment to intervention in pursuit of the best standards and the integrity of
the processes. Proposal
11: I
propose that a specific gTLD be designated as an ‘identifier’ for trademark
holders (for example .reg or a similar suffix) but that the Sunrise principle be
abandoned for all other gTLDs. If ICANN is unwilling to do this, then a process
of retrospective checking should be set in place, along the lines of the
‘Domebase’ approach proposed in the .info launch by Professor Connor and myself
in similar forms: namely, that all names should be open and available for
Landrush, but allocation of these names would be “provisional”, and where
previously staked Trademarks have been submitted, the domains will be ‘locked’
until the trademark claims have been checked with formal documentation
submitted. If Sunrise was to be perpetuated for many TLDs, this documentation
would only need to be submitted once to be applicable for all TLDs. However,
there should be a principle of ALL domain names being ‘provisionally’ available
to the public at the time of Landrush. People do not mind waiting if they
believe the process is rigorous – they would have accepted this solution for the
.info distribution and the fiasco would have been largely averted.
In
detail, you would have a timescale like this: March
200x: Submission of Sunrise Trademark claims (initial data, checked for obvious
invalid data). June
200x: Publication of all domain names where Trademark claims have been
submitted. August
200x: End of 8 week period for submission of pre-registrations for
Landrush. September
200x: Process of “provisional allocation” of domains at Landrush. Immediate
registration granted where there is no Trademark claim. Name placed on “hold”
where a Trademark claim awaits verification. October
200x to March 200y: Verification of Trademark Claims. March
200y: Where the Verification succeeds, the domain passes to the Sunrise
claimant. Where the Verification has failed by the deadline, the domain passes
to the Landrush applicant. Proposal
12: I
propose that Registrars and their associates should be obliged to abide by
specific rules, common to all, to ensure a level playing field in the Round
Robin / Landrush distribution of domain names for a New gTLD: (a) all registrars
must have a website, and an application interface accessible to all; (b)
registrars themselves may not apply for themselves through their own company,
and nor may their associates – registrars may not warehouse domain names; (c)
each registrar will be allocated 5000 spaces in the Round Robin queue – if they
have 4500 applications then in the Round Robin they will have 4500 named ‘turns’
and 500 ‘blanks’ all mixed up… if they have just 20 applications, then in the
Round Robin they will have 20 named ‘turns’ and 4980 ‘blanks’ all mixed up :
either way, each applicant / member of the public will have the same chance with
one registrar as with another, and so registrars will not be able to game the
system with “short lists” – no domain name will be applied for more than once by
any one registrar – multiple applications for the same name will not be allowed
(d) the names applied for by each
registrar (but not the registrants) will be published by the Registry to
demonstrate fairness of process. Proposal
13: In
order to strengthen public participation in the governance of all TLDs, I
propose that with each registration of a domain name, there should be an
accompanying opt in/opt out membership of the At Large, the organization of
individual users of the internet all round the world. While membership and
participation in the At Large should not be limited to domain registrants, it
would greatly strengthen representation and participation of the public, if
people were ‘involved’ at the point of registering a domain, and this would go a
long way to demonstrating to USG, to UN, to ITU, to World, that the whole world
has a direct share in net governance and an opt-in at the point of getting a
domain. I would advocate that this opt-in / opt-out was made part of the
mandatory data submitted by registrars to registry, and that involvement and
representation of ordinary people in their own resource be made fundamental to
the future of ‘our’ internet and the governance of its DNS. This could be taken
further, by making it conditional for all applicants for new registries, that
they agree to an At Large representative of ordinary internet users having a
place on their Board. The same, of course, should also apply to
ICANN. APPENDIX
1 to RICHARD HENDERSON’S INTERVIEW
: As a
demonstration of the extent of the fraud and abuse of process carried out in the
.info Sunrise, I refer you to the following link to ICANNWatch.org where the
detail of activities by registrars and the Afilias cartel in particular makes
compelling and shocking reading. You have to take time to read the threads, but
the cumulative effect of the posts is a demonstration of the way the process was
abused, with disturbing conflicts of interest being
exposed: http://www.icannwatch.org/article.pl?sid=02/12/24/144912&mode=thread&threshold=-1 APPENDIX
2 to RICHARD HENDERSON’S INTERVIEW
: I have previously expressed
concerns about the Evaluation Process in which I am here taking part. While I am
grateful for the opportunity and invitation to participate, I refer you to the
essay I have published at ICANNWatch, outlining the history of the New gTLDs
Evaluation Process and misgivings I have expressed in the
past: |